Here are some frequently asked questions about copyright, educational use of copyrighted works (fair use), and other intellectual property topics that the ULS has received over time. These answers do not constitute legal advice. Instead, they offer best practices in using copyrighted works for educational use at the University of Pittsburgh.
If your cannot find an answer to your question here or through other means, that does not alleviate you of the responsibility to comply with U.S. Copyright Law.
- What is copyright?
- What are these “exclusive rights” under U.S. Copyright Law?
- What is protected by copyright?
- What is not protected by copyright?
- Are images protected under copyright law?
- If I don’t make money from using someone else’s work, there’s no harm done, right?
- What is “fair use”?
- What are the “four factors” of fair use?
- Are there any resources I can use to help me determine what is a fair use of a copyrighted work?
- What about works that I have written or produced? Can I use them any way I want to? What about publishing them on my web site?
- What is a “work made for hire”?
- What can I do to protect my work under copyright law?
- How do I get the copyright symbol to appear on my works? Is there a certain format I have to use?
- What is the “public domain”?
- How do I know if a work is copyrighted or if it is in the public domain?
- Are all government publications in the public domain?
- If a book is out of print, do I have to worry about copyright?
- To what extent am I personally liable as a faculty member, student, or employee of the University of Pittsburgh for violating copyright law?
- How much information can I use from a copyrighted work without getting permission?
- When should I get permission to use a copyrighted work?
Copyright is a set of rights given to a copyright owner or holder (an author, a filmmaker, a musician, or even a publisher) for an original and creative work fixed in a tangible medium of expression (an article, a book, a movie, a recording, a website, and more).
Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code). However, most countries in the world provide some form of copyright protection for works created by authors in their countries.
Section 106 of the 1976 Copyright Act generally gives the owner of copyright the right to do and to authorize others to do the following:
- Reproduce the work
- Prepare works based upon the original (also known as derivative works)
- Distribute copies of the work to the public (by sale or other transfer of ownership; by rental, lease, or lending)
- Perform the work publicly (if it’s a literary, musical, dramatic, or choreographed works, or if it’s a pictorial, graphic, or sculptural works–including images from a motion picture or other audiovisual works)
- Display the work publicly (if it’s a literary, musical, dramatic, or choreographed works, or if it’s a pictorial, graphic, or sculptural works–including images from a motion picture or other audiovisual works)
- Perform the work publicly or through digital audio transmission (if it’s a sound recording)
“An original and creative work fixed in a tangible medium of expression”–in other words, things like articles, books, movies, recordings, pictures, website text and images, designs, and more.
According to the U.S. Copyright Office’s helpful publication, Copyright Basics (Circular 1), these are some of the types of works that can be protected under U.S. Copyright Law:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works (such as dances)
- Pictorial, graphic, and sculptural works (such as paintings, designs, photographs, and images)
- Motion pictures and other audiovisual works (including TV shows, commercials, and others)
- Sound recordings (whether in a physical format, such as a CD, or in digital format, such as an iTunes file)
- Architectural works
These categories should be viewed broadly. For example, computer programs and most “compilations” may be considered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
According to Copyright Basics, several types of works are generally not protected under U.S. copyright law. For example,
- Works that “have not been fixed in a tangible form of expression”–such as choreographic (dance) works that have not been notated or recorded or “in the moment” (improvisational) speeches or performances that have not been written or recorded
- Titles, names, short phrases, and slogans; familiar symbols or designs; simple variations of typographic ornamentation, lettering, or coloring; simple listings of ingredients or contents
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices. However, a description, explanation, or illustration may be protected by copyright.
- 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). These works are considered neither original nor creative.
Yes. The U.S. Copyright Office states that
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. (Copyright Basics [Circular 1])
“Original works of authorship” include “tangible forms of expression” such as “pictorial, graphic, and sculptural works.”
In simpler words, copyright covers any and all images in any format, including digital images.
Wrong. If you are using a significant portion of someone else’s work without permission, you are infringing the rights of the copyright owner, and you may be affecting the potential market value of the original work. In other words, your use of the work may not be a “fair use”.
For example, if a professor makes copies of a book for each member of his/her class, that means that many fewer copies of the book will be sold. So even though the professor did not make any money, he/she still deprived the copyright owner of the work from receiving the royalties for those lost sales.
According to the U.S. Copyright Office’s factsheet on “Fair Use,” the rights of copyright owners are subject to limitations. These limitations are outlined in Sections 107 through 118 of the U.S. Copyright Law.
One of the more important limitations is the doctrine of “fair use.” Fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
Section 107 of U.S. Copyright Law provides four factors to consider when considering whether the use of copyrighted works is fair use.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work (e.g., whether it is factual or creative in nature)
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
The U.S. Copyright Office’s factsheet on “Fair Use” notes that
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
9. Are there any resources available to help me determine what may be a fair use of a copyrighted work?
Yes, thankfully, there are. Here are a few that we recommend you try:
- “Thinking through fair use,” an interactive tool from the University of Minnesota
- “Using the four factor fair use test” from the University of Texas at Austin
- The “Fair Use Checklist” from Columbia University
- The “Copy Photography Computator” from the Visual Resources Association. (This one is designed to help determine fair use of images.)
Keep in mind that these resources provide guidance to help you determine what may be fair use of a copyrighted work. They do not provide a guarantee that your use is a fair one. Only an expert in intellectual and copyright law may be able to make that final determination.
10. What about works that I have written or produced? Can I use them any way I want to? What about publishing them on my web site?
This depends on whether or not you actually own the copyright to your work. In some cases, your work may be considered a “work made for hire” or you may have assigned or transferred your copyright to a publisher or other organization. If a publisher or university owns the copyright, you will need permission to use the work even if you are the author.
Section 101 of U.S. Copyright Law defines a work made for hire as:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as 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 .
Generally, if you create a work under the direction or authority of an employer, the employer is entitled to the copyright instead of the author. See the University of Pittsburgh Policy 11-02-02 on copyright for information about how works for hire are handled at Pitt.
Once a work has been fixed in a tangible medium of expression, it is automatically protected under copyright law. See “How to Secure a Copyright” in Copyright Basics (Circular 1) from the U.S. Copyright Office for more information, including the advantages of registering your work with the U.S. Copyright Office.
13. How do I get the copyright symbol to appear on my works? Is there a certain format I have to use?
See the “Notice of Copyright” section in Copyright Basics (Circular 1) from the U.S. Copyright Office for information and guidelines about copyright notices. It is important to note that a copyright notice is no longer required in order for a work to be protected by copyright law. However, if you do include such notice on your works (including web pages and digital images) it prevents others from claiming “innocent infringement” when unlawfully copying your work.
The © symbol can be produced on a Web page using HTML by typing © or ©. In Microsoft Word, the © symbol is produced by typing ALT+CTRL+C.
A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.
The short answer? Tools such as “Is It Protected by Copyright?” (also known as the Digital Copyright Slider) may help you determine the copyright status of a work and whether it’s in the public domain.
However, to be absolutely sure about the copyright status of any work, it is necessary to do a search with the U.S. Copyright Office or have an outside agency such as the Copyright Clearance Center investigate the status of a work.
The long answer?
It’s complicated. This was changed significantly on October 29, 1998, with the passage into law of P.L. 105-298, Copyright Term Extension Act (also known as the Sonny Bono Term Extension Act). Basically, this law extended the duration of copyright by twenty years for all works which were under copyright protection as of October 29, 1998.
Works created on or after January 1, 1978
Section 302 of the U.S. Copyright Law states that “Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and fifty [now seventy] years after the author’s death.” (Note: registration is no longer required for copyright protection since the Berne Convention took effect in 1989.)
Works created before January 1, 1978
Before this time, information was required to be registered with the U.S. Copyright Office in order to be protected under copyright laws for a 28-year term. Renewal for an additional term of 47 years was then possible. Almost everything published in the U.S. before 1923 is considered to be in the public domain (as of 1998) because it was published more than 75 years ago (until P.L. 105-298, the longest possible term of copyright). It is not simple, however to determine copyright status for materials created during this time period.
To help in the process of determining copyright status, you have your choice of several resources:
- The informational table titled “When Works Pass into the Public Domain” by Laura Gasaway is available on the University of North Carolina at Chapel Hill Web site.
- “Is It Protected by Copyright?” (also known as the Digital Copyright Slider), a tool from the American Library Association that allows for an interactive approach to help determine the copyright and public domain status of works published in the United States.
- Consulting legal counsel experienced in copyright and intellectual property issues is also sometimes necessary to help understand the intricacies of copyright status for certain works.
- Chapter 3: Duration of Copyright from Title 17 of the U.S. Copyright Law may help your understanding of the intricacies of copyright status for these works.
To be absolutely sure about the copyright status of any work, it is necessary to do a search with the U.S. Copyright Office or have an outside agency such as the Copyright Clearance Center investigate the status of a work. See How to Investigate the Copyright Status of a Work (Circular 22) from the U.S. Copyright Office, for more information.
Generally, U.S. government publications are considered in the public domain, meaning they can be copied, transmitted, and otherwise used without restrictions.
There are exceptions, however.
U.S. government publications
- Some restrictions may apply if the U.S. government publication contains copyrighted information within it or was created by an outside government contractor. See Section 105 of the U.S. Copyright Statute for more details on this issue.
- If a publisher reprints government information, any enhancements or additions to the original work fall under the copyright of the publisher.
- U.S. Postal Service stamps are not in the public domain.
State government publications
- State government publications may or may not be copyrighted. It is necessary to determine whether or not this is the case before using these materials.
Foreign government publications
- Foreign government publications are usually considered to be under copyright in accordance with several international copyright treaties.
Yes, you do. Out-of-print is not the same as out-of-copyright or in the public domain. If the book is not in the public domain, the copyright is still in effect and should be respected.
One possible exception is in the case of replacing lost, stolen, or damaged materials. This is mentioned in University of Pittsburgh Policy 10-04-01:
It is not permissible to copy an entire issue, volume, or complete work. However a copy may be made for replacement purposes if the item has been lost, stolen, or damaged, and
It has been determined that a copy is not available through normal trade sources at a fair price.
Note that this is for replacement purposes only and would not be applicable for distribution purposes. Normal trade sources would include the out-of-print market in this case.
18. To what extent am I personally liable as a faculty member, student, or employee of the University of Pittsburgh for violating copyright law?
Both the University and the individual may be liable in a civil suit for willful infringement of U.S. Copyright Law. Section 504 (c) (2) of the law states that willful infringement may result in damages of up to $150,000.
Section 504 (c)(2) further states that damages may be remitted (i.e., not enforced) under the following conditions:
The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; …
This would require the infringer to prove in court that he or she reasonably thought the use in question fell under fair use, however, and would not necessarily prevent the filing of a lawsuit or subsequent attorney and court fees.
Willful copyright infringement for commercial advantage or private financial gain carries criminal penalties.
It’s difficult to come by specific guidelines on the amount of a copyrighted work that can be used without permission by individuals. As the U.S. Copyright Office notes in its factsheet, “Fair Use,” “There is no specific number of words, lines, or notes that may safely be taken without permission.”
However, in Reproduction of Copyrighted Works by Educators and Librarians (Circular 21), the U.S. Copyright Office provides some guidelines and definitions on the amount of a work teachers can copy without permission under fair use. (See the section titled “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions With Respect to Books and Periodicals.”)
Keep in mind these guidelines are aimed at educators and librarians, but they may provide a good rule of thumb for others using copyright materials. Keep in mind, too, that the guidelines are not law. They have, however, generally been agreed upon by the U.S. educational community and the publishing industry.
It’s recommended that you get permission to use a copyrighted work when
- You’re unsure of or can’t determine the copyright status of a work
- You know in fact the copyright status of the work and using it would be considered an infringement
- You’ve done the “four factor” fair use analysis of your use of the work, and you can’t determine whether your use is a fair one
- You’ve done the “four factor” analysis, and you know that your use is not a fair one
- You’re unsure of how much of the original work you can reuse in your own work