Works Not Covered By Copyright

You may want to use or incorporate someone else's work into your own. While the works of others may be protected by copyright, there are a class of works that fall outside the scope of copyright law. The following categories of work are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice.

• Facts
• Works created by the United States Government
• Works not fixed in a tangible form of expression
• Ideas, concepts, principles, or discoveries
• Words, phrases, or familiar symbols

Additionally, even works that qualify for copyright protection fall into the public domain after a certain period of time.

Facts

You can use facts in your online work without the fear of liability because facts are not protected under copyright law. As we explain in the section on Copyrightable Subject Matter, copyright protection applies to "original works of authorship." Although the level of creativity required to be "original" is extremely low, facts do not have the requisite level of creativity. For example, baseball scores, telephone numbers, dates of birth, and the number of people at a protest are noncopyrightable facts.

However, there may be situations in which a compilation of facts may be protected if the creator of the original publication selected, coordinated, or arranged the facts in an original way. For example, a sports almanac may arrange baseball scores in a creative way, a genealogy chart may arrange birth dates in an original way, or a cookbook may arrange ingredients in a creative and original way as part of its recipes. In each of those instances, the creator of the work would have a copyright in the creative arrangement of the facts, but not the facts themselves.

Works Created by the United States Government

You can use any work of the United States Government because copyright law does not cover such works. Works of the United States Government include:

• federal judicial decisions
• federal statutes
• speeches of federal government officials given in the course of their employment
• federal government press releases
• federal government reports (such as census reports)

However, note that copyright law may protect works created by others that the United States Government receives by assignment, bequest, or otherwise.

While federal copyright law does not expressly apply to the works of state governments, state laws are similarly uncopyrightable. See Tim Armstrong's analysis in Can States Copyright Their Statutes? for more information. However, be aware that Oregon recently asserted copyright ownership "in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law." See our blog post, Oregon Claims Copyright in Its Statutes -- Well, Sort Of, discussing the validity of Oregon's copyright claim.

Works Not Fixed in a Tangible Form of Expression

Copyright protection only applies to "original works of authorship" that are "fixed in a tangible medium of expression." Consequently, if you attend an improvisational speech that has not been notated or recorded, you may publish the speech in your online work without fear of liability. (However, you should cite the speech in order to avoid the taint of plagiarism.)

Ideas, concepts, or principles

Copyright does not cover ideas, concepts, and principles themselves, only the form in which they are expressed. For instance, merely coming up with an idea does not make you the copyright owner because you haven't actually expressed anything. You become the copyright owner only when you put that idea into "expression" through words (e.g., in a blog post) or other tangible form (e.g., in a video, a photograph, or a podcast).

For example, Einstein's theory of special relativity is not copyrightable because it is an idea (or concept or principle). However, Einstein's article, "On the Electrodynamics of Moving Bodies," in which he explained and expressed the theory, was copyrightable.

If you come across an idea/concept/principle, you can use it in your online work with out fear of liability as long as you do not use the form in which it is expressed (which may be copyrightable). However, you should consider citing to the source in order to avoid a claim of plagiarism.

Words, Phrases, or Familiar Symbols

In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.)

While copyright protection may not apply, be aware that trademark law protects certain words, short phrases, slogans, symbols, and designs. For example, trademark law protects the word "Apple," the slogan "Got Milk?" and the Nike symbol of the "swoosh." See the Trademark section for more information on using a trademark protected word, phrase, symbol, or other indicator that identifies the source or sponsorship of goods or services.

Works in the Public Domain

You can use any work in the public domain without obtaining permission of the copyright owner. A work falls into the public domain when the copyright term expires or, in the case of works published between 1923 and 1989, if the work lost copyright protection because the copyright owner neglected to take the necessary steps under then-applicable copyright law. Additionally, a copyright owner can directly dedicate a work to the public domain. This is done expressly, through language such as "Everything on this site to which we own copyright is hereby released into the public domain," or by using the Creative Commons Public Domain Dedication.

Determining whether any particular work is in the public domain is a complex task, and the answer often depends upon when the work was published, whether it was published with notice, and whether the copyright holder subsequently registered the work. However, there are some rules of thumb that will help you with this analysis:

• First, any work that was published before 1923 is in the public domain.
• Second, any work published without a copyright notice between 1923 and 1977 is in the public domain.
• Third, works created after 1989 generally are not in the public domain, regardless of notice or registration, unless the work has been dedicated to the public domain.

If you want to go beyond these rules of thumb to understand more of the specifics, Cornell Law School has an excellent chart that shows when different types of works (published, unpublished, published outside the US) will fall into the public domain based on an analysis of pre- and post-1978 copyright law. Additionally, the Creative Commons' Podcasting Legal Guide has a terrific discussion on how to determine whether a work is in the public domain.

A word of caution about using public domain works. You should check whether a public domain work has already been incorporated into another work. Although the public domain portions of that new work are not protected, the author's new expressive content and selection and arrangement of the public domain work may be protected by copyright. Creative Commons' Podcasting Legal Guide gives two examples that illustrates this potential issue:

• Photographs of the Mona Lisa that are designed to precisely replicate the original work will likely not enjoy copyright protection because they are intended to capture Leonardo Da Vinci's expression of the painting as closely as possible. However, a photograph of a sculpture that is in the public domain may be protected by copyright because of the skill and creativity involved in composing the photograph.
• The text of a book in the public domain may be used freely, but a current publisher of the book may have copyright rights to the expressive elements of a recently published edition (e.g. the new layout, cover art, etc.).

Fair Use

The policy behind copyright law is not simply to protect the rights of those who produce content, but to "promote the progress of science and useful arts." U.S. Const. Art. I, § 8, cl. 8. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.

Section 107 of the Copyright Act defines fair use as follows:

Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test.

The Four Fair Use Factors

1. Purpose and Character of Your Use

If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). Purposes such as these are often considered "in the public interest" and are favored by the courts over uses that merely seek to profit from another’s work. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004). When you put copyrighted material to new use, this furthers the goal of copyright to "promote the progress of science and useful arts."

In evaluating the purpose and character of your use, a court will look to whether the new work you've created is "transformative" and adds a new meaning or message. To be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. Although transformative use is not absolutely necessary, the more transformative your use is, the less you will have to show on the remaining three factors.

A common misconception is that any for-profit use of someone else's work is not fair use and that any not-for-profit use is fair. In actuality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the circumstances. Courts originally presumed that if your use was commercial it was an unfair exploitation. They later abandoned that assumption because many of the possible fair uses of a work listed in section 107's preamble, such as uses for purposes of news reporting, are conducted for profit. Although courts still consider the commercial nature of the use as part of their analysis, they will not brand a transformative use unfair simply because it makes a profit. Accordingly, the presence of advertising on a website would not, in of itself, doom one’s claim to fair use.

If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use. In addition, if you use the original work in order to create a parody this may qualify as fair use so long as the thrust of the parody is directed toward the original work or its creator.

Moreover, if the original work or your use of it has news value, this can also increase the likelihood that your use is a fair use. Although there is no particular legal doctrine specifying how this is weighed, several court opinions have cited the newsworthiness of the work in question when finding in favor of fair use. See, e.g., Diebold, 337 F. Supp. at 1203 (concluding "[i]t is hard to imagine a subject the discussion of which could be more in the public’s interest”), Norse v. Henry Holt & Co., 847 F. Supp. 142, 147 (N.D. Cal. 1994) (noting "the public benefits from the additional knowledge that Morgan provides about William Burroughs and other writers of the same era").

2. Nature of the Copyrighted Work

In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may rely more heavily on these items and still enjoy the protections of fair use. Unlike factual works, fictional works are typically given greater protection in a fair use analysis. So, for example, taking newsworthy quotes from a research report is more likely to be protected by fair use than quoting from a novel. However, this question is not determinative, and courts have found fair use of fictional works in some of the pivotal cases on the subject. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).

The published or unpublished nature of the original work is only a determining factor in a narrow class of cases. In 1992, Congress amended the Copyright Act to add that fair use may apply to unpublished works. See 17 U.S.C. § 107. This distinction remains mostly to protect the secrecy of works that are on their way to publication. Therefore, the nature of the copyrighted work is often a small part of the fair use analysis, which is more often determined by looking at the remaining three factors.

3. Amount and Substantiality of the Portion Used

Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability. Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.

If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.

Of course, if you are reviewing a book or movie, you may need to reprint portions of the copyrighted work in the course of reviewing it in order to make you points. Even substantial quotations may qualify as fair use in "a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections.

4. The Effect of Your Use Upon the Potential Market for the Copyrighted Work

In examining the fourth factor, which courts tend to view as the most important factor, a court will look to see how much the market value of the copyrighted work is affected by the use in question. This factor will weigh in favor of the copyright holder if “unrestricted and widespread” use similar to the one in question would have a “substantially adverse impact” on the potential market for the work.

Although the copyright holder need not have established a market for the work beforehand, he or she must demonstrate that the market is "traditional, reasonable, or likely to be developed." Ringgold v. Black Entm't TV, 126 F.3d 70, 81 (2d Cir. 1997). An actual effect on the number of licensing requests need not be shown. The fact that the original work was distributed for free, however, may weigh against a finding that the work had publication value. See Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 25 (1st Cir. 2000). Likewise, the fact that the source is out of print or no longer sold will also weigh in favor of fair use.

The analysis under this factor will also depend on the nature of the original work; the author of a popular blog or website may argue that there was an established market since some such authors have been given contracts to turn their works into books. Therefore, a finding of fair use may hinge on the nature of the circulated work; simple e-mails such as those in the Diebold case (discussed in detail below) are unlikely to have a market, while blog posts and other creative content have potential to be turned into published books or otherwise sold. In addition, the author of a work not available online, or available only through a paid subscription, may argue that the use in question will hurt the potential market value of that work on the Internet.

Assessing the impact on a copyrighted work’s market value often overlaps with the third factor because the amount and importance of the portion used will often determine how much value the original loses. For instance, the publication of five lines from a 100 page epic poem will not hurt the market for the original in the same way as the publication of the entirety of a five-line poem.

This fourth factor is concerned only with economic harm caused by substitution for the original, not by criticism. That your use harms the copyright holder through negative publicity or by convincing people of your critical point of view is not part of the analysis. As the Supreme Court has stated:

[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because "parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically," the role of the courts is to distinguish between '[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.'"

Campbell, 510 U.S. at 591-92 (citations omitted).

The fact that your use creates or improves the market for the original work will favor a finding for fair use on this factor. See Nunez, 235 F.3d at 25 (finding fair use when the publication of nude photos actually stirred the controversy that created their market value and there was no evidence that the market existed beforehand).

In summary, although courts will balance all four factors when assessing fair use, the fair use defense is most likely to apply when the infringing use involves criticism, comment, news reporting, teaching, scholarship, or research.  In addition, some general rules of thumb can be helpful in analyzing fair use:

• A use that transforms the original work in some way is more likely to be a fair use;


• A non-profit use is more likely to be considered a fair use than a for-profit use;


• A shorter excerpt is more likely to be a fair use than a long one; and


• A use that cannot act as a replacement for the original work is more likely to be a fair use than one that can serve as a replacement.

Some Special Considerations

Publishing the Contents of Private Letters and E-Mail (including letters from lawyers threatening legal action): Fair use may protect the publication of the content of private letters and email, including communications from lawyers threatening legal action. As mentioned above, unpublished materials sometimes enjoy greater protection than published documents. Although an author may argue that the "unpublished" nature of his or her correspondence warrants a finding against fair use, such an argument carries weight only when the use involves a heretofore secret work “on its way” to publication, which is never the case for lawyers' cease-and-desist letters. Recently, two students at Swarthmore college posted an archive of internal emails among Diebold employees; an online newspaper linked to the archive in an article critical of Diebold’s voting machines. A court held that although the emails were not published, publishing them was nonetheless protected by fair use. Diebold, 337 F. Supp. 2d at 1203. The court found that the important fourth fair use factor weighed in favor of fair use because Diebold had no intention of selling the archive for profit and therefore it lost no value when the archive was published online. The court also noted the students and newspaper use was intended to support criticism of the company, which was a transformative use under the first factor.

Copyright as a Tool to Silence Criticism: Sometimes, copyright owners try to use copyright law as a weapon to squelch speech that is critical of them or their works of authorship. For example, in Savage v. CAIR, a conservative radio host has filed a copyright infringement lawsuit against the Council on American-Islamic Relations for using excerpts of his radio show in order to criticize his rabidly anti-Muslim views and to call for sponsors to withdraw their support from his program. CAIR's use of these audio excerpts, and similar uses of copyrighted material in order to criticize a copyright owner, are almost certainly protected by fair use. As EFF argues in its brief asking the court to dismiss Savage's lawsuit:

The fair use doctrine exists precisely to prevent copyright holders from doing what Savage attempts here -- abusing a limited monopoly granted to encourage creativity to punish dissenters and to chill speech aimed at criticizing copyrighted works. For all his ironic appeals to the First Amendment, Savage asks this Court to punish CAIR for publicly criticizing the offensive content of his radio program. That CAIR's criticism might result in Savage losing popularity (and advertisers) is of no moment to either a free speech or copyright infringement analysis and indeed, should be expected in the marketplace of ideas that the First Amendment and Copyright Act strongly protect.

For another case involving an attempted use of copyright to silence criticism, see our database entry, ABC v. Spocko.

Practical Tips for Avoiding Copyright Liability

While there is no definitive test for determining whether your use of another's copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

• Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
• Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
• Add something new or beneficial (don't just copy it -- improve it!);
• If your source is nonfiction, limit your copying to the facts and data; and
• Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.

Linking to Copyrighted Materials

If you publish your work online, you are already in the practice of using links to enhance your content. The Web's basic architecture relies heavily on the ability of webpages to link to other pages to allow natural navigation between related content. It is hard to imagine the smooth functioning (or even continued existence) of the Web without hypertext links that act as a reference system identifying and enabling quick access to other material. Fortunately, courts generally agree that linking to another website does not infringe the copyrights of that site, nor does it give rise to a likelihood of confusion necessary for a federal trademark infringement claim. However, different kinds of linking raise different legal issues, and the law is not entirely settled in all of these areas. Moreover, some linking activities may expose you to liability for contributory copyright infringement or trafficking in circumvention technology in violation of the Digital Millennium Copyright Act (DMCA).

Types of Links

Deep Linking: The most straightforward case is so-called "deep linking," which refers to placing a link on your site that leads to a particular page within another site (i.e., other than its homepage). No court has ever found that deep linking to another website constitutes copyright or trademark infringement. Therefore, you can link to other websites without serious concerns about legal liability for the link itself, with the exception of activities that might be contributory copyright infringement or trafficking in circumvention technology (discussed below).

Inline linking: Inline linking involves placing a line of HTML on your site that so that your webpage displays content directly from another site. We now commonly refer to this practice as embedding. For example, many bloggers embed videos from YouTube on their blogs to illustrate a point or initiate discussion. While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007). Other courts may or may not follow this reasoning. However, the Ninth Circuit's decision is consistent with the majority of copyright linking cases which have found that linking, whether simple, deep, or inline, does not give rise to liability for copyright infringement. For discussion of these cases, see The Internet Law Treatise. In addition, merely using an inline link should not create trademark liability, unless you do something affirmative to create the impression that you are somehow affiliated with or endorsed by the site to which you are linking. Thus, embedding media in your online work should not expose you to legal liability, with the possible exceptions discussed below.

Framing: Framing refers to the practice of dividing a web page into multiple sections that use HTML code to pull content from different sources. The law should treat framing much like inline linking for purposes of copyright infringement (see discussion immediately above), but no case has considered the issue of framing in the context of copyright law. Framing potentially raises trademark problems. Depending on how you design your page, a user might be confused into believing that all of the source material is yours. Some plaintiffs have sued websites for framing under trademark and related areas of law, but most cases have settled and the law remains unclear.

Linking to Infringing Works

The situation changes when you knowingly link to works that clearly infringe somebody's copyright, like pirated music files or video clips of commercially distributed movies and music videos. In this situation, you might be liable for what is known as "contributory copyright infringement." Contributory copyright infringement occurs by "intentionally inducing or encouraging direct infringement" of a copyrighted work. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd, 545 U.S. 913, (2005). As long as you do not know that a work infringes someone's copyright, then you cannot be held liable for contributory infringement for directing users to that work. On the other hand, it is not necessarily safe to simply claim that you "didn't know" when the circumstances make it clear the material you link to is infringing. Use your common sense. Fred vonLohman gives the following rules of thumb to help avoid contributory copyright infringement (specifically with reference to embedding videos):"(1) don't embed videos that are obviously infringing, and (2) consider removing embedded videos once you've been notified by a copyright owner that they are infringing." Relatedly, you may be able to protect yourself against claims of contributory copyright infringement by complying with the notice-and-takedown procedures of the DMCA. For details, see Notice-and-Takedown.

Linking to Circumvention Technology Proscribed by the DMCA

Linking also raises legal issues in connection with the anti-circumvention provisions of the DMCA. Section 1201 of the DMCA makes it illegal to traffic in technology that enables others to circumvent technological measures put in place by copyright holders to control access to or uses of their copyright work. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. You can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. For example, one court has held that linking itself is not enough, and liability requires some more direct tie between the offending websites, such as receiving compensation in exchange for linking. See Comcast v. Hightech Elecs., Inc., 2004 WL 1718522 (N.D.Ill. July 29, 2004).

Given the uncertain state of the law, it is best not to knowingly link to sites hosting circumvention software. To be on the safe side, you should also remove user-generated content that links to such postings. This cautious approach may put websites that depend upon high levels of user interactivity in an uncomfortable position, as illustrated by the Digg.com user "revolt" in May 2007.

Getting Permission to Use the Work of Others

At some point you may want to use someone else's work. You should first determine whether the work is protected by copyright. Is the work copyrightable? Is it in the public domain? Is your use of the work barred by another area of the law such as trademark law? Keep in mind that a work doesn't have to have a copyright notice affixed to it to be covered by copyright.

Once you've gone through the above analysis and determined that the material you wish to use is protected by copyright, you should seek the copyright owner's permission to use the work. You will first need to identify the copyright owner, and then request permission for your specific use. If you are told that you cannot use the copyrighted work, this doesn't necessarily preclude you from using the work. You will not lose the ability to assert that your use is a "fair use" even if the copyright owner refuses to give you permission to use his work. For more on fair use, see the section on Fair Use in this guide.

1. Identifying the Copyright Owner

In many cases you will be able to quickly identify the copyright owner of the work. For some works, however, locating the copyright owner becomes an involved process. As you research, keep in mind that you may need to contact more than one person to get the necessary permission. For example, if the work you wish to use is the photograph of a person, you should seek permission from the copyright owner of the photograph as well as the person in the photograph if you will use the image of the person for commercial purposes, such as advertising. See the section on Rights of Publicity for more information on this issue.

You will likely find information about the copyright owner by searching several places:

Copyright Notice

First, examine whether the work contains a copyright notice. A copyright notice will have the copyright owner's name, which you can use to search for contact information. Note that if the work was first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. See the section on Works Not Covered By Copyright to learn more about this issue.

Author's Name

Check to see whether the work is attributed to an author. In some cases the author is also the copyright owner, but you should make sure that the author has the authority to exercise the exclusive right you wish to use--i.e. she has not licensed or transferred the exclusive rights, or that the author's creation is not a work-for-hire. If the author is not the copyright owner, she can tell you who commissioned the work or to whom she transferred ownership.

U.S. Copyright Office

Use the Copyright Office's catalog to search copyright records online for information about the copyright owner, or any change in ownership that has been recorded with the Office. The online catalog allows you to search through records dated after January 1, 1978. In order to search for older records, you will need to either visit the Copyright Office and search the Copyright Card Catalog yourself, or pay a fee for a Copyright Office employee to conduct a search for you. See Circular #23 for more details.

Search Engines

If the work is online and you are unable to find an author or contact information for the website owner, use Whois to search domain registrars for the website's registrant name and contact information.

Copyright Collectives

A copyright collective refers to an organization that licenses works on behalf of copyright holders. The most well-known copyright collectives license musical works and distribute the licensing fees to the copyright holders of the musical work. The three copyright collectives are ASCAP, BMI and SESAC. Similarly, you can turn to the Copyright Clearance Center or iCopyright to get licenses for published documents, such as articles from newspapers, magazines, books, journals, etc.

Although these collectives can streamline the request process for you, they often charge fees more suited to a large commercial operation. Consider visiting sites like CC Mixter for its musical works instead. See the discussion below on works covered by open content licenses.

As you conduct your research, refer to the Copyright Office's excellent resource on How to Investigate the Copyright Status of a Work.

2. Requesting Permission

Once you've identified the copyright owner, it is time to actually make your request. Often, an informal approach (by emailing or phoning the copyright owner) will work. If you opt for the informal route, be sure to follow up in writing. In many cases, misunderstandings arise over the scope of permission, and you can avoid such controversies by being explicit about how you wish to use the work.

Alternatively, you can go the formal route and send a letter to the copyright holder. In addition, if you need to contact a copyright collective to request a license, you should follow the procedures specific to their organization.

Your request should include:

• Your name and contact information
• Details identifying the work you wish to use (title, URL, etc.)
• The reason that you wish to use the work - for personal, research, commercial, commentary, criticism, review, or educational purposes
• How you intend to use the work - length of time, number of places (e.g. on your website, and your newsletter), etc.

For example, Jennifer Kyrnin at About.com, Indiana University-Purdue University's Copyright Management Center, and the University of Texas' Office of the General Counsel have sample letters that you can use to create your request.

3. Responses from Copyright Owners

If the copyright owner gives you permission to use her work, you are nearly done. Your last step should be to keep a record of how you found the owner, and a record of the permission that she gave you. As the Copyright Management Center at Indiana University notes: contact information will help you if you ever wish to get permission from the same owner in the future, and a record of the permission will assist you in the event that any future disagreements arise over the scope of the permission.

You should record:

• The name of work and any additional information (e.g., url, etc.)
• Copyright owner and contact information
• Author of work (if different from owner)
• Date you requested permission and a copy of your request
• Date the owner granted you permission, the conditions contained in the permission, and the expiration of permission
• How you actually used the work
• Any fees you paid to the copyright owner

If you cannot locate the copyright owner, or the copyright owner's response includes a large fee or a flat out denial, then your remaining options are:

Fair Use

Regardless of the copyright owner's response, you can still use the work if your use comports with the fair use doctrine. The doctrine of fair use makes it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarly works. Whether or not your use is lawful usually depends upon how different or "transformative" your use is from the original. Unfortunately, there is no clear formula to determine the boundaries of fair use. Refer to the section on fair use for a general discussion of the doctrine.

Link to the work

If the work is online, perhaps you can simply link to the work and still get your point across. If this is a viable option, refer to the section on Linking to Copyrighted Materials for the legal issues that may arise from linking to other online works.

Use Alternative Works

Another option is to find another work altogether. If you choose this route, you may wish to consider using works not covered by copyright or works that are covered by open content licenses, such as a Creative Commons license, so that you do not need to get explicit permission to use them. The following sites contain works covered by open content licenses:

• CC Mixter hosts a collection of music covered by the Creative Commons license. You can download and sample, remix and then share the results with "anyone, anywhere, anytime".
• Flickr allows its users to offer their work under a Creative Commons license. You can browse or search through the Flickr photographs under each type of license.
• Open Photo has a variety of stock photos that are licensed for free commercial and non-commercial use.

Circumventing Copyright Controls

You may come across digital works that contain copyright controls, such as digital rights management (DRM) technology or a software copy protection system. As a general matter, you should not circumvent these copyright controls, or you may face civil and criminal penalties under the Digital Millennium Copyright Act (DMCA).

Some copyright owners embed a form of DRM into their digital work in order to control its use and distribution. Typically, copyright controls come in two flavors:

1. access-control measures designed to keep you from accessing the work; and
2. copy-control measures that limit what you can do with the work after you have access (e.g., whether you can copy the work, how many copies can be made, how long you can have possesion of the work, and the like).

The DMCA prohibits circumventing access-control measures. 17 U.S.C. § 1201(a)(1). For example, if you cannot watch a particular copyrighted DVD on your laptop because of an encryption system, the DMCA makes it unlawful for you to bypass this access-control measure. Access-control measures may also be found on eBooks, Internet streaming platforms, and password-protected sections of websites, among other things. Note that there is no ban on the act of circumventing copy-control measures, but it is illegal for anyone to provide you with the technological tools to do so. In any event, some copyright holders merge access-control and copy-control measures in the same DRM system, making it impossible to circumvent copy-controls (which is not prohibited) without circumventing access-controls (which is prohibited).

The DMCA also prohibits trafficking in devices or tools that help other people circumvent access-control and copy-control measures. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. Beware: you can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. Nevertheless, it illustrates how risky it is to host or even link to devices or tools that enable others to break access- and copy-controls.

Fair use is not a defense to a prohibited act of circumvention or trafficking. It does not matter that you or someone else has to circumvent DRM in order to make fair use of a copyrighted work. This is one of the reasons that the DMCA is so controversial.

There are, however, several exemptions built into the DMCA that permit the circumvention of access- and copy-control measures for limited purposes or the limited distribution of circumvention tools in particular circumstances. In addition, the DMCA directs the Librarian of Congress, upon the recommendation of the Register of Copyrights, to publish a list of classes of works to be exempted from the anti-circumvention provisions of the DMCA. The Librarian makes the determination of which classes of works to exempt based on a determination, made pursuant to a complex rule-making process, that fair use of a particular class of works is likely to be adversely affected by the anti-circumvention provisions of the law. The best known current exemption is for "computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network." Memorandum of Librarian of Congress on 1201 Recommendations. This exemption apparently allows cell phone users to "unlock" their phones for use with other carriers, so long as this is the only motivation. The impact of the cell phone companies' user agreements on this exemption is still uncertain. For more on the story, see Wired's Legal or Not, IPhone Hacks Might Spur a Revolution.

The DMCA is complicated, and this page gives just a brief summary of the anti-circumvention and anti-trafficking provisions. For more detailed analysis, see the Chilling Effects FAQ about Anticircumvention and The Internet Law Treatise.

Copyright Infringement

It is a widely held misconception that works on the Internet are not covered by copyright and thus can be used freely. This is not true. Copyright law applies to online material just as it does to offline material, assuming the prerequisites for copyright protection are met. Thus, if you use someone else's work, you could be liable for what is called "copyright infringement." Basically, copyright infringement exists if you exercise one or more of the exclusive rights held by a copyright owner. A copyright owner enjoys the following exclusive rights:

• to reproduce the work in copies
• to prepare derivative works based upon the work
• to distribute copies of the work to the public
• to perform the work
• to display the copyrighted work
• and, in the case of sound recordings, to perform the work publicly by means of a digital audio transmission

See Rights Granted Under Copyright for more discussion.

In order to bring a successful claim of copyright infringement in the context of copying on a blog or website, the plaintiff must generally prove:

1. That she is the owner of a valid copyright in the work or has the legal authority to bring a lawsuit;
2. That the defendant actually copied the copyrighted work, either by direct evidence of the copying or evidence that shows: (a) the defendant had access to the original work and the defendant's work is substantially similar to the copyrighted work, or (b) the defendant's work has a striking similarity to the copyrighted work; and
3. The copied sections of the work are protected by copyright (i.e. not merely copying facts from the copyrighted work)

If the defendant is found liable for copyright infringement, the copyright holder will be entitled to recover his or her actual damages (e.g., lost profits) or, if certain conditions are met, statutory damages between $750 to $30,000 per infringement.  If the plaintiff can prove the infringement was willful, the statutory damages may be as high as $150,000 per infringement. 

Defenses

There are three common defenses available to defendants who are faced with a copyright infringement claim:

• The work used is not covered by copyright (i.e. characterize the work as being factual only, without any expressive element).


• The defendant independently created the work herself. As discussed above, any claim of infringement must involve the defendant's use of an unauthorized copy of the plaintiff's work. Thus, infringement cannot occur in the absence of the defendant's copying the plaintiff's work. Additionally, no provision of copyright law bars another author from independently creating a work that is remarkably similar to another.


• The use is a fair use. The doctrine of fair use is the third, and most oft-cited, defense. The courts and Congress adopted the fair use doctrine to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you. Refer to our section on fair use for a more in-depth discussion on the doctrine.

Note that the infringing use of a copyrighted work cannot be cured by attribution (i.e. citing the copyrighted work). While citing to the original source is always a good idea, attribution will not protect you from a claim of copyright infringement.

Copyright v. Plagiarism

Plagiarism is the act of using another's work and passing it off as your own. While such a use could open you up to a copyright infringement claim, there is no legal liability associated with the act of plagiarism.

Nevertheless, it is a good idea to avoid plagiarism. The best way to avoid plagiarism is to adequately cite your work. Depending on the nature of your online work, your citations can be informal in style, or adhere to the more formal citation conventions. See the University of Iowa's Guide to Citation Style Guides, and Yale College's guide to citing blogs for more information.

Since plagiarism and copyright infringement are similar concepts, a few examples may be helpful:

• If an author publishes a poem on his blog in which he substantially copies from Dante's Inferno but passes off the words as his own, he has committed plagiarism. However, the author has not committed copyright infringement because Dante's work is in the public domain.
• In contrast, if a website owner publishes a compilation of contemporary short stories on her website without the permission of the original authors, she would be liable for copyright infringement, even if the compilation properly notes the original authors and thus avoids plagiarism.
• Finally, if a journalist uses content from yesterday's daily newspaper as his own original article in a weekly online magazine, the journalist has committed both plagiarism and copyright infringement.