- What is Copyright and Copyright Term?
- What defines the Public Domain
- What constitutes Fair Use?
- What is Creative Commons?
What is Copyright and Copyright Term?
Unless otherwise stated, copyright automatically applies to any ‘original work of authorship’ as soon as it is captured in ‘fixed, tangible’ form. It doesn’t require affixing the Copyright (©) symbol, registering with the copyright office or any other action. When it’s made it is covered.
What’s Covered by Copyright?
“Works” include: books, articles, stories, poems, music, movies, photographs, illustrations, drawings, games, articles, video games, computer programs, architectural works, sculptures, recipes, knitting patterns… if it’s been recorded in some way that can be seen by others then it’s covered. Except…
What’s Not Covered?
A few works aren’t covered by copyright, including:
- titles, names, slogans, short phrases (some of these can be registered as Trademarks though… use common sense)
- works that haven’t been “fixed” (recorded, written down, etc)… such as the song you serenaded your would-be significant other with or your spoken rant about reality television
- ideas and facts (simply stated, common knowledge… again, common sense)
- public domain (we’ll talk about this later)
For How Long?
Copyright was originally effective for a flat 14 years, after which the work became a part of the public domain. Now, however, things are significantly more complicated, depending on a few different factors. To determine if a work is still protected by copyright (and unless it was published before 1923, it probably is!), you can use the very useful Digital Copyright Slider.
What defines the Public Domain
What happens when a work is no longer protected by copyright? It passes into (becomes part of) the “public domain,” the collection of copyright- (and lawyer-) free works, available to be reproduced, ripped, remixed, shared, sold and transformed by anyone who chooses to, without regulation or cost.
What’s in the Public Domain
You can use the Copyright Term tools shared earlier to determine if a work has passed into the public domain, but you can be certain that any work published before 1923 in the United States is already there! When purchasing textbooks you may have noticed that some classic literature titles are available in almost absurdly cheap editions– this is usually because those works are in the public domain. Similarly, those titles and many more are available free on the web through sites like Project Gutenberg or The Internet Public Library.
The Importance of the Public Domain
Historically, the public domain has been a fundamental part of cultural progress. Artists, authors and musicians build upon the work of others– sometimes subtly, sometimes with great abandon (as Picasso noted: “Good artists borrow… great artists steal!). Ironically, Disney has been a major force in continuing to extend copyright protection while they were, historically, ravenous consumers of public domain and built the business that they now use to lobby for copyright law that prevents anyone else from doing what they did.
- Free Culture (indispensable– and free!– book by Larry Lessig)
What constitutes Fair Use?
Fair Use is a set of guidelines (a “doctrine” if you care about such things) outlined within copyright law for people other than the copyright owners who want to use some or all of a copyrighted work. Fair Use is not a law– it is a set of guidelines used to build a defense should your use of a work be questioned.
The Four Factors of Fair Use
To qualify as Fair Use, your use of the copyrighted material should be in line with four basic guidelines known as the Four Factors:
1. The purpose and character of the use
purpose: are you using the copyrighted work for profit (whether as part of work you profit from or by selling directly) or for non-commercial purposes (school work, non-profit use)? If you are using the work for non-commercial purposes, this counts in your favor.
Character: are you transforming the work or replicating it? For instance, are you creating an original painting incorporating elements of an existing photograph or painting? Transforming the work to create something new (known as a “derivative”) counts in your favor.
2. The nature of the work being used
it counts more in your favor if the work you are using is a factual work: a nonfiction book, article, encyclopedia entry, etc. Than if it is a creative one: a story, poem, song, painting, etc.
3. The amount and substance of the work being used
The less you can use of a work to achieve your goal, the better. Using a snippet or quote is more likely to be considered fair use than using an entire work– or a significant proportion of it. Also, consider if you are copying “the heart” of the work… vanilla ice paid for infringing by copying a very short (1 second or so) bass line from a queen song because it was so recognizable and clearly the “heart” of the original song.
4. The effect of the use on real or potential market value
Does your use negatively effect real or potential sale of the original work or a work that the original is part of?
Is Your Use Fair?
Each of these factors represents a spectrum, not an absolute either/or. Imagine each as a scale of 1-10, giving 40 possible “points” for being fair use. In the first factor, if you are copying and reselling the work with little or no change, that might be 1 point. If you are sharing the work for non-profit reasons with other non-commercial users, that might be a 10. If you scored a total of 10, your use is probably not protected. If you score 30 or more, it probably is.
Sound complicated? It doesn’t have to be! Keep these things in mind:
- Fair use isn’t really complicated as much as the doctrine is purposefully vague… the intention being to allow a broad exercise of fair uses
- There are many uses that are well established as fair and don’t take much thought: quoting a few lines from a poem, quoting lines from articles, selected paragraphs from books, etc.
- There are tools to help if you’re not sure, particularly useful are the Fair Use Evaluator and the Fair Use Checklist
- There has essentially never been a meaningful judgment against an individual educator for copyright violations when attempting to fairly use materials in an educational context. It’s true!
Fair Use Resources
- Copyright & Fair Use Guidelines and Resources (Stanford Libraries)
- Fair Use of Copyrighted Materials (University of Texas)
- Code of Best Practices in Fair Use for Media Literacy Education [useful for ALL educators, particularly in understanding your rights vs the hype]
What is Creative Commons?
Creative Commons is an organization whose mission is to create and promote a range of easy-to-implement licenses that work alongside copyright. These licenses make very clear what is allowable and enable: creators to share their work in a reasonable way everyone to share and build upon those works It’s very simple to use a Creative Commons license on anything you create:
- Create something
- Use the simple “license chooser” form to select how you want to share
- Publish your work with a note about the license you’ve chosen (you can copy and paste it right from the site)
- Or, when you publish to a site like flickr, Facebook, photobucket, blogger, wordpress, etc… look in the settings for your account to see if there’s a one-click way to enable Creative Commons licensing for your work. In most cases there is!