For the sake of our discussion, access-based permissions refer to permissions given or received for access to physical property or published information. (This is not a standard usage; indeed, there is no specific term for this type of permission.) It is not directly associated with copyright, although the material to which one is given access may also be creative work that is protected by copyright laws. In such cases, one must also obtain the permission of the work’s copyright holder in order to use the work in an otherwise infringing manner. In other circumstances, however, the material may be creative work that has already passed into the public domain. If one is not able to access copies of such public domain material from other sources, one may still have to negotiate and agree to licensing terms established by the physical owner in order to make or acquire a copy of the material for use in one’s publication. Such licenses can closely resemble licenses for use of intellectual property, but are founded on laws governing physical property, not copyright law.
Copyright is a form of protection provided by the law of a country that grants the creator of an original work that is fixed in a tangible medium of expression the exclusive right to its use and distribution for a limited time in order to reward the creator for their creation and encourage them to produce more creative work. Examples of work protected in the United States include literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.
Fair dealing refers to a non-infringing set of exceptions to the exclusive right of copyright in the Commonwealth of Nations, including the U.K. and Canada. While each country has its own particular laws, most of these exceptions—for example, noncommercial research, criticism and review, certain educational uses, and reporting—allow similar types of uses as those allowed under the fair use provisions of U.S. copyright law. Nevertheless, fair dealing is more categorical and less contextual and flexible than the U.S. doctrine of fair use.
Fair use is an exception to United States copyright law, allowing the legal reproduction of limited portions of copyrighted material—both published and unpublished—without permission from the copyright holder. Examples of fair use in practice include works like literary criticism, teaching, news reporting, and parody. Fair use provides balance between the rights of copyright holders and the public interest. Copyright law describes four factors for determining whether or not the use of third party material qualifies as fair use. These factors must be weighed together in making a fair use decision, and no factor on its own determines whether a use is fair. The four factors are:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Although permission from the copyright holder is not necessary for fair use, the proper credit should be given to the creator.
intellectual property (IP)
Intellectual property, sometimes called IP, is a legal term that refers to creations of the mind. This includes copyright, patents, trademarks, trade secrets, and other forms of creative and intellectual work. Creators’ intellectual property is protected by law, such as copyright and patent law. In the United States, the power to regulate these areas comes from the Constitution (Article I, Section 8). This grants Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
A license is the legal right to do something one would not otherwise be allowed to do. In relation to copyright, a license is a formal agreement granting permission for someone who is not the copyright holder to use a copyrighted work. Licenses may include grant of exclusive or non-exclusive rights of use, for a certain term, in a certain territory, in certain forms, or with other restrictions.
Moral rights differ from copyright, and generally include the right of attribution in a work, the right to integrity in that work, and the preservation of the work. Moral rights have narrow application in the United States: the Visual Artists Rights Act (VARA) recognizes moral rights only as they apply to listed works of visual art. VARA gives qualifying authors the right to claim authorship, the right to prevent the use of one’s name on any work they did not create, the right to prevent use of one’s name on a work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation, the right to prevent distortion, mutilation, or modification of a work that would prejudice the author’s honor or reputation, and the right to prevent the destruction of a work of art of “recognized stature.”
An orphan work is a work that is still protected by copyright but for which no copyright holder can be identified. This may be because the rightsholder is lost, anonymous, or otherwise unknown. The inability to find the copyright holder means that one cannot gain permission to use an orphan work, and if one’s intended use goes beyond fair use, the potential user would be legally responsible for copyright infringement if the rightsholder eventually comes forward. Though several legislative bills have been introduced in Congress to address orphan works, legislation has not yet been passed. The Copyright Office issued an analysis and recommendation for the problem of orphan works under U.S. copyright law, Orphan Works and Mass Digitization: A Report of the Register of Copyrights, in June 2015.
In order for an author to include third party materials—quotes, images, etc.—in a book or other work, these materials must either be 1) in the public domain, 2) considered fair use, or 3) used with permission. In the latter instance, the author must acquire permission to use these copyrighted materials from the copyright holder. Permission is a legal agreement between the copyright holder and the author/publisher who wants to use the copyrighted material that details the conditions under which the copyrighted material may be used. This often includes a monetary fee as well as limitations based on language, edition, and print run.
Plagiarism is the use of previously existing material in a new work without proper citation or acknowledgement. While such use may also infringe the copyright in the source material, plagiarism involves the misrepresentation of the recycled material in question as the author’s own new, original work. As a form of intellectual theft or misappropriation, it represents an ethical breach of conduct.
Work in the public domain is work that is not protected by copyright law. There are various reasons a work may be in the public domain, including the expiration of its copyright, work that is not copyrightable and automatically in the public domain, and work dedicated to the public domain by its copyright holder. Copyright expires after a certain number of years; the exact number has changed over time and varies depending on the situation. Examples of works that are not subject to copyright protection are U.S. government documents, facts, names, titles, and numbers. If a work is in the public domain, it is available for any use.
Also known as subrights, subsidiary rights refers to the full suite of rights for all the potential uses of a copyrighted work. Unless otherwise specified by contract, the copyright holder controls all subsidiary rights, and they are all conveyed as part of the copyright when copyright is transferred or assigned to a new party. Each subright can be licensed and exercised separately, on an exclusive or nonexclusive basis. Typical subrights include rights governing different formats like hardbacks, paperbacks, ebooks, large print, and other variations; the rights to create new iterations of an intellectual property like abridgements, excerpted uses, authorized reprints, and book club editions; and rights for adaptations like translations, stage productions, movies, and audiobooks. Subsidiary rights earnings usually require different financial mechanisms than royalties based on individual book sales, and should be addressed and established separately in a publishing contract.
third party material
Third party material is previously existing material used in a work that comes from another source. Unless it is in the public domain, it exists under another copyright and is typically used with permission of the copyright holder or under the fair use provisions of U.S. copyright law. In terms of the copyright of the new work, third party material is material that must be excluded from the new copyright claim.
Transformative uses are those that add something new, with a further purpose or different character than the original use of the work. Let’s say an artist or writer creates a work, then later on another artist or writer takes that work and alters it, creating a parody, a satire, or a critique, for example. The transformative aspect of the latter work would depend upon how much of the original work was used and how much it was transformed, “altering the original with new expression, meaning, or message” (Campbell v. Acuff-Rose Music). Transformative use is generally considered to be fair use, but as with all fair use instances there are no definite boundaries of transformative use and one must weigh each of the four factors in order to determine whether one’s transformative use might be considered fair use.
work made for hire
A work made for hire is a work produced by a separate creator under the agreement that the creator will be compensated, often monetarily, and will not retain copyright of the work. Generally, there are two categories of works made for hire: those that are commissioned for creation and those that are created by an employee while on the job. If the work is created through commission, the work made for hire must be established prior to the creation of the work through signed documentation. No additional permission is required to use works made for hire, but the creator should still be credited for his or her work.