Permissions FAQ: Part I

Intellectual Property & Exceptions

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.

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Copyright law applies to any original work, whether published or unpublished, so long as it appears “fixed” in any medium (print, electronic, film, sound recording, etc.).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, tables, graphs, 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. 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.

Fortunately, there a few easy rules of thumb:

  • Anything first published in the United States prior to 1 January 1923 is in the public domain.
  • Anything first published in the United States prior to 1 January 1964 for which copyright was not renewed is now in the public domain.
  • All works of and by the U.S. government of whatever type or medium are in the public domain.

Materials created by the federal government are distinct from copies of publications, photographs, and other materials held in the collections of the U.S. 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, copyright protection generally lasts for 50 years after the death of the author or creator; in the European Union, copyright protection generally lasts for 70 years after the death of the creator.

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. 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 U.S. 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. Moreso 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:

  1. The purpose and character of the use, including whether such use is of a 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; and
  4. 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.
  • A quotation for purposes other than scholarship, comment, or criticism—“decorative” epigraphs are the most notable example of this—may not be considered “fair use” no matter how short the quotation.

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 U.K. 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 U.S. copyright law. Nevertheless, fair dealing is more categorical and less contextual and flexible than the U.S. doctrine of fair use.

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