Copyright Basics

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What is copyright?

By law, individuals are given the exclusive right to control reproduction and use of their “intellectual property”— creative expression that is fixed in tangible form, such as literary, dramatic, photographic, musical, graphic, audiovisual, or electronic works. This includes material posted on the Internet. Unpublished works such as letters or diaries may also be protected even though they do not display the copyright notice.

Only the copyright owner has the exclusive right to reproduce, distribute, perform, or display his or her creative work or to prepare a derivative work from the original work. Sometimes the creator of the work may assign these rights to a publisher or other organization to administer.

Some things not protected by copyright are titles, ideas, works that have not been put into a tangible form of expression, or common fact or information having no original authorship.

What is the term of copyright?

Within the last several years, the term of copyright protection has increased for the benefit of creators and their heirs, thus reducing the likelihood of works being in the public domain. Therefore, it is better to seek permission than to make assumptions. Electronic rights have also expanded the realm of interpretation and therefore litigation. Suffice it to say that digitized works on the Internet are also protected by copyright law. The following guidelines will provide basic but limited information for determining the copyright status of a work.

  • Works published before 1923 are in the public domain.
  • Works published after 1923 and before 1978 may be protected for 95 years.
  • Works published in 1978 or later may be protected for the life of the author plus 70 years. If the work is of corporate authorship (“works made for hire”), the employer owns the copyright and copyright lasts for 95 years from the date of publication, or if unpublished, 120 years from creation, whichever expires first.
  • Any work published after March 1, 1989, does not require a copyright notice. Therefore, beware that even though a work does not have a copyright notice (© or the word copyright), it will likely be protected by copyright until 70 years after the death of the author.
  • Unpublished works have copyright protection as well. The minimum term of copyright is the life of the author plus 70 years.

What is “public domain”?

Once copyright has expired, the work passes into the public domain, which means that the work is available for reproduction and adaptation without the creator’s permission.

What is “fair use”?

The copyright law sets out four criteria for determining whether a particular use is “fair,” meaning that under limited circumstances, a work that meets these four criteria may be used without permission. However, because the distinction between fair use and infringement may be unclear, the safest course is to get permission before using the copyrighted material.

  1. What is the purpose and character of the use? (It must be used for educational and nonprofit purposes.)
  2. What is the nature of the copyrighted work? (Facts and data are generally freely reproduced.)
  3. What is the amount of the portion used in relation to the copyrighted work as a whole (The amount of material must be small in proportion to the whole work, i.e., a paragraph from a book.)
  4. What is the effect of the use upon the potential market for or value of the copyrighted work? (The use will not diminish the potential market or value of the work for the creator.)

“Fair use” also means that a particular work may be reproduced without permission for purposes such as “criticism, comment, news reporting, teaching, scholarship, and research.”