About Copyright and Fair Use

by Alain Dussert, Interim Director of Library Services

Date last modified: 5/4/2007

With the recent legal cases regarding sharing music files over peer-to-peer networking, copyright has gotten lots of attention from the mainstream media. But copyright law can be difficult to understand. It can also be hard to distinguish copyright and "Fair Use" fact from fiction. Below, then, are some fundamental elements of copyright law, Fair Use, basic rules to be aware of and follow, and a set of copyright and Fair Use questions. But we strongly urge you to stay current of legal developments and investigate the nuances of copyright law for yourself. In addition, be aware that this guide is for your general information. It does not reflect or indicate Fielding Graduate University's copyright policy.

Copyright Law

The copyright law of the United States can be found in the United States Code Title 17 (in PDF format). Title 17 includes both the fundamental copyright laws, given immediately below, and all amendments since 1976, such as the Digital Millennium Copyright Act, which will be discussed in further detail below. Copyright law was created to protect authors of original works that can be literary, dramatic, musical, artistic, or other intellectual works. But they must be, at least somewhat, art or intellectual work. Those works not considered art or intellectual, such as a phonebook, are not protected under copyright law. In addition, copyright law is designed to protect expression, not ideas or facts, and to give protection to both published and unpublished works.

The Copyright Act, written in 1976 explains (in Section 106) that a creator has the EXCLUSIVE right to:

1. Reproduce their work

2. Modify their work - this includes having the exclusive right to create derivative works based upon the original.

3. Distribute their work

4. Perform their work in public

5. Display their work in public

Basically, a creator of any work is protected under copyright law immediately after their work is created. The basic rule for length of copyright protection is that works are protected for the life of their creator plus 70 additional years. Rules for a longer term may apply in particular instances (such as works for hire or anonymous works). But here are a few more rules to keep in mind:

6. If a work is created by an employee during the time they were employed, the employer owns the copyright. One exception to this rule, however, is when a faculty member of an academic institution writes a scholarly work. Even though the faculty member is an employee of the institution, they, not the institution, usually own the copyright to that work.

7. If the creator has sold and/or transferred the entire copyright, the purchasing business or owner becomes the copyright owner. For example, if a faculty member wrote an article and decides to surrender, with or without receiving payment, the copyright of that article to the publisher of a journal, that publisher will then own the copyright (for another example, see #9 in the Questions and Answers, below).

8. When it comes to dissertations, the creator owns the copyright. In other words, even if students wrote dissertations while studying at Fielding Graduate University, they own the copyright, NOT Fielding Graduate University.

Basically, if one directly violates any of the rules above, they can be held liable for direct copyright infringement. But there is also contributory copyright infringement, when liability may be imposed on someone who "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." There is also vicarious copyright infringement, when someone may be held liable for vicarious copyright infringement if he or she "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities," and allowed them to happen.

Not to further scare you, but there have been 2 additional amendments to copyright law in recent years that should be noted:

1. The "No Electronic Theft" Act - Criminal copyright infringement basics where distribution can be either electronic or in print:

Keep in mind that these are only the basics of the "No Electronic Theft" Act. For further details and a summary of the criminal copyright and trademark laws please see the Intellectual Property Legal Resources web page maintained by the United States Department of Justice.

2. The Digital Millennium Copyright Act of 1998 (mentioned above) - Basic important additional copyright rules aimed at the online world:

For further discussion and a summary of the Digital Millennium Copyright Act of 1998, see the US Copyright Office Summary. To see the full text of the Digital Millennium Copyright Act of 1998, click here. The full text is hosted by the THOMAS databases that are hosted by The Library of Congress.

Fair Use

"Fair Use" is discussed under United States Code 17, Section 107. There is a four-factor analysis in Section 107 that determines whether or not an action is "Fair Use":

1. Purpose and character of the use

2. Nature of the copyrighted work

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. Effect of the use upon the potential market for or value of the copyrighted work

 

So What Is Fair Use?

Here are some classic examples:

1. Criticism and comment. This would include quoting or excerpting a work in a review or criticism, in order to illustrate a point or comment about it.

2. News reporting, such as summarizing a book or article, with brief quotations, in a news report.

3. Research and scholarship. This would include quoting a short passage in a scholarly, scientific, or technical work in order to illustrate or clarify the author's view(s).

4. Nonprofit educational uses, such as teachers photocopying limited portions of written works for their classroom use.

5. Parody. This would be something that ridicules another, usually well-known, work by imitating it in a comic way.

 

5 Basic Rules to Keep in Mind When Deciding If Something Is "Fair Use"

(taken from When Copying Is Okay: The "Fair Use" Rule in NOLO, and the Copyright Site)

Rule 1: Are You Just Copying or Creating Something New? The purpose and character of your intended use of the material involved is the single most important factor in determining a "fair use." The question to ask is whether you are merely copying someone else's work verbatim or instead using it to help create something new. The Supreme Court calls such a new work "transformative." The more transformative your work, the more likely your use is a fair use.

For an example, see #5 in the Questions and Answers, below.

Rule 2: Don't Compete With the Source You're Copying From. Without consent, you ordinarily cannot use another person's protected expression in a way that impairs (or even potentially impairs) the market for his or her work. Thus, if you want to use an author's protected expression in a work of your own, that is similar to the prior work and aimed at the same market, your intended use isn't likely a fair use. For example, say Nick, a golf pro, writes a book on how to play golf. Not a good putter himself, he copies several brilliant paragraphs on putting from a book by Lee Trevino, one of the greatest putters in golf history. Because Nick intends his book to compete with and hopefully supplant Trevino's, this use could not be a fair use. In effect, Nick is trying to use Trevino's protected expression to eat into the sales of Trevino's own book.

Another example is when teachers copy parts of works for students to use in course packs. In 1996, a group of publishers sued a small photocopying establishment in Michigan (MDS) for creating course packs because they felt that the course packs were competing with the sales of original works in the packs, thus infringing on the copyright holders' ability to profit from their work (Princeton University Press, et al. v. Michigan Document Services, 1996). The publishers also claimed that MDS was infringing on copyright holders' rights because they were neither a) asking for permissions nor b) seeking a license to use the work. The courts found that MDS was infringing and forced them to pay damages.

Rule 3: Giving the Author Credit Doesn't Let You Off the Hook. Some people mistakenly believe that they can use any material as long as they properly give the author credit. Not true. Giving credit and fair use are completely separate concepts. Either you have the right to use another author's material under the fair use rule or you don't. The fact that you attribute the material to the other author doesn't change that.

Rule 4: The More You Take, the Less Fair Your Use Is Likely to Be. The more material you take, the less likely it is that your use will be a fair use. However, to preserve the free flow of information, authors have more leeway in using material from factual works (scholarly, technical, scientific works, etc.) than works of fancy such as novels, poems and plays. This is true especially where it's necessary to use extensive quotations to ensure the accuracy of the information conveyed. As a general rule, never quote more than a few successive paragraphs from a book or article, or take more than one chart or diagram. It is never proper to include an illustration or other artwork in a book or newsletter without the artist's permission. Don't quote more than one or two lines from a poem. Many publishers require their authors to obtain permission from an author to quote more then a specified number of words, ranging from about 100 to 1000. Contrary to what many people believe, there is no absolute word limit on fair use. For example, it is not always okay to take one paragraph or less than 200 words. Copying 12 words from a 14-word haiku poem wouldn't be fair use. Nor would copying 200 words from a work of 300 words likely qualify as a fair use. However, copying 2000 words from a work of 500,000 words might be fair. It all depends on the circumstances.

For Fielding Graduate University's definition of Fair Use, see the Copyright Clearance Procedure.

Rule 5: The Quality of the Material Used Is as Important as the Quantity. The more important the material is to the original work, the less likely your use of it will be considered a fair use. In one famous case, The Nation magazine obtained a copy of Gerald Ford's memoirs before their publication. In the magazine's article about the memoirs, only 300 words from Ford's 200,000-word manuscript were quoted verbatim. The Supreme Court ruled that this was not a fair use because the material quoted (dealing with the Nixon pardon) was the "heart of the book ...the most interesting and moving parts of the entire manuscript," and that pre-publication disclosure of this material would cut into value or sales of the book.

Determining whether your intended use of another author's protected work constitutes a fair use is usually not difficult. It's really just a matter of common sense. There is no more commonsensical definition of fair use than the golden rule: Take from someone else only what you wouldn't mind someone taking from you.

 

10 Common Questions and Answers about Copyright and Fair Use

 
Questions
Answers
1 I am a Fielding faculty member and want all my students in my seminar X, which I offer at each Session, to read article Y. Do I need to do anything besides photocopying that article and mailing/giving it to my students? See the Fielding Graduate University Copyright Clearance Procedure.

2

 I'm a student, and my instructor wants me to read this book that sells for $45, which I think is an outrageous price, especially given my financial situation! I know a library that has it and from which I can check it out, and a copy shop where I can photocopy the whole thing for $15. Since it's for learning purposes (even if I give the book copy to others in my seminar), that would be OK for me to do under "fair use", wouldn't it? Almost certainly not, because one of the considerations of fair use is "the effect of the use upon the potential market for ... the copyrighted work." If you copy the whole book instead of buying it, you have just negatively affected the potential market for it by removing yourself as a buyer. And, you are copying the entire book! Please see Rule 4 above! In addition, most copy shops would/should not copy an entire book for someone because they can be held liable.
3 I am a Fielding faculty member and want to distribute copies of an entire book, published in 1991, that is now out of print to 10 of my students. It has a copyright symbol, but since it is out of print, I think I should be able to this. Should I? Even though it's out of print, like all copyrighted works it still should be protected by copyright law for at least the life of the author plus 70 years (see Copyright Law above). Perhaps one thing to ask yourself is whether the book is nonfiction or fiction? Courts do tend to favor more nonfiction fair uses than fiction. But this is no guarantee for you. Also, contact the book's author, editor, or publisher and ask them if you can. Or ask legal counsel if possible. Regardless, try to err on the side of caution, and see Rule 4 above for information about quantity as a Fair Use factor.
4 I am a Fielding faculty member and I just found the most amazing journal article in a full-text online database Fielding subscribes to. I think that everyone in my program should have access to it because I think it will improve their studies. I have already downloaded it from the database that I found it in and now want to post it onto a FELIX forum. Isn't that fair use? Although your purpose is educational, it probably would not be wise to do that. One could argue "Fair Use" in courts but you circumvented the technological copy protection system that the database uses to keep unlicensed/unauthorized users from accessing it. In other words, you might be violating the Digital Millennium Copyright Act, section 1201, because even though FELIX forums are restricted to the Fielding community, the database's technological copy protection system was still circumvented. In addition, you are copying the entire article, which might not be a Fair Use. See Rule 4 above for more explanation on that subject.
5 I am a Fielding student currently writing my dissertation. I want to put an extensive quote from a recently printed article in one of my chapters. I feel that even though it's long, 4 pages, I want to include it so that I can comment on how I disagree with the author's hypothesis. Is this a fair use?
Yes it is because the purpose and character of the use is for scholarly criticism and comment in your own work, and thus transformative. Also see #1 in the So What is Fair Use? section above.
6 I am a Fielding student who finally found a book that I've been looking for. I want to copy only a couple of chapters from it for myself. Is this a fair use? This is a situation where you should consult the 4-factor Fair Use Analysis above, apply your use to it, and determine on your own whether your use passes the 4 factors. Also see the 5 Basic Rules to Keep in Mind When Deciding If Something Is "Fair Use" above.
7 I am a Fielding student who recently got access to an unpublished article. I would like to post only the most relevant sections of it on FELIX. That amount is only 1/4 of the entire article. Is that okay? Absolutely not. See Rule 5 above for explanation about the quality of material used being as important as the quantity. Not only that, but this could have a direct impact on future sales of the journal issue the article would appear in. In other words, the journal and author can claim this is not a fair use because it failed when applied to number 4 in the Fair Use analysis (see above). Now if the author had placed parts of his article on FELIX before it was published, then no copyright law or Fair Use rule was broken because authors have the exclusive right to distribute their own work in that situation.
8 I came upon a paper that identifies its author as Mr. X, but it only says "Written in 2001, Mr. X etc." on it -- does that mean the paper isn't copyrighted? No, in this case, because the work was written on or after March 1, 1989, the author has the copyright to his work automatically, without having to specifically mark it with any specific wording or symbols. Remember that a work has copyright protection immediately after it is created for the life of the author plus 70 years, even if there is no copyright symbol on it. There are, however, exceptions to works written before March 1, 1989, on a case by case basis when there is an omission of copyright notice. See Copyright Notice-Circular 3 (in PDF format, specifically page 5), published by the United States Copyright Office, for more information.
9
I have written an article that was published in a scholarly journal. When I submitted the article, I had to give the exclusive copyright to the journal publisher. Since I wrote the article, though, can I now still distribute personal copies of that article to others?

Since you surrendered the copyright, you probably have no more right to do anything with this article than with any other work, as far as the law is concerned. However, the publisher, as the copyright holder, may give you more leeway than it would to others. For example:

  • The APA's Publication Manual, 5th ed., p. 356: states, under "Copyright and Permission to Reproduce APA Material" that "APA requires no permission or fees when ... authors reproduce their own material for personal use (e.g., to prepare reprints) ..."
  • On p. 332, about copyright transfer of accepted manuscripts, it states: "The ... author ... transfers the copyright on the published article to APA ... APA owns the copyright on APA journal articles for 75 years from the time of publication. The copyright transfer to APA includes both print and electronic rights to the article. This permits APA to (a) more widely distribute the work, (b) control reuse by others ... APA permits authors to reuse their work in several ways, which are outlined on the Publication Rights form."

So it really depends on the publisher's policies. When you transfer copyright to another party, by the way, you may not necessarily need to transfer rights to all uses; for example, you could theoretically transfer the right to publish your work in printed form, but retain the right to publish it in electronic form.

10 I want to use several charts and graphs from a previous Fielding dissertation in my own dissertation. Can I get permission to do this from Fielding Graduate University? Fielding Graduate University cannot give you permission, but for alumni contact information, consult the Alumni Directory on the bottom of the Directories page in FELIX . Even though the dissertation might be physically located at Fielding, it does not own the copyright to it. So when in doubt, consult the author for permission.

 

Additional Resources