Introduction to This Guide
No doubt throughout your life you've become familiar with the phrase "Copyright (Year)" and the associated symbol ©. You've seen it on the obverse of the title page in books you read, at the end of movies for which you stick around through the closing credits, and on various websites you visit. Unless you're already well-schooled in copyright law, you generally know that you shouldn't make wholesale copies of books, movies, articles, or songs, but you aren't really sure what you can do with these items if you want to incorporate them into your academic work. This guide and the linked resources will help you gain a better understanding of copyright law and in particular of two provisions that are especially relevant to academic work: fair use and the T.E.A.C.H. Act.
What is Copyright?
Copyright is a bundle of exclusive rights that is enjoyed by the creator of a work. Let's put this concise but legalese statement into a more accessible form. Copyright is a set of laws, including statutes passed by Congress and court decisions interpreting and applying those statutes, that grant to the creators of written works (books and articles, scripts, sheet music), performances (movies, live shows, TV programs), sound recordings (also called phonorecordings) and other creative works the rights to exclusive enjoyment of the fruits of their works (e.g., copying them and receiving payment for their use) for a limited period of time. The power to regulate copyright is expressly granted to Congress in article I, section 8 the United States Constitution: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries[.]"
The statutes that Congress passed are found in Title 17 of the United States Code (U.S.C.). The provisions you find there include enumeration of the rights that are exclusively held by creators; several limitations on those exclusive rights, such as fair use, T.E.A.C.H., and ones reserved for libraries; and the penalties to which you might be subjected if you unlawfully copy or use the copyrighted material.
Copyright or Plagiarism?
Copyright infringement and plagiarism might arise from the same actions, but the two are independent offenses, and copyright infringement is the only one of them punishable under federal law.
Plagiarism is the quoting or other incorporation of material that was created by someone else without your acknowledging its source, implying or otherwise leading to the inference that the incorporated material was your own. The way to avoid plagiarism is to always attribute the work of others when you incorporate it into your own work, regardless whether you use direct quotations.
Copyright infringement occurs when you reproduce all or part of the work of others, if that is not allowed by one of the limitations, regardless whether you attribute the work to its original source.
If you copy someone else's material without attribution, then you may be committing both plagiarism and copyright infringement. If you copy it while attributing it to the original author, but do not have the copyright holder's permission or are not within one of the limitations, you are not committing plagiarism but you may be infringing the copyright.
Although plagiarism is not a criminal offense, it is a serious breach of ethics, especially in a university community. Committing plagiarism may put your academic career or even your future professional career at risk.
When May I Use Copyrighted Material?
The General Rule
If you are an individual who wants to use copyrighted material, whether to incorporate it into your own work such as a research paper, or to show it to a class or other group, such as an instructor who wishes to show all or part of a film or video, you must comply with copyright law in either of the following ways:
- Obtain the permission of the copyright holder.
- Take advantage of one of the limitations on the copyright holder's exclusive rights under the copyright law. The two most common limitations which may be available to you are fair use and the T.E.A.C.H. Act limitations.
Is an item protected by copyright?
If an item is not protected by copyright, then it is in the public domain and you are free to use it. So your first step is determining whether in fact the item is protected by copyright. Recall that the constitutional grant of copyright power to Congress expressly says the exclusive right is for "limited times." Therefore a copyright is not indefinite, and when it expires, the item enters the public domain. You are free to use anything that is in the public domain. However, determining whether an item is still under copyright may be more difficult than you would expect, primarily because amendments to U.S. copyright law have changed the duration of copyright. Whereas early in the twentieth century copyright was for a renewable period of 28 years, under current law copyright for items created in 1978 or after and held by a natural person is for the creator's life plus seventy years and for anonymous works and "works-for-hire" it is ninety-five years after first publication or 120 years after its creation, whichever expires first. The U.S. Supreme Court has so far found no constitutional problems when Congress extends the duration of copyright, and in fact the court has even allowed Congress to retroactively extend copyright to items where copyright had expired under prior provisions of the law and they had entered the public domain.
Because Congress has acted to change the duration of copyright several times since 1900, the easiest way to determine whether an item is still under copyright is to consult a chart crafted by knowledgeable sources. Two good ones are available at the Cornell Copyright Information Center and the intellectual property law firm Brown & Michaels.
If you can readily identify the copyright holder, which is generally easy to do with commercially published materials, then you may communicate with the holder to request permission to use the materials. Obtaining such permission is the most certain way to remove any doubt about your legal liability for using them. In many cases, however, the identity or contact information of the copyright holder may be difficult to ascertain. The publisher may have gone out of business, an individual may have died and it is unclear who now holds the copyright, or the publication itself may not have had a clear statement of copyright ownership. Note that under current law, copyright attaches as soon as the material is placed into a fixed, tangible medium. A statement of copyright is not necessary.
Some publications include a grant of specific permissions within their copyright statement. The organization Creative Commons publicizes a set of licenses with which a copyright holder can grant various levels of blanket permissions.
There are organizations that serve as agents for copyright holders and in some cases can help identify the holder. The best known of these is the Copyright Clearance Center (CCC). CCC represents publishers and other copyright holders and offers licenses for the use of materials. You can search for materials it manages at its web site. You also can check the website of the publisher; e.g. see the McGraw-Hill permissions page. Published sheet music used for performances is commonly licensed by the American Society of Composers, Authors, and Publishers (ASCAP) or Broadcast Music Inc. (BMI). Films and videos that are to be shown in public performances outside of a classroom situation are licensed from Swank Motion Pictures, Inc. Note that videos you purchase at retail are generally licensed only for personal home use and may not be used for public performance. Classroom showings, however, may fall under the T.E.A.C.H. provisions discussed elsewhere in this guide.
You may find that obtaining permission is too costly, too time-consuming, or you cannot find someone with authority to grant it. In that case you will need to rely on the fair use or T.E.A.C.H. Act provisions to use the material. You should never assume that your use of material is covered by those provisions; rather, you must be aware of the requirements of the provision and make a conscious determination whether your use is covered.