Office of Sponsored Programs
Intellectual Property


Office of Sponsored Programs
E230 Thompson Hall
The State University of New York at Fredonia
Fredonia, NY 14063
Ph: (716) 673-3528

Intellectual Property and Technology Transfer (orange section)

Source: US Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000: http://www.copyright.gov/circs/

What Is Copyright

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.

Who Can Claim Copyright?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:

  • a work prepared by an employee within the scope of his or her employment; or
  • a work specially ordered or commissioned for use as:
  • a contribution to a collective work
  • a part of a motion picture or other audiovisual work
  • a translation
  • a supplementary work
  • a compilation
  • an instructional text
  • a test
  • answer material for a test
  • an atlas
  • if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Two General Principles

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.

Copyright and National Origin of the Work

Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author.

Published works are eligible for copyright protection in the United States if any one of the following conditions is met:

  • On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party,* or is a stateless person wherever that person may be domiciled; or
  • The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
  • The work is a sound recording that was first fixed in a treaty party; or
  • The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
  • The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
  • The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA). Request Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT), for further information.
  • The work comes within the scope of a Presidential proclamation.

What Works Are Protected?

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

  • literary works;
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

What Is Not Protected by Copyright?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

How to Secure a Copyright

Copyright Secured Automatically upon Creation

The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration. See "Copyright Registration."

Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the "work") can be fixed in sheet music ("copies") or in phonograph disks ("phonorecords"), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.

Publication

Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909. However, publication remains important to copyright owners. The 1976 Copyright Act defines publication as follows:

  • "Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

Publication is an important concept in the copyright law for several reasons:

  • Works that are published in the United States are subject to mandatory deposit with the Library of Congress. 
  • Publication of a work can affect the limitations on the exclusive rights of the copyright owner that are set forth in sections 107 through 121 of the law.
  • The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works (when the author's identity is not revealed in the records of the Copyright Office) and for works made for hire.
  • Deposit requirements for registration of published works differ from those for registration of unpublished works.

When a work is published, it may bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. Copies of works published before March 1, 1989, must bear the notice or risk loss of copyright protection.

Notice of Copyright

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.

The Copyright Office does not take a position on whether copies of works first published with notice before March 1, 1989, which are distributed on or after March 1, 1989, must bear the copyright notice.

Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

Form of Notice for Visually Perceptible Copies

The notice for visually perceptible copies should contain all the following three elements:

  1. The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and
     
  2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
     
  3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
    1. Example: © 2007 John Doe

The "C in a circle" notice is used only on "visually perceptible copies." Certain kinds of works-for example, musical, dramatic, and literary works-may be fixed not in "copies" but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are "phonorecords" and not "copies," the "C in a circle" notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.

Form of Notice for Phonorecords of Sound Recordings

The notice for phonorecords embodying a sound recording should contain all the following three elements:

  1. The symbol (the letter P in a circle); and
     
  2. The year of first publication of the sound recording; and
     
  3. The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.
     
    Example: 2006 A.B.C. Records Inc.

Position of Notice

The copyright notice should be affixed to copies or phonorecords in such a way as to "give reasonable notice of the claim of copyright." The three elements of the notice should ordinarily appear together on the copies or phonorecords or on the phonorecord label or container. The Copyright Office has issued regulations concerning the form and position of the copyright notice in the Code of Federal Regulations (37 CFR Section 201.20). For more information, request Circular 3, Copyright Notice.

Publications Incorporating U. S. Government Works

Works by the U. S. government are not eligible for U. S. copyright protection. For works published on and after March 1, 1989, the previous notice requirement for works consisting primarily of one or more U. S. government works has been eliminated. However, use of a notice on such a work will defeat a claim of innocent infringement as previously described provided the notice also includes a statement that identifies either those portions of the work in which copyright is claimed or those portions that constitute U. S. government material.

Example: © 2006 Jane Brown. Copyright claimed in Chapters 7-10, exclusive of U.S. government maps

Copies of works published before March 1, 1989, that consist primarily of one or more works of the U. S. government should have a notice and the identifying statement.

Unpublished Works

The author or copyright owner may wish to place a copyright notice on any unpublished copies or phonorecords that leave his or her control:

Example: Unpublished work © 2006 Jane Doe
 

Omission of the Notice and Errors in Notice

The 1976 Copyright Act attempted to ameliorate the strict consequences of failure to include notice under prior law. It contained provisions that set out specific corrective steps to cure omissions or certain errors in notice. Under these provisions, an applicant had 5 years after publication to cure omission of notice or certain errors. Although these provisions are technically still in the law, their impact has been limited by the amendment making notice optional for all works published on and after March 1, 1989. For further information, see Circular 3.

How Long Copyright Protection Endures

Works Originally Created on or after January 1, 1978

A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter. Works Originally Created before January 1, 1978, But Not Published or Registered by That Date These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-year terms apply to them as well. The law provides that in no case would the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.

Works Originally Created and Published or Registered before January 1, 1978

Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.

Public Law 102-307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office.

Public Law 102-307 makes renewal registration optional. Thus, filing for renewal registration is no longer required to extend the original 28-year copyright term to the full 95 years. However, some benefits accrue to renewal registrations that were made during the 28th year.

For more detailed information on renewal of copyright and the copyright term, request Circular 15, Renewal of Copyright; Circular 15a, Duration of Copyright; and Circular 15t, Extension of Copyright Terms.

Transfer of Copyright

Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.

A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.

Transfers of copyright are normally made by contract. The Copyright Office does not have any forms for such transfers. The law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties. For information on recordation of transfers and other documents related to copyright, request Circular 12 Recordation of Transfers and Other Documents.

Termination of Transfers

Under the previous law, the copyright in a work reverted to the author, if living, or if the author was not living, to other specified beneficiaries, provided a renewal claim was registered in the 28th year of the original term.* The present law drops the renewal feature except for works already in the first term of statutory protection when the present law took effect. Instead, the present law permits termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits. For works already under statutory copyright protection.

For works already under statutory copyright protection before 1978, the present law provides a similar right of termination covering the newly added years that extended the former maximum term of the copyright from 56 to 95 years. For further information, request Circulars 15a and 15t.

Copyright Registration

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

  • Registration establishes a public record of the copyright claim.
     
  • Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
     
  • If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
     

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at http://www.cbp.gov/xp/cgov/trade/trade_programs/international_agreements/free_trade/nafta/intellectual_prop_rights_lp.xml.

Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

Registration Procedures

Original Registration

To register a work, send the following three elements in the same envelope or package to:
Library of Congress
Copyright Office
101 Independence Avenue, SE
Washington, DC 20559-6000
  1. A properly completed application form.
     
  2. A nonrefundable filing fee* for each application.
     
  3. The deposit requirements vary in particular situations. The general requirements follow. 

If the work was first published in the United States on or after January 1, 1978, two complete copies or phonorecords of the best edition.

If the work was first published in the United States before January 1, 1978, two complete copies or phonorecords of the work as first published.

If the work was first published outside the United States, one complete copy or phonorecord of the work as first published.

If sending multiple works, all applications, deposits, and fees should be sent in the same package. If possible, applications should be attached to the appropriate deposit. Whenever possible, number each package (e.g., 1 of 3, 2 of 4) to facilitate processing.

Renewal Registration

To register a renewal, send:

  1. A properly completed application Form RE and, if necessary, Form RE Addendum, and
     
  2. A nonrefundable filing fee for each application. Each Addendum form must be accompanied by a deposit representing the work being reviewed. See Circular 15, Renewal of Copyright.

Effective Date of Registration

A copyright registration is effective on the date the Copyright Office receives all the required elements in acceptable form, regardless of how long it then takes to process the application and mail the certificate of registration. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving.

If you apply for copyright registration, you will not receive an acknowledgment that your application has been received (the Office receives more than 600,000 applications annually), but you can expect:

  • A letter or a telephone call from a Copyright Office staff member if further information is needed or
  • A certificate of registration indicating that the work has been registered, or if the application cannot be accepted, a letter explaining why it has been rejected.

Requests to have certificates available for pickup in the Public Information Office or to have certificates sent by Federal Express or another mail service cannot be honored.

If you want to know the date that the Copyright Office receives your material, send it by registered or certified mail and request a return receipt.

Mandatory Deposit for Works Published in the United States

Although a copyright registration is not required, the Copyright Act establishes a mandatory deposit requirement for works published in the United States. See the definition "publication". In general, the owner of copyright or the owner of the exclusive right of publication in the work has a legal obligation to deposit in the Copyright Office, within 3 months of publication in the United States, two copies (or in the case of sound recordings, two phonorecords) for the use of the Library of Congress. Failure to make the deposit can result in fines and other penalties but does not affect copyright protection.

Certain categories of works are exempt entirely from the mandatory deposit requirements, and the obligation is reduced for certain other categories. For further information about mandatory deposit, request Circular 7d, Mandatory Deposit of Copies or Phonorecords for the Library of Congress.

Who May File an Application Form?

The following persons are legally entitled to submit an application form:

  1. The author. This is either the person who actually created the work or, if the work was made for hire, the employer or other person for whom the work was prepared.
     
  2. The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. This category includes a person or organization who has obtained by contract the right to claim legal title to the copyright in an application for copyright registration.
     
  3. The owner of exclusive right(s). Under the law, any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term "copyright owner" with respect to any one of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.
     
  4. The duly authorized agent of such author, other copyright claimant, or owner of exclusive right(s). Any person authorized to act on behalf of the author, other copyright claimant, or owner of exclusive rights may apply for registration.

There is no requirement that applications be prepared or filed by an attorney.

APPLICATION FORMS, please go to www.copyright.gov/forms

Most Copyright Office forms are available on the Copyright Office website in fill-in version. Go to www.copyright.gov/forms and follow the instructions. The fill-in forms allow you to enter information while the form is displayed on the screen by an Adobe Acrobat Reader product. You may then print the completed form and mail it to the Copyright Office. Fill-in forms provide a clean, sharp printout for your records and for filing with the Copyright Office.

Fees

All remittances should be in the form of drafts, that is, checks, money orders, or bank drafts, payable to Register of Copyrights. Do not send cash. Drafts must be redeemable without service or exchange fee through a U. S. institution, must be payable in U. S. dollars, and must be imprinted with American Banking Association routing numbers. International Money Orders and Postal Money Orders that are negotiable only at a post office are not acceptable.

If a check received in payment of the filing fee is returned to the Copyright Office as uncollectible, the Copyright Office will cancel the registration and will notify the remitter. The filing fee for processing an original, supplementary, or renewal claim is nonrefundable, whether or not copyright registration is ultimately made. Do not send cash. The Copyright Office cannot assume any responsibility for the loss of currency sent in payment of copyright fees. For further information, request Circular 4, Copyright Fees.

Certain Fees and Services May Be Charged to a Credit Card

Some fees may be charged by telephone and in person in the office. Others may only be charged in person in the office. Credit card payments are generally authorized only for services that do not require filing of applications or other materials. An exception is made for fees related to items that are hand-carried into the Public Information Office.

Certifications and Documents Section: These fees may be charged in person in the office or by phone: additional certificates; copies of documents and deposits; searching, locating and retrieving deposits; certifications; and expedited processing.

Public Information Office: These fees may only be charged in person in the office, not by phone: standard registration request forms; special handling requests for all standard registration requests; requests for services provided by the Certifications and Documents Section when the request is accompanied by a request for special handling; search requests for which a fee estimate has been provided; additional fee for each claim using the same deposit; full term retention fees; appeal fees; Secure Test processing fee; short fee payments when accompanied by a Remittance Due Notice; in-process retrieval fees; and online service providers fees.

Reference and Bibliography Section: Requests for searches on a regular or expedited basis can be charged to a credit card by phone.

Records Maintenance Unit: Computer time on COINS, printing from the Optical Disk, and photocopying can be charged in person in the office.

Fiscal Control Section: Deposit Accounts maintained by the Fiscal Control Section may be replenished by credit card. See Circular 5, How to Open and Maintain a Copyright Office Deposit Account.

NIE recordations and claims filed on Form GATT may be paid by credit card if the card number is included in a separate letter that accompanies the form.

This information is not exhaustive. For further information:
 
Information via the Internet: Circulars, announcements, regulations, other related materials, and all copyright application forms are available from the Copyright Office Website at www.copyright.gov.
 
Information by telephone: For general information about copyright, call the Copyright Public Information Office at (202) 707-3000. The tty number is (202) 707-6737. Staff members are on duty from 8:30 am to 5:00 pm, eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and information circulars you want, you may request them 24 hours a day from the Forms and Publications Hotline at (202) 707-9100. You may leave a recorded message.
 
Information by regular mail: Write to:
 
Library of Congress
Copyright Office
Publications Section
101 Independence Avenue, SE
Washington, DC 20559-6000

COPYRIGHTS - FAQ

What is not protected by copyright?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
     
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
     
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
     
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
     

Does copyright protect an author's creative ideas?

No. Copyright shelters only fixed, original and creative expression, not the ideas or facts upon which the expression is based. For example, copyright may protect a particular song, novel or computer game about a romance in space, but it cannot protect the underlying idea of having a love affair among the stars. Allowing authors to monopolize their ideas would thwart the underlying purpose of copyright law, which is to encourage people to create new work.

For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. For instance, anyone is free to use information included in a book about how the brain works, an article about the life and times of Neanderthals or a TV documentary about the childhood of President Clinton -- provided that that they express the information in their own words.

Facts are not protected even if the author spends considerable time and effort discovering things that were previously unknown. For example, the author of the book on Neanderthals takes ten years to gather all the necessary materials and information for her work. At great expense, she travels to hundreds of museums and excavations around the world. But after the book is published, any reader is free to use the results of this ten year research project to write his or her own book on Neanderthals -- without paying the original author.

When can I use a work without the author's permission?

When a work becomes available for use without permission from a copyright owner, it is said to be "in the public domain." Most works enter the public domain because their copyrights have expired.

To determine whether a work is in the public domain and available for use without the author's permission, you first have to find out when it was published. Then apply the following rules to see if the copyright has expired:

  • All works published in the United States before 1923 are in the public domain.
     
  • Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.
     
  • For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
     
  • Lastly, if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.
     

The Copyright Office will check renewal information for you, at a charge of $20 per hour. (Call the Reference & Bibliography Section at 202-707-6850.) You can also hire a private copyright search firm to see if a renewal was filed. Finally, you may be able to conduct a renewal search yourself. The renewal records for works published from 1950 to the present are available online at http://www.copyright.gov/. Renewal searches for earlier works can be conducted at the Copyright Office in Washington D.C. or by visiting one of the many government depository libraries throughout the country. Call the Copyright Office for more information.

With one important exception, you should assume that every work is protected by copyright unless you can establish that it is not. As mentioned above, you can't rely on the presence or absence of a copyright notice (©) to make this determination, because a notice is not required for works published after March 1, 1989. And even for works published before 1989, the absence of a copyright notice may not affect the validity of the copyright -- for example, if the author made diligent attempts to correct the situation.

The exception is for materials put to work under the "fair use rule." This rule recognizes that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public. For example, scholars must be free to quote from their research resources in order to comment on the material. To strike a balance between the needs of a public to be well-informed and the rights of copyright owners to profit from their creativity, Congress passed a law authorizing the use of copyrighted materials in certain circumstances deemed to be "fair" -- even if the copyright owner doesn't give permission.

Often, it's difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:

  • Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it's usually not fair.)
  • How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
  • How was the material used? It is a transformative use? (If the material was used to help create something new, it is more likely to be considered a fair use than if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use.

As a general rule, if you are using a small portion of somebody else's work in a non-competitive way and the purpose for your use is to benefit the public, you're on pretty safe ground. On the other hand, if you take large portions of someone else's expression for your own purely commercial reasons, the rule usually won't apply.

What are the exceptions to the rule that the creator of a work owns the copyright?

Copyrights are generally owned by the people who create the works of expression, with some important exceptions:

  • If a work is created by an employee in the course of his or her employment, the employer owns the copyright.
     
  • If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be "made for hire," the commissioning person or organization owns the copyright only if the work is (1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. Works that don't fall within one of these eight categories constitute works made for hire only if created by an employee within the scope of his or her employment.
     
  • If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.
     

Source: Stanford University, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-a.html#1


Page modified 7/15/14