What is Copyright?
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.
“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.
How long is a work covered?
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 is 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)
What is 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.
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. 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 (links below.)
Copyright and Fair Use are wide reaching topics. Related information that you may find useful when building your course or asking students to become creators include Creative Commons and the Public Domain.
- Copyright & Fair Use Guidelines and Resources (Stanford Libraries)
- Cornell University Copyright Term Table [also available in PDF]
- Copyright Duration Flowchart
- 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]
- Teaching Tips: Copyright and Fair Use