Both in my writing projects and with the Educational Foundation’s Library, I have come across the importance of knowing about copyrights. We are still learning about copyrights in electronic media and books donated to the foundation.
What came as the biggest surprise was seeing books with no footnotes, no citations, and no acknowledgments of works borrowed from others. I have also been surprised at the licensing fees charged by publishers. And some self-publishing presses will not accept the “fair use” doctrine and have expressed concern about infringing copyrights.
This is an important topic for all members who publish anything for any audience. That is why I asked a copyright consultant to consider writing the short article that follows.
– George Schade, CMT
As professionals in today’s world, we may face instances daily where a basic knowledge of copyright law would serve us well. We may be writing an article for submission to a journal or a newsletter such as this, sharing a poem on our company blog, or authoring a book. In this, and subsequent articles, we attempt to lay out some of the most important aspects of copyright law that affect our use of the work of others.
We will define copyright, highlight some of the misapprehensions today’s writers have about using copyrighted materials and offer some guidance that will help you make more informed choices in using content created by others.
Definition of Copyright
Let’s begin with a clear definition of copyright. One simplistic statement about copyright that gets us on the right track and is easy to remember is this: Copyright is the right to copy. A more inclusive definition is this: Copyright is the set of exclusive rights granted to the creator of an original work that is fixed in a tangible form of expression. These exclusive rights granted to the creator include the right to:
- reproduce the copyrighted work,
- distribute copies of the work to the public,
- adapt (to prepare derivative works based on the work),
- display the copyrighted work publicly, and
- perform the copyrighted work publicly.
Note the words exclusive in the definition above. These five rights are given by U.S. copyright law only to the author or creator of a work. With a few special exceptions, each of the five rights of a copyrighted work can only be legally exercised by the creator or with the expressed permission of the creator.
What can be copyrighted?
Copyrighted works include original literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, movies and audio-visual works, sound recordings, and architectural works.
What cannot be copyrighted?
Copyright law does not protect facts, names, titles, and short phrases, blank forms, familiar symbols and designs, typeface, fonts, and lettering, ideas, systems, or methods of operation. It is important to remember that copyright law does not protect ideas, but it does protect the expression of ideas.
Copyright Infringement vs. Plagiarism
Many authors innocently commit infringement because they are unaware of the difference between infringement and plagiarism. There is an important distinction. Plagiarism is the use of someone else’s content without giving proper attribution. They mistakenly think that giving proper attribution relieves them of the responsibility of obtaining permission. Plagiarism is an ethical construct and can cause harm to the copier’s credibility or reputation.
Copyright infringement is a legal construct and can lead to the need for defending a use in a court of law. Copyright infringement is the use of content that is under legal copyright protection without first obtaining permission to do so.
By not giving credit for copied work and copying a copyrighted work without permission, it is possible to commit copyright infringement and plagiarism at the same time.
But you may ask, “How do I know if I need permission for copied excerpts in my work to ensure that I am not infringing copyright?” In analyzing your work to determine the need for copyright clearances or permissions, you first need to consider whether your use of content falls into one of two categories: fair use or use of public domain content.
Fair Use
“Fair use” is intended to foster the free flow of ideas. Unfortunately, fair use falls in a gray area of copyright law. It is determined in a court of law on a case-by-case basis. For example, an author may be free to copy limited portions of a copyrighted work for purposes such as criticism, classroom teaching, and news reporting. Limited quotations from a literary work in a review of that work may be acceptable. Copying a chapter from a textbook for a one-time lesson in a classroom setting or using limited copied content or a celebrity photo in a news article about a current newsworthy event may be considered fair use.
Unfortunately, the only place you will be able to obtain a definitive answer regarding whether your use is a fair use is in a court of law as you defend your use against a claim of copyright infringement.
Courts consider four factors in determining fair use. The factor most authors choose to use in arguing that their copying is a fair use is the amount copied. There is the general misapprehension that copyright law states a certain number of words as a safe determination that a use is fair. Copyright law offers no such guidance.
Traditional publishers or self-publishers may arbitrarily determine for their publication what they deem safe as a fair use claim. They may be willing to risk a use of 200 words from a lengthy novel or one line of poetry from a poem of a least thirty lines without permission, for example.
In the past decade or so, many publishers have been adopting increasingly stricter fair-use guidelines. For some, even a single line no longer qualifies as a standard for fair use in their publications. This may be due to the growing number of copyright infringement claims and the ease with which copied work can be discovered due to digitization. Writers may look to written policies set by their publishers to determine if the publisher has chosen to deem their writers’ claim of fair use based on a specific amount as a risk they are willing to take. Self-published authors must decide themselves when they wish to claim a fair use.
It is important to remember that the amount of the work used is only one factor courts use in determining fair use and that all four fair use factors must be considered. We will discuss these factors in detail in a subsequent article.
Public Domain
As we have stated, public domain is another consideration in determining if a use requires permission. If a work is in the public domain, its use does not require permission. Public domain is not a gray area of law like fair use. The factors that determine fair use are clearly defined in copyright law.
A work can fall into public domain in several ways, such as the waiving or expiration of rights, which we will discuss in more detail in a subsequent article.
Requesting Permission
If you have determined that a use requires permission and you choose to keep the use instead of removing the copied item, you will want to request permission. Often you will begin your search for the rights administrator by addressing the publisher of the work you are quoting. There are many avenues to pursue, and sometimes the search can be real detective work.
You may wish to do all the work yourself or you may wish to hire a permissions specialist. If you do decide to acquire permissions yourself, we suggest you become well-informed about the process and the legal aspects of using the works, of obtaining the proper permissions, and of the importance of following through with the requirements and limitations of the permissions agreement.
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Part 2 Preview: In the next installment of this series, we will cover the details of fair use. Later, we will cover the details of the public domain and other pertinent areas of copyright law.
