by Dr. Kenneth D. Crews
Copyright law applies to nearly all creative and intellectual works
For a work to be protected by copyright law, it must be an idea that has been expressed and fixed in some sort of medium. The expression has to be original. To be considered original, there must be a “medocum of creativity” in how it has been expressed. In other words, once you create an original work, and fix it on paper, in clay, or on the drive of your computer so that the work can be reproduced in some format, then the work is considered copyrightable. Therefore, copyright law protects a wide and diverse array of materials. Books, journals, photographs, works of visual art and sculpture, music, sound recordings, computer programs, websites, film, architectural drawings, choreography and many other materials are within the reach of copyright law. If you can see it, read it, hear it, or watch it, it likely is captured by copyright.
Works are protected automatically, without copyright notice or registration
Copyright protectable works receive instant and automatic copyright protection at the time that they are created. U.S. law today does not require placing a notice of copyright on the work or registering the work with the U.S. Copyright Office. The law provides some important benefits if you do use the notice or register the work, but you are the copyright owner even without these formalities.
Owners hold specific rights but not all rights
The law grants to copyright owners a series or bundle of specified rights:
In addition, certain works of visual art have moral rights regarding the name of the artist on the work, or preventing the destruction of them. Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works.
Author is the first copyright owner
As a general rule, the initial owner of the copyright is the person who does the creative work. If you wrote the book or took the photograph, you are the copyright owner.
Exceptions to the rule: creating a work on someone’s behalf
If you created the work as an employee, acting within the scope of your employment, then the copyright owner is your employer. In addition, if you are a freelancer, and where your contract specifies that you have created a work as a “work made for hire,” then the first owner of the copyright is the person that contracted you to create it.
Copyright can be transferred
Copyright owners can give or sell their rights to others. Even in cases of employment or where a copyright protected work was created as a “work made for hire” copyright can be assigned or transferred back to the author. In addition, rights can be transferred temporarily by contract. These contracts are often called licensing agreements. A recipient of right by way of licensing agreement only has the ability to exercise those rights that are specified directly in the agreement. At the end of the life of the licensing agreement, those rights revert back to the copyright owner.
Copyright and publishing agreements
In an academic setting, we are frequently asked to transfer copyright in our books and articles to publishers. It is not a requirement of publication that rights be assigned or transferred permanently to a publisher. The right to publish can be licensed to the publisher temporarily or on a non-exclusive basis. The ability to transfer or retain our copyrights is an opportunity to be good stewards of our intellectual works and maintain our intellectual legacy.
The basic term of protection for works created today is for the life of the author, plus seventy years. In the case of "works made for hire," copyright lasts for the lesser of either 95 years from publication or 120 years from creation of the work. The duration rules for works created before 1978 are altogether different. Also, foreign works often receive distinctive treatment. Not only is the duration of copyright long but the rules are fantastically complicated. Below you will find links to a number of resources to assist in guiding you through a copyright duration question.
Copyright owners may allow public non-exclusive uses
A copyright owner may grant rights to the public to use a protected work. That grant could be a simple statement on the work explaining the allowed uses, or it may be a selection of a Creative Commons license. Similarly, the movement to make works "open access" or "open source" is a choice by the owner of rights to make works available to the public.
The public domain
Some works lack copyright protection, and they are freely available for use without the limits and conditions of copyright law. Copyright eventually expires too. When a work lacks copyright protection or where copyright has expired, it is said that the work enters the "public domain." Works produced by the U.S. government are not copyrightable. Copyright also does not protect facts, ideas, discoveries, and methods.
Activities within fair use are not infringements
Fair use is not an infringement of copyright. It allows, under certain conditions, a person to use copyright protected material without permission. Fair use is an important right to use copyrighted works at the university. Fair use can allow us to clip, quote, scan, share, and make many other common uses of protected works. But not everything is within fair use.
Fair use depends on a reasoned and balanced application of four factors:
A more in-depth discussion of fair use may be found here.
Fair use is one of many statutory rights to use copyrighted works
Fair use is encoded in the U.S. Copyright Act, which also includes many other provisions allowing uses of works in the classroom, in libraries, and for many other purposes. These statutes, however, are highly detailed, and the right to use works is usually subject to many conditions and limitations.
Uses are also allowed with permission
If your use of a copyrighted work is not within one of the statutory exceptions, you may need to secure permission from the copyright owner. A non-exclusive permission does not need to be in writing, but obtaining a signed permission in writing is a good practice. The permission may come directly from the copyright owner, or through its representative agent or copyright agency.
U.S. copyright law applies to domestic and foreign works
In general, the same principles of copyright under the domestic law of the U.S. (or of another country) apply to a work, whether the work originated in the U.S. or elsewhere. Under major multinational treaties, many countries have agreed to give copyright protection to works from most other countries of the world. Because the U.S. has joined such treaties, you should apply U.S. copyright law to most works, regardless of their country of origin. For a more in-depth discussion of copyright and foreign works, you can refer to Special Cases.