Where History Continues to be Written

Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses:

• Criticism and comment:  For example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment. 
• News reporting:  For example, summarizing an address or article, with brief quotations, in a news report. 
• Research and scholarship:  For example, quoting a short passage in a scholarly, scientific or technical work for illustration or clarification of the author's observations. 
• Nonprofit educational uses:   For example, photocopying of limited portions of written works by teachers for classroom use.
• Parody:  A work that ridicules another, usually well-known, work by imitating it in a comic way.

In most other situations, copying is not legally a fair use. Without an author's permission, such a use violates the author's copyright.

Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact that a work is published primarily for private commercial gain weighs against a finding of fair use. For example, using the Bob Dylan line "You don't need a weatherman to know which way the wind blows" in a poem published in a small literary journal would probably be a fair use; using the same line in an advertisement for raincoats probably would not be.

A commercial motive doesn't always disqualify someone from claiming a fair use. A use that benefits the public can qualify as a fair use, even if it makes money for the user.

Copying From Unpublished Materials

When it comes to fair use, unpublished works are inherently different from published works. Publishing an author's unpublished work before he or she has authorized it infringes upon the author's right to decide when and whether the work will be made public. Some courts have held that fair use never applies to unpublished

As you might expect, publishers, authors' groups, biographers and historians were highly critical of this view. They got Congress to amend the fair use provision in the Copyright Act to make clear that the fact that a work is unpublished weighs against fair use, but is not determinative in and of itself. If the other fair use factors favor fair use, it can be permissible to use part of an unpublished work without permission. This is particularly likely where the use benefits the public by furthering the fundamental purpose of the copyright laws--the advancement of human knowledge. For example, a court held that it was a fair use for a biographer to use a modest amount of material from unpublished letters and journals by the author Richard Wright. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)

When Is a Use a 'Fair Use'?

There are five basic rules to keep in mind when deciding whether or not a particular use of an author's work is a fair use:

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 whether a use is a fair use. The question to ask here 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.

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.

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 to 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 words.

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.

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.

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.

Reproduction of copyrighted material, without prior permission of the copyright owner, particularly in an educational setting, is an issue of concern for the academic community. Unfortunately, the impropriety of much unauthorized copying is all too often overlooked by users in an educational setting.

Although copying all or part of a work without obtaining permission may appear to be an easy and convenient solution to an immediate problem, such unauthorized copying can frequently violate the rights of the author or publisher of the copyrighted work, and be directly contrary to the academic mission to teach respect for ideas and for the intellectual property that expresses those ideas.

Without understanding the copyright law, including elements such as the doctrine of "Fair Use" and its application and limitations in the educational setting, faculty members, copy centers, college stores, universities and colleges themselves, and others will be at risk for engaging in illegal photocopying.

These pages are intended to aid you in conforming to the requirements of U.S. copyright law by providing an easy-to-understand guide. This guide, in question and answer format, presents a current overview of relevant sections of the amended Copyright Act of 1976, including:

The requirements for protection of copyrighted works from unrestricted copying;

• The doctrine of "Fair Use" and its limitations; 
• The reasons for college stores to be indemnified against liability for copyright infringement, and the effects of such indemnities; 
• And procedures on how to obtain permission to reproduce copyrighted material.

It is the goal of these pages, cosponsored by the National Association of College Stores and the Association of American Publishers, and endorsed by the Association of American Publishers, and endorsed by the Association of American University Presses, to clarify the issues and present information and procedures that will result in greater understanding of the rules governing copyrighted works and facilitate the processing of photocopying requests.

1. What is a copyright?
The copyright law grants owners of copyright (authors and other creators and publishers) the sole right to do or allow others to do each of the following acts with regard to their copyrighted works: to reproduce all or part of the work; to distribute copies; to prepare new (derivative) versions based on the original work; and to perform and display the work publicly.

Copyright protection is available for "original works of authorship fixed in a tangible medium of expression." (see question 3.) U.S. copyright protection for works created on or after January 1, 1978, begins at creation and lasts until fifty years after the author's death.

Where the creator of a work is an employee or in certain cases where the work has been specially commissioned as an instructional text, as a test, as answer material for a test, or for other purposes, copyright protection lasts for 75 years from the date of first publication or 100 years from the date of creation of the work, whichever date expires first.
Works created prior to January 1, 1978, are also subject to copyright protection, although the duration of copyright may vary from the terms described above.

Copyright protection covers both published and unpublished works.

The fact that a previously published work is out of print does not affect its copyright.

2. How is a copyright obtained?
The Copyright Act of 1976 provides that copyright begins at the moment the work is created. Registration with the Copyright Office is not required in order for a work to be protected under U.S. copyright law. For works infringed prior to March 1, 1989, the copyright must generally be registered with the Copyright Office in Washington, D.C. before the copyright owner can sue an infringer. ( Once the work is registered, suit can be brought for infringements which occurred prior to registration.) For some (particularly foreign) works infringed after March 1, 1989, registration prior to suit is no longer required. In all cases, however, registration provides certain advantages, including the ability to qualify for an award of attorney's fees and substantial statutory damages.

3. What types of works can claim copyright protection?
As noted previously, copyright exists in "original works of authorship" which are "fixed in a tangible medium of expression." Among the types of works which are subject to copyright protection are literary, dramatic, musical, choreographic, and pictorial works, graphic works, pantomimes, sound recordings, sculptures, motion pictures and audio-visual works. These categories include reference works (including dictionaries), video cassettes, and computer programs and databases.
Copyright protection does not include facts, ideas, procedures, processes, systems, concepts, principles or discoveries, although these may be protectible under patent or trade secret laws.

However, the literary or other form of expression of these ideas and the like is covered by copyright.

4. How do I find out who owns the copyright for a particular work?
You should consult both the page containing the copyright notice as well as any acknowledgement pages in the work. If you have a photocopy or other reproduction that does not contain a notice of copyright or acknowledgement, you should consult an original copy of the work to determine if the original has the information you need.

Most works contain a notice of copyright. However, the information contained in such copyright notice may not always reflect accurately the identity of the current copyright owner of the material in question.

The absence of a copyright notice does not mean that the work in question may be freely copied.

The best method for determining copyright ownership is by contacting the publisher of the work that you wish to copy.

5. What are the penalties for copyright infringement?
Civil and criminal penalties may be imposed for copyright infringement. Civil remedies include an award of monetary damages (substantial statutory damages, which in cases of willfulness, my total up to $100,000 per work infringed, or actual damages, including the infringer's profits), an award of attorney's fees, injunctive relief against future infringement and the impounding and destruction of infringing copies and the plates or other articles used in making such copies.

6. What is "fair use"? How does it affect copyrighted material?
The doctrine of "Fair Use" under the U.S. copyright law in limited situations permits the use of a copyrighted work, including reproducing portions of that work, without the copyright owner's permission. Section 107 of the Copyright Act establishes four basic factors to be examined in determining whether a use constitutes a "fair use" under the copyright law. These factors are:

• The nature of the copyrighted work;
• The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and 
• The effect of the use in question upon the potential market for or value of the copyrighted work.

No one factor is determinative of a person's right to use a copyrighted work without permission. (Educational use alone is not sufficient to make a use in question a fair one.)

In the legislative history of the 1976 Copyright Act, Congress endorsed certain guidelines relating to classroom copying for educational use. These guidelines are generally considered to establish minimum permissible conduct under the Fair Use Doctrine for unauthorized copying. Although some limited copying which does not fall within these guidelines (and which is not expressly prohibited under Prohibitions A through F described below) may still qualify as permissible conduct under the copyright law, copying which does comply with these guidelines generally constitutes permissible conduct under the current copyright law.