Trexler Library | Muhlenberg College

Copyright and Fair Use (Primarily for Students)

Refer to The Copyright Handbook: How to Protect & Use Written Works by Attorney Stephen Fishman for clear explanations concerning recent developments in copyright law. What is copyright? Federal law (U.S. Code Title 17, and U.S. Treaties) protects authors and creators of original works. These works can be in literary, dramatic, musical, or artistic form, and certain materials may be in electronic formats. A work does not need to be published or performed to be copyrighted. This protects the intellectual integrity of copyright holders and ensures their compensation for reproduction and transmission of copyrighted works. Copyright protection begins when a work is in a fixed form in a tangible medium, immediately becoming the property of its creator. The law protects the expression of ideas and facts, not the ideas and facts themselves. In the USA, no registration or notice is required for works to be protected under the copyright law. Normally, however, a copyright is registered, and the copyright notice (©) prevents "innocent offenders" from claiming ignorance of a work's protected status. How long does copyright last? Duration of copyright depends upon the date of a work's creation in fixed form in a tangible medium.

If it was created after January 1, 1978, copyright lasts the lifetime of the author or creator, plus 70 years.
If it was published between 1964 and 1977, copyright lasts 28 years, with an automatic extension of 67 years.
If it was published from 1923 to 1963, copyright lasts 20 years with a possible renewal. Thus some, but not all, works published in this period are in the "public domain" (not protected by copyright) in their original form, but a reproduction may be under copyright (for example, a videotape of a 1931 movie).
All works published before 1923 are in the public domain in their original form. (For example, Verdi's "Aida" is in the public domain, but a sound recording made in 1981 is under copyright.)

What is not protected under copyright? Several varieties of material are not included under copyright protection. For example:

Improvisational speeches or performances that have not been written or recorded.
Titles, names, short phrases, common slogans, lists of ingredients or contents.
Ideas, concepts, principles, procedures, methods, or discoveries that are not in a tangible form of description, explanation, or illustration. (Procedures, some discoveries, and devices, however, may be protected by patent law.)
Works containing information that is common property with no original authorship. Calendars, height and weight charts, tapes, rulers, etc. (The images on a wall calendar, however, may be copyrighted.)
Almost all U.S. Government documents.

What is "Fair Use?" Federal law provides for "fair use" of copyrighted works for teaching, scholarship, and research. No one has ever formulated a completely clear definition of "fair use," however, and the U.S. Code, Title 17, does not describe one. The law provides four key criteria for determining use:

The purpose and character of the use.
The nature of the copyrighted work in question.
The amount and substantiality of the portion used.
The effect of the use upon a potential market.

Purpose and character allow teaching, scholarship, and research, as well as criticism, comments, and news reporting, to fall under "fair use." The nature of the copyright work means that:

Materials designed for teaching (for example, textbooks) are less likely to fall under "fair use" than general works (for example, popular magazines).
Creative, original, or fiction works are less likely to fall under "fair use" than factual works.
Works designed for entertainment are less likely to fall under "fair use" than those of "diligence or compilation" (a catalog, directory, or index).

The amount and substantiality is that portion (measured by both quantity and quality) that is reproduced; if an entire work is reproduced; "fair use" cannot be claimed. The effect of the use upon a potential market asks: If others were to do the same thing, would it damage a copyright holder's financial interests? The Register of Copyright gave some guidance about "fair use" in a 1961 report:

"quotation of excerpts . . . illustrate a lesson" (Kelly 2).

How do I find out the copyright status of a work?

See this work: The public domain : how to find and use copyright-free writings, music, art, and more by attorney Stephen Fishman.
Examine the title page (both sides) for such information as copyright notice, place and date of publication, author and publisher, etc.
Examine the case, disc, cartridge, cassette, sleeve, cover, or container for a copyright notice.
Search the Copyright Office's records.
Ask the Copyright Office to make a search for you.

Follow these links to investigate whether a work has a copyright or to learn more about copyright:

Williams College's Copyright Basics for Students
The Harry Ransom Center sponsors the University of Reading's and University of Texas's WATCH