Intellectual Property & Exceptions
- What is copyright?
- What types of works are protected by copyright?
- Which works are in the public domain?
- When can I apply fair use?
What is copyright?
Copyright is a legal concept that establishes a creator’s right to control the intangible but very real content—the intellectual property—of a created work. Copyright emerges automatically as a product of creation and begins at the moment a work is “fixed in tangible form.”
Copyright belongs exclusively to the creator and cannot be transferred except by legal agreement. The ownership of intellectual property—that is, the copyright—may be transferred as part of a publishing contract, in a standalone agreement, or it may occur at death as part of a larger estate. While registration with the US Copyright Office is not required it is recommended as registration is necessary to file a lawsuit for copyright infringement in US federal court and seek statutory damages and attorney’s fees. It also creates a public record of your copyright claim, which can be helpful for licensing and demonstrating ownership. Registration, typically (but not always) handled by your publisher, should be made within 90 days of publication to maximize protection.
What types of works are protected by copyright?
Copyright law applies to any original work, whether published or unpublished, so long as it appears “fixed” in any medium (print, electronic, film, sound recording, etc.). Only the expression, not the ideas or facts as such conveyed by it, qualifies for copyright protection. Copyrightable expression can take a wide variety of forms: poetry, fiction, scholarly writing, newspaper and magazine articles, letters, diaries, pamphlets, translations, advertisements, maps, photographs, cartoons, paintings, sculptures, motion pictures, musical compositions, etc.
Copyright laws, terms, and limitations vary by country, although bilateral and international copyright treaties have introduced some standards and protect works of foreign origin in other countries. Generally, then, you must obtain permission to reproduce works, regardless of where they were originally created or published. Copyright is not a permanent status; eventually a work’s copyright term expires and it passes into the public domain.
Which works are in the public domain?
Works in the public domain belong to the public at large and may be freely used without permission from anyone. Note, however, that use of a reproduction of a work in the public domain may require permission from the rights holder of the reproduction. In addition, a work being publicly accessible—say, widely available online—does not necessarily mean that it is in the public domain.
Whether a work is still protected by copyright or is in the public domain is governed by a complex set of laws that have changed over time, and different conditions apply to different works depending on how and when they were published. For example, because the United States was a late signatory to the Berne Convention, joining almost a century after the initial convention in the 19th century, copyright duration is often more complicated in the United States. Between the 1920s and the 1970s there were many major reforms to copyright duration, resulting in varied timelines for works to enter the public domain. In an attempt to “catch up” to a standardized schedule, works were temporarily frozen from entering the public domain in the early 2000s, but that freeze has been lifted. Now, there are some general guidelines available:
- Works first published 95 years ago will be released into the public domain at the start of their 95th year. For example, works published in 1929 were released into the public domain on January 1, 2024, and on January 1, 2025, works first published in 1930 were released into the public domain, and so on.
- Anything first published in the United States prior to January 1, 1964, for which copyright was neither filed nor renewed, is now in the public domain.
- All works of and by the US government of whatever type or medium are in the public domain, with acknowledgement of the caveats below.
Unpublished works also enjoy copyright protection. The term of this protection is dictated by the year in which it was created. A helpful chart of copyright terms for both unpublished and published works can be found here.
Materials created by the federal government are distinct from copies of publications, photographs, and other materials held in the collections of the US government, such as items in the Library of Congress or the National Archives and Records Administration, which may or may not be in the public domain. It should also be stressed that documents created by state or local governments, and/or foreign governments may also be protected by copyright.
In Canada and the European Union, copyright protection generally lasts for 70 years after the death of the author or creator. You should research local term of copyright for the works you plan to use, because you cannot assess them all under US copyright law. As an example, a work published in 1953 in the United Kingdom by an author who died in 2000 would be under copyright until 2070; however, a work published in the United States the same year may be in the public domain if the copyright was never applied for or not renewed, even if the author is still alive today.
Although you need not request permission to use material from public domain works, you should cite it appropriately and give full credit to the source the same way you would for any other material you use. Some excellent tools and additional resources to help research copyright terms and the public domain are available in our online resources.
When can I apply fair use?
Section 107 of US copyright law allows authors to quote or paraphrase brief excerpts or use limited illustrations from a work protected by copyright without seeking permission, provided that they are making fair use of the excerpt or illustration. More so than many other types of publications, academic works, such as those most commonly published by university presses, are likely candidates for a positive fair use assessment. Before seeking permissions for short excerpts, you should conduct a fair use analysis of your use of third-party material in your book project and exercise your right of fair use if you believe it applies. If you are confident that your proposed use of an excerpt is fair use, it is often better not to ask for permission.
For better or worse, copyright law does not set exact limits of the fair use of copyrighted works—i.e., there are no bright lines defining a fair use. For example, contrary to popular misconception, there is no legal basis to the idea that “fewer than 250 words” or “two lines of song lyrics” is automatically a fair use. Fair use is a highly contextual and case-specific provision of the law. What copyright law does clearly state, however, is that in determining whether or not the use made of a work in any particular case is fair, the following four factors should be considered:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the existing or potential market for, or value of, the copyrighted work.
In recent decades, transformative use has become a key issue in many court decisions about fair use. It does indeed speak directly to the purpose and character of the use, but should always be considered in combination with and never replace or override a full consideration of all four factors that Congress established as the basis of fair use in Section 107.
The general principles of fair use apply also to unpublished materials, but they generally receive stronger copyright protection than published work until they pass into the public domain. When in doubt, ask your publisher, your institution’s copyright librarian, or campus legal counsel for guidance.
Some caveats:
- Fair use may only be asserted with respect to copyright; it is not applicable to a license governing use of physically accessed material. (See discussion below.)
- A quotation for purposes other than scholarship, comment, or criticism— epigraphs are the most notable example of this—may not be considered “fair use” no matter how short the quotation.
- Some media may open you up to more litigation risk than others, so extra caution is recommended for song lyrics, poetry, and particular estates.
Consult with your editor if you have questions, and refer to the four-factor checklist (above) and other helpful tools provided in our List of Resources to assist in your deliberations. These tools can provide an important means for recording your decision-making process and provide a record of your fair use analysis.
In the Commonwealth of Nations, including the UK and Canada, fair dealing refers to a non-infringing set of exceptions to the exclusive right of copyright. 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 US copyright law. Nevertheless, fair dealing is more categorical and less contextual and flexible than the US doctrine of fair use.