Copyright and Fair Use Information

The information on this page is intended as an introduction to and overview of common copyright concerns from the perspective of using materials for research and teaching. If you have questions about your rights as a copyright holder, or if you have questions about a specific situation and don’t find the information you need on this page, contact Scholarly Communications staff at [email protected].

When using materials for teaching and research that you do not directly create yourself, you must always consider copyright compliance. Your most common options will be to:

1. Select resources that are in the public domain or available under open licenses.
2. Conduct a good faith assessment of your intended use of copyrighted resources to claim fair use or another exception to copyright.
3. Obtain permission from the copyright holder. 

Copyright

What is Copyright?

What is Copyright?

Copyright is the protection provided by the United States Constitution to original published and unpublished works.  

Copyright applies automatically to every creation at the time it is fixed in a tangible medium of expression. One can not copyright facts or “unfixed” ideas. For example, a lecture or speech can not be copyrighted as it is delivered. Once it is written down, taped, or otherwise “fixed” in a tangible medium, that version is covered by copyright. Under current copyright law, it is not necessary to register a work or place a copyright notice on the work for copyright to protect it. You should assume that most modern works are covered by copyright. The US Copyright Office offers more detailed information.

• the rights granted to the copyright holder are:
• the right to reproduce the work;
• the right to distribute the work;
• the right to make derivative works; and
• the right to publicly display or perform the work.

However, copyright law allows for the use of copyrighted material without asking for permission. Works may be outside the copyright period (in the public domain) or, if still under copyright, use may fall under the Fair Use provision or another exception. Use may be allowed under an Open License, such as a Creative Commons License.  

It is up to you to determine whether the work you wish to use is protected under copyright and whether your use is permitted without permission. If permission is required for your use, it is your responsibility to secure permission. 

Public Domain and Duration of Copyright

Public Domain and Duration of Copyright

Public domain is the term used to describe works that are no longer under copyright protection. Copyright is granted for a limited time. Currently, most copyrights last for the life of the author plus 70 years. At the end of the copyright period, the work becomes available for general use.

As of 2027, works published before January 1, 1932, are in the public domain and not governed by copyright restrictions. If the work that you wish to use was published before then, it is in the public domain and you are free to use it.

However, if the publication date is later, there are several things to consider. Does your use fall under the Fair Use provision or another exception? What is the date of publication? Was the copyright renewed? (Stanford University maintains a Copyright Renewal Database) Do you know who owns the copyright? 

Exemptions and Limitations

Exemptions and Limitations

Use of materials protected by copyright is allowed in many instances. Copyright law allows fair use of materials, and exemptions for educational uses. Copyright holders may use Creative Commons licenses to grant broad license to use their copyrighted materials.

There are many other exceptions, exemptions, and limitations in copyright. A few interesting examples:

• Libraries are allowed to provide copiers and other reproduction equipment without being liable for users' copying. Commercial copy shops, by contrast, may be liable for any infringing copies made on their machines.
• Small businesses are allowed to have radios and TVs where customers can see and hear them - under certain conditions. If not for this exception, the TVs and radios might constitute unauthorized public performances!
• Music stores are allowed to play the music they're selling, in order to promote sales.

Copyright and Plagiarism

Copyright and Plagiarism

Issues of copyright and issues of plagiarism are separate and distinct, with different types of penalties.  

Violation of copyright is termed “infringement” and is a violation of federal law which could subject the infringing party to civil and/or criminal damages or penalties. Copyright violations are usually copying, distributing, performing, or making of a derivation of a work, without permission or an applicable exception to copyright law. Proper citation of a work will not protect you against an infringement action.

Plagiarism is a violation of community standards regarding assigning appropriate credit to creators. Use of a material that is allowable under Copyright law may still constitute plagiarism. Plagiarism is a violation of the UTC Honor Code and can result in severe punishments for students. 

Introduction to Fair Use

What is Fair Use?

What is Fair Use?

Fair use (17 U.S.C. §107) provides the flexibility for individuals to use copyrighted materials in certain ways without permission or payment at any point during the copyright term. Fair use allows you to quote a book to review it, or to publicly display a reproduction of an artwork to critique it.  

Each possible use of an existing work must be looked at in detail, and the law spells out several factors that determine whether a use is fair. No one factor is decisive, you always have to consider all of them and some additional questions. Even after considering all relevant issues, the result is usually an impression that a particular use is likely to be fair or not likely to be fair. There are rarely definitive answers outside of courts. If, after considering all the relevant issues, you find that your use is not likely to be a fair use, it is best to obtain permission to use from the copyright holder. 

Factors of Fair Use

Factors of Fair Use

1. Purpose and Character of the Use
   Purposes that favor fair use include education, scholarship, research, and news reporting, as well as criticism and commentary more generally. Non-profit purposes also favor fair use, especially when coupled with one of the other favored purposes. 
2. Nature of the Original Work
   Published or Unpublished: It is less likely to be fair to use elements of an unpublished work. Making someone else's work public when they chose not to is not very fair, even in the schoolyard sense. Nevertheless, it is possible for use of unpublished materials to be legally fair.
   Factual or Creative: Borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data. With some types of works, this factor is relatively easy to assess: a textbook is usually more factual than a novel. For other works, it can be quite confusing: is a documentary film "factual", or "creative" – or both? 
3. Amount and Substantiality of the Portion Used
   Amount: Use of a smaller amount of the source work is usually more in favor of fair use, and use of a larger amount usually more likely to weigh against fair use. However, the amount should be considered proportionally; a quote of 250 words from a 300-word poem might be less fair than a quote of 250 words from a many-thousand-word article. Because the other factors also all come into play, sometimes you can legitimately use almost all (or even all) of a source work and still be making a fair use. But less is always more likely to be fair.
   Substantiality: this element asks, fundamentally, whether you are using something from the "heart" of the work (less fair), or whether what you are borrowing is more peripheral (more fair). Substantiality can be easily understood in some contexts – the melodic "hook" is probably the "heart" of a song – however, in many contexts it can be much less clear. 
4. Effect of the Use on the Potential Market For or Value Of the Source Work 
   This factor asks users to predict the effect a proposed use will have on the market for the source material. Will the use in question substitute for a sale the source’s owner would otherwise make, either to the person making the proposed use or to others? Generally, where markets exist or are developing, courts tend to favor them. Nevertheless, it is possible for a use to be fair even when it causes market harm. 
5. The "Fifth Factor" - Transformative Use 
   Transformative use is a relatively new addition to fair use law, first raised in a Supreme Court decision Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). A derivative work is transformative if it uses a source work in completely new or unexpected ways. Importantly, a work may be transformative, and thus a fair use, even when all four of the statutory factors would traditionally weigh against fair use 
   Parody: Parody is one of the most clearly identified transformative uses, but any use of a source work that criticizes or comments on the source may be transformative in similar ways. Legal analysis about this kind of transformative use often engages with free speech issues.
   New Technologies: Courts have sometimes found copies made as part of the production of new technologies to be transformative uses. One very concrete example has to do with image search engines: search companies make copies of images to make them searchable and show those copies to people as part of the search results. Courts found that those thumbnail images were a transformative use because the copies were being made for the transformative purpose of search indexing, rather than simple viewing.
   Other Transformative Uses: Because transformative use is a relatively new part of copyright law, it is still developing. Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is ample room for argument and interpretation in transformative use. 

Fair Use Checklist

Fair Use Checklist

If you plan to make multiple copies of an item or use protected works for other purposes including publication or posting within UTC Learn, you should make fair use determination. A determination may not be quick and easy; even experts usually only make a "best guess" as to whether a use is fair or not. It can be difficult to apply basic ideas about fair use to specific situations. One way to develop your understanding of fair use is to discuss examples with others. Fair use is very context-dependent, so each user must assess fair use independently, for each use. 

The Fair Use Checklist is a tool to assist in making fair use determinations. Complete the checklist for any item where you feel you need to determine and justify fair use. Make a copy for your records to document your decision-making process and good faith effort to apply the factors of fair use. 

Other Exemptions

Classroom Use

Classroom Use

Copyright law places high value on educational uses. The Classroom Use Exemption (17 U.S.C. §110(1)) only applies in very limited situations, but where it does apply, it gives pretty clear rights.

To qualify for this exemption, you must be in a classroom ("or similar place devoted to instruction"), in person, engaged in face-to-face teaching activities, and at a nonprofit educational institution. If and only if you meet these conditions, the exemption gives both instructors and students broad rights to perform or display works. Instructors can play movies and music or show images and original artworks. Students can perform arias, read poems, and act out scenes. Students and instructors can do all these things without seeking permission, without giving anyone payment, and without having to deal with the complications of fair use.

The Classroom Use Exemption does not apply outside the nonprofit, in-person, classroom teaching environment. It does not apply online, even to wholly course-related activities, synchronous environments, and course websites. The Classroom Use Exemption also only authorizes performance or display. It does not apply to making or distributing copies. 

DMCA and TEACH Act

DMCA and TEACH Act

Digital materials have always been protected under traditional copyright. The Digital Millennium Copyright Act (DMCA) of 1998 expanded the scope of copyright law to protect these digital materials. Title 17 of the U.S. Code was modified to reflect the growing concern of infringement of these items. Circumvention of measures to prevent infringement (such as encryption) was made illegal. 

The TEACH Act of 2002 added provisions for digital material transmitted via distance education. The TEACH Act expands the scope of educators’ rights to perform and display works and to make the copies available for digital distance education, however audiovisual works and dramatic musical works may only be shown in limited portions (as clips).

Teaching with Media

Teaching with Media

Most of the time, playing media to students in class, or performing things with or for students in a face-to-face class at UTC is allowed through the Classroom Use Exemption.  

When you want to use video and audio in an online course, there is less clear guidance regarding copyright. The Classroom Use Exemption doesn’t apply to online courses. If you are using video or audio that is not provided through a library license or database, you should make a fair use determination. 

Streaming media provided through the UTC library is often licensed to be used in instructional settings including rights to use in online courses. Visit the Public Performance Rights page or check with the library to explore whether rights have been paid for or if there are alternatives to paying a fee.

Licenses and Terms of Service 

Licenses and Terms of Service 

Much of the digital media we use today is available under license or contract.  

Subscription services like Netflix, Hulu, or Amazon Prime, websites like YouTube, and purchased media files have Terms of Service. Almost all Terms of Service limit use to personal and/or non-commercial use. It is unclear whether the terms of service on a free site, where you never clicked "I Agree", are legally enforceable; but with subscription services or digital media purchases, you usually did actively agree to the terms of service at some point.

It's important to note that limitations that you agreed to in a service contract or at the time you purchased digital content are not copyright issues. They are contract issues, and so present risks related to your contractual relationship with the provider of the content, such as account termination.

Is your teaching a personal use? No one really knows. Is your teaching non-commercial use? Also unclear. These services have not directly addressed such issues. Certainly, it is common practice to play public online content, such as YouTube videos, in many different public settings. 

Permissions and Licenses

Creative Commons Licenses

Creative Commons Licenses

Creative Commons Licenses are a tool that creators can use to define permitted uses of their works. Creative Commons licenses work together with copyright to grant broad rights to all users.

Creative Commons licenses allow authors and users to be certain that the intended use is permitted. For example, if you want to include images as background for a presentation, Creative Commons CC-BY or CC-BY-NC licenses allow this use, which is not covered under Fair Use or Classroom Use exceptions.

Other open licenses are available to grant broad use rights, such as the GNU General Public License, widely used in software. 

Obtaining Copyright Permissions

Obtaining Copyright Permissions

If you wish to seek permission to use copyrighted materials, you must identify and locate the copyright holder. The process may require considerable time and patience. However, getting permission is not always difficult, and may have minimal cost depending on how you wish to use the material. Sometimes a phone call is appropriate, although it is always wise to document permissions in writing. The University of Texas has a comprehensive guide to finding copyright owners and obtaining permissions.

Identify the Rights Holder

The most direct way to identify the rights holder is to examine the work for a copyright notice, place and date of publication, author and publisher. If the work is a sound recording, examine the disk, cartridge, or cassette, or the container.

The author is not always the rights holder. Rights may have been assigned to a publisher or be held by an estate. Different rights may have been assigned to different parties. The first publication, second edition, film or television rights might all be held separately.

For more guidance, see “How to Investigate the Copyright Status of a Work” from the US Copyright office, and the University of Texas guide for finding owners.

Ask for Permission

If the work is part of a book or a journal article, check the Copyright Clearance Center (CCC) first. The CCC offers transactional (case-by-case) permission services. Public Performance Rights for motion pictures may be available through a distributor.

If neither of these cases apply, you can proceed with contacting the rightsholder directly. Send a letter or email and be sure to include:

• Full identification of the item or excerpt that you wish to use
• The specific rights you would like (i.e. to do what with the content)
• The set amount of time you would like the rights for
• Whether you want exclusive or non-exclusive rights (typically non-exclusive)
• Identify the geographic area where you will use the work
• Ask what conditions you need to meet for the use (be prepared that the owner might ask you to pay)
• If your use is electronic, it is wise to include information on how it will be accessed (under password protection, limited to students in a course, limited to campus, open web access, etc.) 

For more guidance, review US Copyright Office M10, “How to Obtain Permission,” or Getting Permission from the University of Texas.

Proceeding without Current Contact Information

In some cases, such as if a publisher is out of business or the author is deceased, the copyright holder cannot be located, despite reasonable efforts. The US Copyright Office has recognized this problem, calling such works “orphan works.” Work is underway to create an exemption that would encourage use of orphan works by mitigating the liability risk.

At the present time, however, individuals must make decisions concerning their use of such works, including evaluating the risk of liability. Those who proceed with their use should document and preserve their efforts to locate the copyright holder.

Fair Use in Lieu of Permission

Previous payment of a fee or even outright denial of permission does not preclude you from exercising your rights under the Copyright Act. You can still employ an appropriate provision and there is no presumption against you for having asked permission. 

No Response to Permission Request

Lack of response is not a passive grant of permission to use. If your proposed use exceeds all provisions of the law, including fair use, you probably need to direct your students to a link to the work, find another work to use, or modify your proposed use to fit within fair use. 

 

Policies and Principles

Policies and Principles

• University of Tennessee Board of Trustees Statement of Policy on Patents, Copyrights and Other Intellectual Property  (BT0011)
• Copyright Information from University of Tennessee Division of General Counsel

This web site presents information about copyright law. UTC Library makes every effort to assure the accuracy of this information but does not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.

Material on this page was adapted from the University of Minnesota Copyright Services website under a Creative Commons Attribution-NonCommercial License. Additional material was adapted from The University of Tennessee at Knoxville Scholars’ page and the Clemson Libraries Copyright guide.