Copyright Basics

COPYRIGHT BASICS
Linda Motter
©
ThismaterialusedwithpermissionofMarc
Lindsey,authorandWashingtonStateUniversity.
Allrightsreserved

WHAT COPYRIGHT PROTECTS
 Promotion of the Arts
 Difference Between Copyright, Patent, &
Trademark
 Artist’s Exclusive Rights
 What is Required to be Protected by Copyright
 What is Not Required
Lindsey,authorandWashingtonState
University.Allrightsreserved

PROMOTION OF THE ARTS
 Copyright law is intended to promote and advance
art.
 Literary works
 Music works
 Pantomimes
 Pictorial, graphics, and sculptural works
 Motion pictures
 Sound recordings
 Architectural works
 Computer programs

DIFFERENCE BETWEEN COPYRIGHT, PATENT
AND TRADEMARK
 All are considered “intellectual property”
 Patents
 Give inventors exclusive right to duplicate their inventions'
design
 Cover devices, formulas, tools, and anything that has utility.
 Trademark ™
 Is a word, phrase, or logo that identifies a product, a service,
or person or company that offers a product or service to the
public
 Copyright applies to any creative work and prevents
others from copying the work.
 Copyright last for the artist’s or author’s life plus 70 years
(there are exceptions if copyright is held by company)

WHAT IS REQUIRED TO BE PROTECTED BY
COPYRIGHT
 Fixed in a Tangible Medium
 The idea behind the work must be able to be read,
seen, heard, or understood by others.
 Original
 You cannot claim copyright protection to work that was
created by someone else.
 Creative
 How creative? The Supreme Court says, “…the
requisite level of creativity is extremely low; even a
slight amount will suffice.”
 This includes a child’s finger painting, a snowman, sand
castle, graffiti even email if it is original an the least bit
creative.

WHAT IS NOT REQUIRED
 After 1978 there are no formalities required.
 Copyright springs into existence the instant the
work becomes fixed to a tangible medium.

WHAT COPYRIGHT DOES NOT PROTECT
 Material not creative enough
 Idea/Expression dichotomy
 Expired Copyright – “Public Domain”
 Works Copied for Fair Use

MATERIALS NOT CREATIVE ENOUGH TO
PROTECT
 There are no lines in the sand
 The Copyright Act says,
 In no case does copyright protection for an original work
of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or
discover, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.

IDEA/EXPRESSION DICHOTOMY
 Copyright law protects the expression of facts and
ideas, not the ideas and facts themselves.
 Works not fixed in a tangible medium are just facts.
 Ideas are fair game for everyone to express in their
own words.

WORKS WITH EXPIRED COPYRIGHTS –
“PUBLIC DOMAIN”
 Works in public domain anyone can copy, make
derivatives, distribute, perform, and display without
permission. There are various ways to get into the
Public Domain
 Copyright has expired
 Author or artist donates the work
 Created by corporation duration is 95 years from the
publication date or 120 years from the date of creation
(whichever is shorter)
 Work was created by the federal government
 Any work before 1978 whose copyright formalities were
not observed

DURATION OF COPYRIGHTS
 Rule of Thumb
 Any published works created before 1923
 Unpublished works created before 1883
 Copyright scholars created this chart
 www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
 Where to find
 Remember do your own research do not rely on what
others profess as “public domain”
 This website is a good starting point to find public
domain resources
 http://publishing.wsu.edu/copyright/pd_resources.html

WORK THAT IS COPIED AS FAIR USE-
MUST CONSIDER…..
 Four Factors of Fair Use
 Juggling the Factors of Fair Use
 Purpose and Character of the Use
 Nature of the Material Copied
 Amount of the Material Copied
 Commercial Effect
 Guidelines for Navigating the Commercial Effect
Factor
 Special Fair Use Cases
 Fair Use Slide Rule
 Classroom Guidelines
 Future of Fair Use

WHAT IS FAIR USE
 Fair use is the exception to the rule that no one
may exercise the author’s or artist’s exclusive rights
– for example, copying the work – without
permission.
 Was established “…to avoid rigid application of the
copyright statue when, on occasion, it would stifle
the very creativity which that law was designed to
foster.”
 Fair use is indispensable in higher education, so its
well worth the time and resources to learn what you
can about the doctrine and use it in good faith.

FOUR FACTORS OF FAIR USE
 The purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes
 Is the work for criticism, comment, news reporting,
education, scholarship, or research
 The nature of the copyrighted work
 The amount and substantiality of the portion used in
relation to the copyrighted work as a whole
 The effect upon the potential market for or value of
the copyrighted work

JUGGLING THE FACTORS OF FAIR USE
 Not necessary for all four factors to qualify as fair
use
 The factors are used for “balancing the equities”
rather than as a “definitive or determinative” test
and
 Are to be weighted together, in light of the
objectives of copyright, to promote the progress of
science and the useful arts

PURPOSE AND CHARACTER OF THE USE
 Do you intend to make a profit or other commercial
benefit?
 Unless your copy serves a public interest or is
transformed into a new product, any commercial or
profit-making purpose will weight this factor against fair
use.

NATURE OF THE MATERIAL COPIED
 The less creative the material is, the more this
factor favors fair use.
 Materials that are “predominantly factual” or
“scientific works” will make this factor lean in favor
of fair use.

AMOUNT OF MATERIAL COPIED
 The more you copy and the closer the copy is to the
original, the less likely it will be fair use.
 The nature of both the copy and the original makes
a difference is weighing this factor.
 Considers the quantitative and qualitative value of
the materials that are copied.
 Copying the materials essence or heart of the content
 The nature of the material and the amount copied
are interrelated

COMMERCIAL EFFECT
 Considers the extent of harm the copies actually
have on the artist’s or author’s market.
 Takes into consideration hypothetical harm and potential
market
 Most difficult to analyze because many pertinent
factors are unknown.

SUGGESTED GUIDELINES FOR NAVIGATING
THE COMMERCIAL EFFECT FACTOR
 Avoid copies that you intend to distribute widely that
might supplant or substitute for a product that would
normally be purchased
 Do not post copies on the World Wide Web with
open access
 Avoid making copies for any commercial or profit-
making pursuit

SUGGESTED GUIDELINES FOR NAVIGATING
THE COMMERCIAL EFFECT FACTOR
 In copy or display projects where it appears to be a
struggle qualifying for fair use
 Document effort to contact the copyright holder and
request permission
 Proceed without permission only if you cannot find the
copyright holder or cannot get any response and you
get the approval of your institution’s legal counsel first.
 Avoid any copy project where the intention is to
save the students money on materials they would
normally purchase

SPECIAL FAIR USE CASES
 Video Time Shifting
 The Supreme Court ruled that making video recorder
copies of entire movies or other programs from cable,
satellite, or TV was a fair use, this is generally for
nonprofit, home use
 Parody
 The Supreme Court defines parody as:
 The use of some elements of a prior author’s composition to
create a new one that , at least in part, comments on the
author’s works… If, on the contrary, the commentary has no
critical bearing on the substance or style of the original
composition, which the alleged infringer merely uses to get
attention or to avoid the drudgery of working up something
fresh, the claim to fairness in borrowing from author’s work
diminished accordingly, and other factors, like the extent of its
commerciality, loom larger.

PARODY CONT.
 A parody is a new work subject to it’s own copyright
protection
 The parody MUST criticize the original work to
qualify for fair use
 A music parody can copy borrow most of the
amount of the original to the extent the parody
requires, and be entirely commercial because the
parody has a different audience than the original
song and thus poses little or no harm to the original
song’s market.

FAIR USE SLIDE RULES –
PURPOSE OF USE
1. __Non profit
2. __Education
3. __Research
4. __Criticism
5. __New & Different
Product
6. __Comparative
advertising
7. __Parody
1. __For profit or
commercial purpose
2. __Entertainment
3. __Saving costs
4. __Other purposes
Favoring Fair Use Against Fair Use

NATURE OF MATERIAL COPIED
1. __Published
2. __Out of Print
3. __More factual than
creative
1. __Unpublished
2. __Creative or fictional

AMOUNT OF MATERIAL COPIED
1. __Just enough to serve
a fair use purpose
2. __Small amount of total
1. __Heart of the work
2. __More than is needed
to serve purpose
3. __Large amount of total

COMMERCIAL EFFECT
1. __Copy is not a
substitute for the
original product
2. __Copy is not for sale or
widely distributed
3. __Copy is not published
or posted online
4. __Parody – has a
different market
5. __Cannot get
permission
1. __Heart of the work
2. __More than is needed
to serve purpose
3. __Large amount of total

FOUR FACTOR BALANCE SHEET
1. Purpose of the Use: For___ Against___
2. Nature of Material Copied For___ Against___
3. Amount of Material Copied For___ Against___
4. Commercial Effect For___ Against___
 Total Favoring____ Total Against _____

CLASSROOM GUIDELINES
 A single copy may be made of any of the following
by or for a teacher for use in research, teaching, or
preparation to teach a class:
 Single Copying for Teachers
 A chapter of a book
 An article from a periodical or newspaper
 A short story, short essay or short poem, whether or not
from a collective work
 A chart, graph, diagram, drawing, cartoon or picture
from a book, periodical, or newspaper

CLASSROOM GUIDELINES
 Multiple Copies for Classroom Use
 Multiple copies may be made by or for the teacher
giving the course for classroom use or discussion
provided that:
 The copying meets the tests of brevity and spontaneity
as defined
 Meets the cumulative effect test as defined
 Each copy includes a notice of copyright.

DEFINITIONS
 Brevity
(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more
than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or
(b) an excerpt from any prose work of not more than 1,000 words or 10% of the
work, whichever is less, but in any event a minimum of 500 words.
[Each of the numerical limits stated in "i" and "ii" above may be expanded to permit
the completion of an unfinished line of a poem or of an unfinished prose
paragraph.]
(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or
per periodical issue.
(iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often
combine language with illustrations and which are intended sometimes for children
and at other times for a more general audience fall short of 2,500 words in their
entirety. Paragraph "ii" above notwithstanding, such "special works" may not be
reproduced in their entirety; however, an excerpt comprising not more than two of
the published pages of such special work and containing not more than 10% of the
words found in the text thereof, may be reproduced.

DEFINITIONS – CONT.
 Spontaneity
(i) The copying is at the instance and inspiration of
the individual teacher, and
(ii) The inspiration and decision to use the work and
the moment of its use for maximum teaching
effectiveness are so close in time that it would be
unreasonable to expect a timely reply to a request
for permission.

DEFINITIONS – CONT.
 Cumulative Effect
(i) The copying of the material is for only one course in the school in which the copies are made.
(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor
more than three from the same collective work or periodical volume during one class term.
(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.
[The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and
current news sections of other periodicals.]
III. Prohibitions as to I and II Above
Notwithstanding any of the above, the following shall be prohibited:
(A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective
works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are
accumulated or reproduced and used separately.
(B) There shall be no copying of or from works intended to be "consumable" in the course of study or teaching.
These include workbooks, exercises, standardized tests and test booklets and answer sheets and like
consumable material.
(C) Copying shall not:
 substitute for the purchase of books, publishers’ reprints or periodicals;
 be directed by higher authority;
 be repeated with respect to the same item by the same teacher from term to term.
 No charge shall be made to the student beyond the actual cost of the photocopying.

GETTING PERMISSION
 General guidelines for determining when to obtain
permission
 Course packs or copies of textbooks, journal articles, or
other materials that will be uses as the sole course
material for any class in which a textbook is available
and traditionally used.
 Any copies that are sold or used in commercial venture
with no educational, research, or commentary purpose
 Any copies widely distributed or posted online that
create a substitute for the original product that was
copied.

WHERE TO GET PERMISSION
 The source and method of getting permission vary according
to the nature of the materials you wish to copy.
 Print Media
Copyright Clearance Center
222 Rosewood Dr.
Danvers, MA 01923
Phone: (978) 750-8400
Web: www.copyright.com
E-mail: info@copyright.com
 You will need to establish an account and provide the
following reference information about the materials you want
to copy:
 Title
 Author
 Book's date or edition
 Portion of the book you want to copy
 Standard number or ISSN, ISBN or LCCN

WHERE TO GET PERMISSION - IMAGES
 Images and Photos
 You will need to go directly to the image’s artist, or
creator, or photographer.
 All photos you see on the web were chosen from either
subscription collections or collections where the
photographer could be traced and permission obtained
directly.
 Look for free sources if you can not obtain permission or
use a online photo collection.
 Clipart.com
 Corbis.com
 Image.altavista.com
 GettyImages.com
 Fotosearch.com

WHERE TO GET PERMISSION - MUSIC
 Music is the most licensed and regulated.
 Most effective way to get permission
 Contact all licensing agencies
 American Society of Composers, Authors, and Publishers (ASCAP)
(212) 621-6000
info@ascap.com
www.ascap.com
Broadcast Music, Inc. (BMI)
(800) 925-8451
www.BMI.com
genlic@BMI.com
Society of European Stage Authors and Composers (SESAC)
(800) 826-9996
(212) 586-3450
license@sesac.com
Harry Fox Agency
www.harryfox.com

WHERE TO GET PERMISSION - AUDIOVISUAL
 Limited portions of audiovisual works may be performed
for education under fair use.
 Entire portions may only be shown for education or
entertainment if you have permission.
 Permission granting agency:
 Motion Picture Licensing Corporation (MPLC)
info@mplc.com
www.mplc.com
(800) 462-8855
(310) 822-8855
 If you have trouble getting permission through the
agencies, you can try the publisher directly, but you will
need much time, patience, and luck.

Copyright Basics

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