A Quick Refresher on Copyright

What is Copyright?

The term "copyright" quite literally means "the right to copy." It is intended to protect the intellectual property of creators  for a specific period of time, so that they can earn money from their work and determine how their work is used. In this digital age, when making a copy takes just a click of a mouse or a tap of a finger, it is more important than ever to understand the restrictions and permissions of copyrighted work, including fair use, the public domain, and Creative Commons. 

Almost all intellectual property is protected by copyright.
The work must meet a minimum of creativity and be "fixed" in a tangible form. (In other words, in order for it to be protected by copyright, you need to be able to copy it.  A hummed melody isn't copyrighted, but a recording of that hummed melody would be.)

Processes, facts, and ideas are not subject to copyright.
A set of instructions (such as a recipe), proven facts (2+2=4), and ideas in an intangible form cannot be copyrighted. For more information and specifics, see the following document: https://www.copyright.gov/circs/circ33.pdf 

Copyright is automatic.
A work does not need to have a copyright symbol (©) or announce that it is copyrighted to be eligible for copyright protections. A work does not need to published either, as long as it exists in a tangible form. However, it can be easier to defend your copyright and for others who wish to get permission to use your work, if you register it with the United States Copyright  Office. (https://www.copyright.gov/registration/ )

Copyright lasts a LONG time. 
Generally, the length of protection falls into two categories: life of the author or works made for hire.

Life of the Author: Works are protected for the rest of the author's life, PLUS seventy years. If an author created a work in 1980, then died 40 years later in 2020, the work would enter the public domain and lose copyright protections in 2090.

Works Made for Hire: This applies to works created for an employer, including corporations and educational institutions.  In these cases, the work is protected for 95 years from publication or 120 years from the creation of the work (whichever is less).  

Important note: Copyright rules change as the laws governing them change. Copyrights for works created prior to 1978 are different and extremely complex. This slider from the Copyright Advisory Network can help illustrate and clarify: https://librarycopyright.net/resources/digitalslider/index.html  (requires Flash).

Once a copyright expires, the work enters the public domain.
As a public domain work it can be used freely for any purpose. Works that are not subject to copyright exist in the public domain from the moment they are created. These include: publications from the US government (and some states, but not all, be sure to check), facts, ideas, and processes. 

In general, assume a work is copyrighted and seek the appropriate permissions.

What is the Public Domain?

The public domain consists of works that for a variety of reasons, do not have a copyright. This means that anyone can use them, for any purpose, freely, and without having to seek permission from a rights holder.

What works are in the Public Domain?

• Works published before 1929 (as of Jan 1st, 2025). The 1998 Copyright Term Extension Act gave works published from 1923 through 1977 a 95-year term, partially due to the heavy lobbying of the Walt Disney Company and George Gershwin's estate. Every year new works enter the public domain. Public Domain Day is January 1st!

• Works published between 1924 and 1977 without a copyright notice. This includes a surprising number of films now considered classics! You can find a collection of them here: http://publicdomainmovies.net/

• Works created by the federal government (and some states). This pertains to works created by government employees as part of their duties. NASA's catalog of space images are all in the public domain! There are some exceptions, see this guide from Harvard Libraries to learn more.

• Works whose creators have expressly waived their rights and released into the public domain. This is growing more and more common and is the basis of some OER content. 

• Works that cannot be protected by copyright. Some things are not protected by copyright. For example, copyright does not protect factual information or data, titles, short word combinations, names, characters, slogans, themes, plots, or ideas. These may be used or copied without permission or payment of royalties (unless they happen to be protected under trademark law).  

What is Fair Use?

Fair use is a legal doctrine that promotes freedom of expression by allowing the unlicensed use of copyright-protected works in certain circumstances. 

There are no set rules to what is and is not fair use.
Only a judge in a court can definitively determine if a use is "fair" or not. However, Section 107 of the Copyright Act lays out a four-factor test you can apply to each individual instance of use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. This does not mean that all nonprofit education uses are considered "fair." They still must be balanced against the other factors of the use. Additionally, transformative uses of a work (such as a song remix or an art collage) are more likely to be considered fair use, as they add something new to the existing work.

2. Nature of the copyrighted work. On the grounds of protecting the economic value of creative expression, use of a creative work such as a novel or song, is less likely to be considered fair use than a less creative work, such as a non-fiction text. Use of unpublished work is generally not considered fair.

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole. Courts will consider the both the quantity and quality of the portion of the work used. Using a large percentage of a work will generally not be considered fair use. A good rule of thumb is to use less than 10% of the whole. (For example, one chapter of a ten chapter book.)

4. Effect of the use upon the potential market for or value of the copyrighted work. The question here, is if the use harms the existing or future market for the copyright holder's work. Will your use of the work replace others purchasing the original?

See this checklist from MCCCD for a guide on determining if your use is fair.

Remember to consider all four factors when determining if your intended use of a work is fair use.