Copyright and Fair Use Information

The information on this page is intended as an introduction to and overview of common copyright concerns. This page mainly covers the copyright from the perspective of using materials for research and teaching. For more information on your rights as a copyright holder, visit the Scholarly Communications page. If you have questions about a specific situation or don’t find the information you need on this page, please contact us.

When using materials for teaching and research that you do not directly create by 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

Introduction to 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Copyright is the protection provided by the United States Constitution to original published and unpublished works.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, video 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 detailed information on copyright. You may wish to register your work with the US Copyright Office in order to place your copyright in the public record. Information about this process can be found on the US Copyright Office website.

In the case of copyright, the rights granted to the copyright holder include:

  • the right to reproduce the work
  • the right to distribute the work
  • the right to make derivative works
  • the right to publicly display or perform the works

Copyright law does allow for the use of copyrighted material without asking for permission. Some works may be outside the copyright period (in the public domain) or, if still covered under copyright, use may fall under the Fair Use provision or another exception (described below). Use may be allowed under an Open License such as a Creative Commons License. It is up to you to decide whether the work you wish to use is protected under copyright and whether your use is permitted without permission. If permissions are required for your use, it is your responsibility to secure those permissions.

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 and that time period has been extended several times since the 1970s. 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. This is often described as “passing into the public domain.”

Works published before January 1, 1924 are in the public domain and not governed by copyright restrictions. If the work that you wish to use was published before 1924, it is in the public domain and you are free to use it.

However, if the publication date is after 1924, 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? Do you know who owns the copyright?

(Stanford University maintains a Copyright Renewal Database copyright renewal records of books published between 1923 and 1963.)

Exceptions, Exemptions, and Limitations

Use of materials protected by copyright is allowed in a number of instances. The most common cases as described on this page below. Most importantly, copyright law allows for fair use of materials protected by copyright. Additionally, exemptions to copyright protections exist for educational uses of copyrighted materials. Copyright holders can use Creative Commons licenses to grant broad license to use their copyrighted materials.

There are lots of 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

Issues of copyright and issues of plagiarism are separate and distinct, with different types of penalties. Confusion between these two concepts are understandable because both are discussed in higher education settings. However, it is important to understand the disparate meaning and implication of the two concepts.

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. Learn more about Plagiarism at UTC.


Introduction to Fair Use

What is Fair Use?

Fair use (17 U.S.C. §107) is an important part of copyright law that provides some flexibility for users and new creators. Because of fair use, certain kinds of uses are allowed, without permission or payment - in fact, even in the face of an explicit denial of permission - at any point during the copyright term. Fair use is why things like quoting a book in order to review it, or publicly displaying a reproduction of an artwork in order to critique it, are legal. At its core, fair use ensures that there are some kinds of uses that do not require permission or payment.

Although there are other exceptions to the far-reaching rights of copyright holders, most of those exceptions only apply in very limited circumstances. Fair use is much more flexible, but also much harder to understand and apply. To think through whether a particular use is a fair use, you have to look at the details of the use and other associated issues as a whole. Even then, fair use is unpredictable enough that the best anyone can do is make a well-informed, reasonable guess.

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

  1. Purpose and Character of the Use

    This is the only factor that deals with the proposed use, all the others deal with the work being used, the source work. 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.) Commercial or for-profit purposes weigh against fair use.

  2. Nature of the Original Work

    One element of this factor is whether the work is published or not. 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.

    Another element of this factor is whether the work is more "factual" or more "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? What about the annual "Dance Your Ph.D." contest?

  3. Amount and Substantiality of the Portion Used

    Amount: this is an element that many guidelines give bad advice about. A use is usually more in favor of fair use if it uses a smaller amount of the source work, and usually more likely to weigh against fair use if it uses a larger amount. But the amount is proportional! So 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 (and more fair). It's fairly easily understood in some contexts: borrowing the melodic "hook" of a song is borrowing the "heart," even if it's a small part of the song. In many contexts, however, it can be much less clear.

  4. Effect of the Use on the Potential Market For or Value Of the Source Work

    This factor is truly challenging: it asks users to become amateur economists, analyzing existing and potential future markets for a work, and predicting the effect a proposed use will have on those markets. But it can be thought of more simply: is the use in question substituting for a sale the source’s owner would otherwise make, either to the person making the proposed use or others? Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. 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, having been 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 a lot of room for argument and interpretation in transformative use!

Use the Fair Use Checklist to Evaluate Fair Use

If you are planning on making multiple copies of an item or using protected works for other purposes including publication or posting within UTC Learn, you will need to make a determination about fair use. It's not an easy task to think through whether a use you want to make is a fair use, 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 good way to develop your understanding of fair use is to discuss examples with others - you'll be surprised how easily reasonable people can disagree! Fair use is very context-dependent, so each user has to assess fair use independently, for each use.

The following checklist was developed as a tool to assist faculty in making a fair use determination. 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.

Download the Fair Use Checklist


Other Exceptions

Classroom Use

Copyright law places a 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.

In-class viewing is a public performance, but it's permitted under the Classroom Use Exemption. 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 any works. That means instructors can play movies and music for their students, at any length (though not from illegitimate copies!). Instructors can show students images, or original artworks. Students can perform arias, read poems, and act out scenes. And 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 doesn't apply online, even to wholly course-related activities and course websites. It doesn't apply to interactions that are not in-person, even simultaneous distance learning interactions.

The Classroom Use Exemption also only authorizes performance or display. If you are making or distributing copies (i.e., handing out readings in class), that is not an activity that the Classroom Use Exemption applies to.

The Classroom Exemption doesn't cover making copies at all; it says you can show a picture from a book, but it does not say that you can scan the picture out of the book in order to put it in a presentation file that you project from your computer. You may be able to copy the pictures from the book in order to use them in class, but if so, it will be because of fair use. If making the copies is a legitimate fair use, then subsequently showing them in class is probably permitted where the Classroom Use Exemption applies, and may be fair use in other circumstances.

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).

Audio and Video: Public Performances and Use in Teaching

Use of video and audio as a learning tool is increasing in our classrooms, as well as out-of-class review, learning, and study materials. You may also wish to use video or audio as part of a club or group activity or campus enrichment event. The most important consideration when considering using audio and video is whether the event is a public performance.

What is a Public Performance?

If a viewing is open to the public, in a public space, and persons attending are outside the normal circle of family and acquaintances, the viewing is most likely a public performance, even if there is no charge and/or educational content included in the event. If you are organizing an event which includes a public performance, you are responsible for securing public performance rights. Some streaming media available through the library include public performance rights, please contact us to determine the exact rights included. Most library DVDs do not include public performance rights and you are responsible for obtaining those rights prior to your event.

You do not need public performance rights for a private viewing of a video, most in-class viewing, or if the film is in the public domain.

Classroom Use Exemption for Video and Audio

Copyright law makes special provision for displaying images, playing motion pictures or sound recordings, or performing works in classes. Section 110 of the Copyright Act allows the performance or display of copyrighted works in the course of face-to-face teaching. Most of the time, showing things 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.

Examples:

  • Singing a song that all the students already know
  • Playing or singing from sheet music (legitimate copies (fair use/purchased/rented) only)
  • Watching a video (in whole or in part) from a DVD or VHS tape
  • Listening to music from a CD, tape, or record

This exception applies only to teachers and only in specific situations, but is not at all uncertain: teachers don't have to guess at market harm issues, or how much is an appropriately small amount.

Caveats:

  • Streaming Media provided through library databases is most often licensed to be used in instructional settings.
  • Online and distance classes are not covered by the Classroom Use Exemption, it only applies when students and teachers are physically present in the same space. You may be able to display things for your online/distance students, but you'll have to think about it in terms of fair use.
  • Outside of the non-profit face-to-face classroom environment, the Classroom Use Exemption doesn't apply. Non-classroom use of audio and video, such as in online instruction, at conferences, in school meetings, etc., may be allowed, but you have to think about it through the lens of fair use.

Online Courses and Streaming Media

When you want to use video and audio in an online class, there is less clear guidance regarding copyright. As mentioned above, the Classroom Use Exemption doesn’t apply to online courses. However, most streaming media provided by the library is licensed to be used in courses, eliminating the copyright concern. If you are using video or audio in an online class that is not provided through a library license or database, you will need to make a fair use determination.

Uses of multimedia outside the traditional classroom should be analyzed using the four factors of fair use. Sharing videos online with students, when you upload copies of the videos yourself, is usually a question of fair use. Linking to copies of videos online is another option for sharing videos with students, but it's always worth considering whether those videos are themselves legitimate copies, made under fair use.

The library can provide some streaming media for teaching under contracts which specifically include rights to use in online courses. Before you pay for use rights, check with the library to explore whether your use rights have been paid for or whether there are alternatives to paying a fee.

Some legal experts believe that classroom presentation of media may also be delivered via the Web to any location if instruction is occurring. Password protection for distribution of multimedia presentations is especially important when using copyrighted materials.

Licenses and Copyright Exceptions

Unfortunately, a lot of the media we use in real life today present some legal wrinkles that "old school" physical media don't. These media are generally available under license or contract, presenting separate legal issues than copyright.

Sites like YouTube and Vimeo have Terms of Service that say they are for personal use only. Some even specifically say they are for personal, non-commercial use. Subscription services like Netflix, Amazon Prime, and others also have Terms of Service, almost all of which also limit use to personal and/or non-commercial use. Some have even more specific limitations than that. It's unclear whether the terms of service on a free site, where you never clicked "I Agree", are legally enforceable, but with subscription services, you usually did actively agree to the terms of service at some point.

Is your teaching a personal use? No one really knows. Is your teaching non-commercial use? Also unclear. Most of the folks who run these services have not directly addressed such issues. Certainly it's common practice to play public online content, such as YouTube videos, in many different public settings, though not all such users may be aware that the terms of use present questions about such uses.

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. Many instructors do play YouTube videos in class, or play music they downloaded from iTunes. They may or may not be aware of the contract law issues that those uses present.

Purchased copies of media files often come with their own terms of use, which you usually actively agreed to at the time of purchase, and which also usually say the files are for personal and/or non-commercial use only. Again, whether instructional use is permitted under those terms is an issue of contract law more than copyright.

If the files were not purchased, you may not have to worry about contractual limitations on your use, but do still have to decide the copyright-law question of whether playing questionably-legitimate copies in class is fair use.

Note: ripping or otherwise digitizing audio or video from source media is quite likely fair use sometimes. But this proposition is fairly hotly contested by media companies, and some media like DVDs and Blu-Rays present additional legal issues related to "anticircumvention" provisions of the DMCA.


Permissions and Licenses

Creative Commons Licenses

Creative Commons Licenses are a tool that creators can use to easily define permitted uses of their works. Creative Commons licenses are not an alternative to copyright, they are based on a rightsholder’s ability to grant license for the uses they choose.

Using materials with Creative Commons licenses allows you to be certain that the use is allowed. For example, if you want to include images as background for a powerpoint presentation, Creative Commons CC-BY or CC-BY-NC licenses allow this use, which is not covered under Fair Use or Classroom Use exceptions.

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. Getting permission is not always difficult, however, 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 a copy of the work for a copyright notice, place and date of publication, author and publisher. If the work is a sound recording, examine the disk, tape cartridge, or cassette in which the recorded sound is fixed, 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.

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 can also usually be secured through a distributor. Swank Motion Pictures, Inc., is a major movie distributor and a public performance licensing agent in non-theatrical markets where feature entertainment movies are shown. Swank Motion Pictures, Inc., has exclusive distribution arrangements in many markets with most American movie producers for the motion pictures seen in theaters. Movie Licensing USA, a corporate division of Swank Motion Pictures, Inc., addresses the specific movie public performance site licensing needs of schools and public libraries.

If neither of these cases apply, you can proceed with contacting the rightsholder directly. Send a letter, email, or fax. You should 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 the UTC campus, open web access, etc.)

See “How to Obtain Permission,” US Copyright Office M10, or Getting Permission from the University of Texas for more detail.

Proceeding without Current Contact Information

If a publisher is out of business or the author is deceased, and in some other cases, the copyright holder cannot be located, despite reasonable efforts. The US Copyright Office has recognized this problem, calling such works “orphan works.” Much work is currently being done to create an exemption in the law that would encourage uses of such works by mitigating the liability risk.

At the present time, however, educators and libraries must make individual 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.

Sample Permission Letters

Remember: Getting permission can take a while! Although it doesn't always take this long, be aware that the process can take a few months.

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 specific provision or the fair use provision and there is no presumption against you for having asked permission.

No Response to Permission Request

Lack of response does not translate into 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.

This web site presents information about copyright law. The 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’ Collaborative Copyright page and the Clemson Libraries Copyright guide.

Creative Commons By License Unless otherwise noted, all content on the Copyright and Fair Use section of this site is licensed under a Creative Commons Attribution 4.0 International License.