12 Common Copyright Permission Myths

Though you may not believe all twelve of these myths, familiarity with them can

free your book or blog from legal hassles. Get it wrong, and an aggrieved copyright owner can block or remove your work by filing a simple online takedown notice -- all without filing a complaint in court.  Worse still, it can spark costly and time-consuming litigation.  

1.       There's no copyright notice, so no permission is required.    

Not true.  Since March 1, 1989, copyright notice has been optional. Before that date, a copyright notice was mandatory, and a work published without a notice risked the loss of copyright protection if not promptly and adequately corrected.

2.       If I give credit, I don't need permission.

Not true. Giving proper credit is not a defense against copyright infringement. Copyright infringement is using a work without the copyright owner's permission.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it. 

3.       I don't need permission because I only use a few words.

Not necessarily. How much you can borrow is a legal gray area. Sometimes, a small but important portion borrowed from a work can infringe. Since copyright law encourages creativity and innovation, courts may excuse specific socially productive but unauthorized uses. Those uses are called fair uses.  Fair use is a defense against the rigid application of copyright law. It is determined on a case-by-case basis. It considers what's been borrowed, how much was borrowed, how it was used, its importance, and the economic impact it may have on the original.  If you borrow the "heart" of a work, it weighs against fair use. Creative works are less amenable

to a fair use defense.    
 

4.       I don't need permission because I will adapt the original work.

No. You can't make a work your own by adapting it without permission.  Copyright law grants copyright owners the exclusive right to control modifications to their work. 

5.       Since the work is in the public domain, I don't have to clear permissions.

Not necessarily.  For example, a book or motion picture may have fallen into the public domain for technical reasons, but there may still be copyrights to contend with. While a book may be in the public domain, photos or other materials that appear in the book may remain legally protected.  Similarly, the composer of an in-copyright soundtrack to an otherwise public domain film can restrict the exhibition of that film by claiming a right to the music within.  If a character falls into the public domain, the former copyright owner may still stop the commercial use of that character if the use falsely implies their support of the use.         

6.       My publisher will handle the permissions.

Probably not.  Most publishers place that burden of clearing and paying for permissions on the author's shoulders.   

7.       I can always obtain permission later.

Later may be too late. Copyright owners have the unfettered right not to grant you permission.  However, it is better to know now than later that a critical component of your work cannot be cleared for use.    

8.       Since I plan to use it for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user; it's how the work is used. If the use falls outside the bounds of fair use -- even a nonprofit educational institution can be held liable for copyright infringement.  

9.       I don't need permission because the work I want to use is more than 75 years old.

Not necessarily. For works published after January 1, 1978, copyright protection lasts for the author's life plus another 70 years.  For a pre-1978 work by a sole author, the maximum term of copyright protection is 95 years from the date the work was published or registered.  For a work created by an employee within the scope of their work or a specially commissioned work, copyright persists for 95 years from publication or 120 years from the date of creation, whichever expires first.

10.      The material I want to quote is from an out-of-print book. Out-of-print means that the work is in the public domain.  Correct?

Not necessarily.  Out-of-print does not mean out-of-copyright.  When a book goes out of print, it usually means it is no longer profitable. While that may trigger an author's right to reclaim their copyright, it doesn't mean the book is in the public domain. See #9 above. 

11.     A Creative Commons ("CC") license means I can use the material without permission.  

Yes, but restrictions may apply.  A CC license allows specific uses for free. What those allowable uses are will vary.  For example, some CC licenses place restrictions on commercial and uncredited uses.  Some permit modifications; others may not.  To determine what is allowable, you must read the license carefully.  
  

12.    I found a photo on the Internet.  Since it was uncredited, I can use it in my book.    

Not true.  The ease with which users can upload or download online content nor the fact that content was posted anonymously on the internet places it in the public domain. 

 

 

Related:
A Primer on Fair Use

            Book Title Clearance & Trademark Registration Guide

            Book Contract Negotiation Checklist

LLOYD J.  JASSIN has practiced publishing, entertainment, and trademark law for over two decades.  Before becoming an attorney, he was Director of Publicity for Prentice Hall Press, a division of Simon & Schuster.  He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  Contact: The Law Offices of Lloyd J. Jassin, 1501 Broadway 12th FL, New York, NY 10036 | (212) 354-4442 (tel.) | Jassin@copylaw.com www.copylaw.org | Twitter

DISCLAIMER:  This article is not intended as legal advice.  Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article.  Furthermore, be aware that the principles contained in this article are subject to exceptions and qualifications.  Thus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution and obtain permission or an appropriate release.

Jassin Quoted in Fortune

I'm quoted in Fortune: Twitter Took a Trump Tweet Down, but Should It Have? And is Nickelback to Blame?

 

In Jeff John Roberts' column in Fortune I talk about Fair Use, and the expanding scope of transformative use in the context of political discussion.   

When Can I Legally Use, Repurpose and Publish Without Permission?

Clearing rights and permissions can be costly. Fortunately, the U.S. Copyright Act places exceptions and limitations on a copyright owner's right to demand a permission fee. Those exceptions and limitations are:  

• You can build on and share works in the public domain
  
• Unembellished ideas, concepts, principles and discoveries are not protected by copyright law. 
• The use qualifies as a fair use.
  
• When the owner has waived their interest in the work.

Below is more information about these important copyright exceptions and limitations. If after reading this you are still unsure whether permission is required, seek permission or the advice of counsel.

1.  The Public Domain (Expired & Lapsed Copyrights)

 

On January 1, 2022, works from 1926 fell into the public domain in the United States.  On January 1, 2023 copyrighted works from 1927 will enter the public domain, and so on. How long copyright protection lasts depends upon a number of factors, including, the date of publication, the date of the author's death, and in which countries you intend to publish the work.

Post 1977 Works.  For works created after December 31, 1977, the copyright last for 70 years after the author's death.  If a joint work, the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

Pre-1977 Works.  Before 1978 copyright lasted for 95 years from either registration or initial publication. However, many works fell into the public domain prior to 95 years due to failure to renew. Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright. If the owner failed to renew, their copyright was forfeited. 

The Copyright Renewal Trap.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner. For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew their copyright, the owner of the underlying work, a short story by Cornell Woolrich, did renew their copyright. Since the copyright in the film only extended to the new material added by the producers of the film, the owner of the copyright in the underlying short story was able to stop unauthorized distribution of the film. The takeaway? If a work is an adaption of another work, both the underlying rights holder, and the holder of the copyright in the derivative work may hold rights. 

Other Forms of Protection.  Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as trademark or unfair competition law (which protects against confusingly similar usage by another); the right of privacy (which protects a person's right to be left alone); the right of publicity (which protects an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad. Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new copyrightable material, may also require permission. 

Protection Abroad for U.S. Public Domain Works. Although a work may be in the public domain in the US, it may still be protected in other countries. For example a work by a US author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany, where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas.

2. Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether. Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to facts. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed, explained or illustrated. Be aware that where the dividing line between an unadorned or unprotectable idea lies, and one that is sufficiently developed to enjoy copyright protection, sometimes is hard to discern. As a general rule, copyright does not protect short phrases, names or titles either. However, short phrases, names and titles may be protected by trademark or unfair competition law if they serve a branding purpose. Fortunately, the use of a trademark as a point of reference in a story, or used in a non-deceptive way to criticize a product or service, will generally be deemed a fair or non-infringing use.

3. Fair Use

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. 

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement. The central point is that fair use determinations involve risk. So, if you can't make the decision yourself, and are risk adverse, seek permission.

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors. No one factor is determinative of the issue, although factor four, which relates to economic harm, weighs heavily in any fair use decision.  

• The purposes and character of the use, including whether the use is primarily commercial;
• The nature of the work that's been copied;
• The amount and importance of what was taken in relation to the original work as a whole;
• The effect the copying has on the marketability of the original work and its derivatives

Cutting Through the Fair Use Gobbledygook 

While there are no mechanical rules to define with precision what is a fair use, the following considerations, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.        

• Fair use favors transformative uses. Use the work as a springboard for new insights. Critique the original. Make a connection between it and other works. Use it to buttress your own arguments, or the arguments of others.

• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one. That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music.

• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works.  

• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.  

• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement. Make sure the amount you use is reasonable in light of the purpose of the copying.

• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively. 

• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.

• Parody is a work that that ridicules or mocks another work. Fair use favors parody. It does not favor satire. Make certain the parody is apparent. A conservative approach is to conjure up just enough of the original to convey your parodic points.  

• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  

• The most important consideration concerns economic harm. Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.  

4. Creative Commons
 

Creative Commons Buttons

  Creative Commons licenses are standardized licenses give the public permission to share and use a creative work on conditions set by the copyright owner. While neither an exception nor limitation on copyright, by clearly stating what is, and is not, a permissible use, CC licenses short circuits the need to seek formal permission. A CC license button (or link to the license) will appear in close proximity to the work. If you violate the terms of a CC license, in addition to termination of the license, the potential consequences include compensatory or statutory damages, or an injunction. Therefore, you must read a CC license very carefully.

If you plan to make use of a work that does not fall within the above four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time.

Finally, don't be afraid to negotiate rates with the rights holder, keeping in mind that non-profit organizations often receive more favorable permission quotes.   Also, if the amount you want to use is small, or the use will promote the rights holder, or contribute to the public good in a significant way, fees may be reduced or waived.  But, don't count on it.  

Additional Resources:

Trademark Registration and the Single Book Title
Copyright Office - Search Fair Use Opinions

Classroom Use Guidelines (not legal authority; but agreed-upon minimums)

Creative Commons

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  When in doubt, seek permission or the advice of counsel.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley &; Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

Faulkner Quote in "Midnight in Paris" Sparks Lawsuit

“The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.” 

                                                       -- Wood Allen's "Midnight in Paris"

 
The above quote from William Faulkner's "Requiem for a Nun" was used in Woody Allen's "Midnight in Paris" (2011) without permission.  It has sparked a copyright and trademark infringement lawsuit.  As reported by The Hollywood Reporter, the suit was filed with the U.S. District Court in Mississippi on Thursday. In the movie, Gil Pender (Owen Wilson), who utters Faulkner's words, is a successful Hollywood screenwriter who, to quote The New Yorker ,"considers himself a hack," someone "struggling to write a novel, a dubious-sounding story about a man who lives in the past."

The dialogue is categorized in the complaint as both an "infringing quote" and "likely to cause confusion, to cause mistake, and/or to deceive the infringing film's viewers as to a perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand." 

A good case can be made for fair use of the borrowed language.  The studio, if it wishes to litigate the matter, would argue that the screenwriter didn't lack imagination.  Allen wasn't padding the script or regurgitating Faulkner. He was bringing new insight to Faulkner, and the words quoted.  Among other things, William Faulkner is cultural shorthand for the struggling novelist who turns to Hollywood for fame and fortune. Gil called himself a Hollywood hack.   Faulkner called himself a failed poet who took up the novel.  Point.  Counterpoint. Gil's struggle is the inverse of Faulkner's.  How can we learn anything about ourselves if we can't quote enough to make a larger point about the human condition?  Put another way, the word "Faulkner" packs a lot of meaning. The motive for quoting Faulkner matters. It was to make a larger point -- not steal bread from the mouths of Faulkner's orphan children.    

Okay, but the Faulkner orphans might still wonder why Congress would allow Allen to borrow (steal?) their literary property - but not their feeding bottles or bonnets?  Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. Fair use recognizes that the reason for our nation's copyright laws is not so much for individual creators, but, rather to promote the progress of art and science.

Regarding the trademark claim, more likely than not it would be dismissed on a motion for summary judgment.   Arguably, it's not a trademark use. It's a passing reference in an artistic work to another artistic work.  Artistically relevant references to cultural icons, whether dead novelists or consumer products, are often protected under the First Amendment. They call it the Rogers artistic relevance test or exception. Ginger Rogers once tried to stop a movie that included her name in the title.  The movie was Fellini's satire "Ginger & Fred," which concerned two retired small-time dancers who were known as Ginger and Fred.  When Ginger Rogers learned of the film, she claimed the movie falsely implied she endorsed it - a violation of Section 43(a) of the Trademark Act. Affirming the trial court, the Second Circuit Court of Appeals held that, provided, a celebrity's name has some reasonable "artistic" relationship to the content of the work, and is neither "explicitly" misleading, nor a thinly veiled commercial advertisement, the slight risk that the celebrity's name might implicitly suggest endorsement or sponsorship, may be outweighed by the public interest in free expression. 

In the context of a recent blog on the HathiTrust ruling, I commented that when suing you have to keep in mind the "clear" purpose of copyright. Copyright may be called a "monopoly," but private reward must be balanced against the public good.  Based on what I know, my money is on Mr. Allen and Sony Pictures. 

 

Authors Hold No Veto Over HathiTrust's Mass Digitization of Books

Quote of the Day

"I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA." - Hon.Harold Baer, Jr

On Wednesday, a federal district judge held that the mass digitization of books and other printed material by university libraries, funded by Google, was a fair use. The decision was a blow for The Authors Guild, which brought the lawsuit.  At the heart of the litigation was, as Publishers Weekly described it, "a digitization collective of research libraries . . . built with millions of “unauthorized” scans created by Google."

What the HathiTrust litigation makes clear is that the struggle over copyright is sometimes complicated, but not in this instance. As the music business learned (or should have learned), suing moms and groups of students for sharing music files does not endear you to the general public. Likewise, the prospect of denying library patrons with print disabilities access to books and other print materials, didn't go over big with Judge Harold Baer, Jr.

What to Consider When Considering Fair Use

Fair use allows limited copying of in-copyright material without permission for socially productive purposes such as commentary, criticism, news reporting and parody.  However, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use. 

The fair use doctrine acknowledges that copyright is essential in theory, but may be pernicious in practice. Using a fairness test, courts balance the rivalrous property interests of copyright owners against the societal interest in permission-free access. 

Fair use is a defense to copyright infringement.  So, think defensively.  As a general rule, transformative uses, or uses that challenge, construe, tease, or poke fun at the original, resulting in new insights and meaning, are favored by courts.  

To determine whether a use is a fair use, courts consider the below four factors.  No one factor is determinative, although factor four, which relates to economic harm to the copyright owner, weighs heavily in any fair use decision. 

1. The purposes and character of the use, including whether the use is primarily commercial; 
2. The nature of the work that's been copied;
3. The amount and importance of what was taken in relation to the original work as a whole;
4. The effect the copying has on the marketability of the original work and its derivatives

What to Consider When Considering Fair Use

While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.       

• Fair use favors transformative uses.   Use the work as a springboard for new insights.   Critique the original.  Make a connection between it and other works.  Use it to buttress your own arguments, or the arguments of others.  
• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one.  That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works. 
• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.  Make sure the amount you use is reasonable in light of the purpose of the copying.  
• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
• Parody is a work that that ridicules or mocks another work.  Fair use favors parody.  It does not favor satire.  Make certain the parody is apparent.  A conservative approach is to conjure up just enough of the original to convey your parodic points. 
• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
• The most important consideration concerns economic harm.  Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.

To paraphrase the Chicago Manual of Style, fair use is a use that is fair, so be bold, but also heed the Copyright Office's warning: "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."

Trademark Fair Use

Like copyright law, claims of trademark protection can overreach the bounds of justifiable legal rights. Fortunately, the First Amendment states that there shall be “no law” restricting freedom of the speech or the press. The trademark fair use doctrine allows the use of a trademark when it is used in a way not to deceive the public. For example, it is a fair use to use a trademark  in the title of a literary work if done in good faith to convey a message about what the work is about, provided you don’t suggest that the work is approved or endorsed by the trademark holder. 

Fairness, like beauty, can be debated, but not easily defined.  If you are uncomfortable being unsure, err on the side of caution and seek permission, or consult with a copyright or trademark attorney.    


Section 107 of the U.S. Copyright Act

Additional Resources:
Trademark Registration and the Single Book Title

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).  Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he was First Amendment counsel to the Independent Book Publishers Association  (IBPA) and is a member of the The Beacon Press advisory board. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

Author's Guide to Copyright Clearances and Permissions

You hate clearing permissions.   After all, they are time consuming and expensive.  However, some types of use don't require permission.  If you answer yes to any of the following questions, you may not need permission.   

(i)  Is the material is in the "public domain" (i.e. out of copyright)?

(ii)  Is the material is uncopyrightable (e.g., unadorned ideas are common property)?

(iii) Is the work subject to a "Creative Commons" license?

(iv) Is the use a fair use?

This checklist is explained in greater detail below.  

Of course, if you are unsure whether a work is protected by copyright, or other intellectual property laws, seek legal advice or obtain permission. 

If you plan to make use of a work that does not fall within these four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time. 

Public Domain (Expired & Forfeited Copyrights)

 

Copyright protection does not last forever. That is why copyright is often called a "limited monopoly.” When copyrights grow old and die, the work they protected falls into the public domain. 

Duration depends upon a number of factors, including, the date of publication, and the date of the author's death.  Literary and artistic works published before 1923 are out of copyright in the United States, and can be used (subject to the below provisos) without permission.    

 

For works created after December 31, 1977, the duration of copyright is 70 years after the author's death.  For works for hire created after December 31, 1977, the duration of copyright is 95 years after publication. 

For works published between 1923 and 1977 the term of copyright is 95 years from initial publication.   However, special rules apply to works created or published before 1978.  Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright.  If the owner failed to renew, their copyright was forfeited.  A tremendous number of works entered the public domain because renewal was not made during the 28th year.  The renewal scenario requires a further qualification.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner.  For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew during the 28th year, the owner of the underlying work, a short story by Cornell Woolrich, renewed the copyright of the short story.  Since the copyright in the film only extended to the new material added by the producer of the film, the owner of the copyright in the short story was able to stop unauthorized distribution of the film.   Similarly, failure to adhere to the notice requirements could toss a work into the public domain.  Before 1988, publication without a proper copyright notice could also invalidate the copyright.

Subject to certain exceptions, public domain works may be freely copied and used in the creation of new works without permission, or authorization, of the former copyright owners. 

Public Domain Traps & Pitfalls

Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as: trademark or unfair competition laws (which protect against confusingly similar usage by another); the right of privacy (a person's right to be left alone); the right of publicity (an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad.  Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new material, may also require permission. 

 

The following is, perhaps, the most insidious trap of all. Although a work may be in the public domain in the United States, it may still be protected in other countries. For example a work by a United States author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany; where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas. 

Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether.  Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to  facts.  As a general rule, copyright does not protect short phrases, names or titles.  You can, however, trademark certain short phrases, names and series titles, provided, the mark is not already used for similar goods or services.  Copyright does protect the way ideas, concepts, procedures, principles and discoveries are described, explained or illustrated; it only protects the unique way in which they are expressed.  As is to be expected, the dividing line between an unadorned or unprotectable idea, concept, principle or theory, and one that is sufficiently developed to enjoy copyright protection, is often murky.      

Creative Commons

 

Some people and organizations use Creative Commons licenses to make their works available for free to the public. The license appears in close proximity to the work. With a Creative Commons license, the author or creator chooses a set of conditions they wish to apply to their work. If you violate the terms of the license, the potential consequences include compensatory or statutory damages, or an injunction.  So, read the Creative Commons license carefully!
Fair Use

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission.   The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster."  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.  

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement.   The central point is that fair use determinations involve risk.  So, if you can't make the decision yourself, and are risk adverse, seek permission.       

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors.  No one factor is determinative, although factor four, which relates to economic harm, weighs heavily in any fair use decision. 

1. The purposes and character of the use, including whether the use is primarily commercial; 
2. The nature of the work that's been copied;
3. The amount and importance of what was taken in relation to the original work as a whole;
4. The effect the copying has on the marketability of the original work and its derivatives

Top 10 Considerations When Evaluating Fair Use 

While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.       

• Fair use favors transformative uses.   Use the work as a springboard for new insights.   Critique the original.  Make a connection between it and other works.  Use it to buttress your own arguments, or the arguments of others.  
• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one.  That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works. 
• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.  Make sure the amount you use is reasonable in light of the purpose of the copying.  
• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
• Parody is a work that that ridicules or mocks another work.  Fair use favors parody.  It does not favor satire.  Make certain the parody is apparent.  A conservative approach is to conjure up just enough of the original to convey your parodic points. 
• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
• The most important consideration concerns economic harm.  Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.

To paraphrase the Chicago Manual of Style, fair use is a use that is fair, so be bold, but also heed the Copyright Office's warning: "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."
Fairness, like beauty, can be debated, but not easily defined.  If you are unsure, or, if permission is denied and you feel the material is important to your work, consult a copyright attorney.   


Additional Resources:

Copyright Office - Search Fair Use Opinions
Classroom Use Guidelines (not legal authority; but agreed-upon minimums)
Creative Commons

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin