January 2012
The Educator’s Guide to Copyright
Little Buffalo Law & Consulting
Little Buffalo Law & Consulting
What is copyright?
Copyright law protects original works of authorship
fixed in a tangible medium of expression. Ideas and
concepts cannot be protected by copyright. To be protected by copyright, a work must contain at least a
certain minimum amount of authorship in the form of
original literary, musical, pictorial, or graphic expression. Names, titles, and other short phrases do not
meet these requirements.
Original works of authorship include the following:
Copyright defined:
Copyright law protects original works of authorship fixed
in a tangible medium of expression.
·
Literary works
·
Musical works, including any accompanying
words
·
Inside this handout:
Copyright notices
2
Copyright registration
2-3
Works made for hire
4
Licensing use of your
5
copyrighted works
Faculty created works
6
TEACH Act
7
Public domain
8
Fair use and obtaining permissions
9
Supplementing course materials
10
Dramatic works, including any accompanying
music
·
Pantomimes and choreographic works
·
Pictorial, graphic and sculptural works
·
Motion pictures and other audiovisual works
·
Sound recordings
·
Architectural works
What rights do copyright owners enjoy?

the right to reproduce their work

the right to distribute their work

the right to create
derivative works

the right to publicly
display their work

the right to publicly
perform their work.

in the case of
sound recordings,
the right to publicly
perform the work
by means of a digital audio transmission.
Copyright protection is automatic
No publication or registration or other action in the Copyright Office is required to secure copyright. For works published on and
after March 1, 1989, copyright is secured automatically when the
work is created (even if the © symbol is not affixed to the work). Be
aware, though, that although the use of the copyright symbol is no
longer required, it sometimes is beneficial. Use of the notice informs the public that the work is protected by copyright, identifies
the copyright owner, and shows the first year of publication.
Page 2
The Educator’s Guide to Copyright
Copyright notices
Copyright notices have
three components:
1. The symbol © (the
letter C in a circle), or
the word "Copyright," or
the abbreviation "Copr.";
The copyright symbol
2. The year of first
publication of the work;
and
3. The name of the
owner of copyright in
the work, (which includes an abbreviation
by which the name can
be recognized, or a generally known alternative
designation of the
owner).
For example:
© 2012 John Doe
The "C in a circle" notice
is used only on "visually
perceptible copies." For
musical, dramatic, and
literary works whose
copies actually are
sound or audio recordings, use the letter
“P” in a circle.
Although a copyright
notice is not required, in
the case of infringement,
if the work carries a
proper notice, courts
will not give any weight
to a defendant’s argument that the infringement was innocent.
Registering a copyright
“Registration
may be made at
any time within
the life of the
copyright.”
Copyright Office
fees
Please note, Copyright
Office fees are subject
to change. For current fees, check the
copyright website at
www.copyright.gov,
write the Copyright
Office, or call (202)
707-3000.
In general, copyright
registration is a legal
formality intended to
make a public record of
the basic facts of a particular copyright. Registration is not a condition of copyright protection.
Registration does provide some advantages,
though. Registration establishes a public record
of the copyright claim.
Registration also allows
an injured party to recover statutory damages
and attorney's fees if
infringement is proved
in a court of law.
(Absent registration, recovery is limited to an
award of actual damages.)
Registration may be made
at any time within the life
of the copyright.
Basic Registrations (Fee to accompany an application and deposit for registration of a claim to copyright as of March 2011.)
Form TX or Short Form TX
$35/65
Form VA or Short Form VA
$35/65
Form PA or Short Form PA
$35/65
Form SE or Short Form SE
$35/65
Form SR
$35/65
Form GATT
$35/65
Form GR/CP (this form is an adjunct to
Forms VA, PA, and TX)
No additional charge
January 2012
Page 3
Registering works—electronic copyright office
The electronic copyright office at www.copyright.gov allows easy registration of lesson
plans, manuscripts, classroom activities, and other original material:
Advantages include:

Lower filing fee of $35 for a basic claim (for online filings only)

Fastest processing time

Online status tracking
Circulars,
announcements,
regulations, other
related materials,
and all copyright
application forms
are available via the
Internet:
www.copyright.gov

Secure payment by credit or debit card, electronic check, or Copyright Office deposit account

The ability to upload certain categories of deposits directly into eCO as electronic files.

Available 24 hours a day, except for routine maintenance every Sunday from 12:00 midnight to 6:00
AM Eastern Time
Paper versions of Form TX (literary works); Form VA (visual arts works); Form PA (performing arts works,
including motion pictures); Form SR (sound recordings); and Form SE (single serials) are still available. The
fee for a basic registration using one of these forms is $65 payable by check or money order.
Names, titles, and short phrases or expressions are not
subject to copyright protection. Even if a name, title, or short
phrase is novel or distinctive or if it lends itself to a play on
words, it cannot be protected by copyright. However, some
brand names, trade names, slogans, and phrases may be entitled to protection under the general rules of law relating to unfair competition, or they may be entitled to protection and registration under the provisions of state or federal trademark laws.
The name “Sherlock Holmes”
is protected by trademark law.
Page 4
The Educator’s Guide to Copyright
Works made for hire
Copyright law defines
“works made for hire” as
follows:
1. Works prepared by an
employee within the scope
of the employee’s employment; or
“The „work for hire‟
agreement actually
transfers the copyright
from the author to the
entity, unless there
is a written agreement to the contrary signed by both
parties.”
2. Where works are specially ordered or commissioned and the parties
expressly agree in a
signed, written instrument that the works are
made for hire, including
the following: a contribution to a collective work; a
part of a motion picture or
other audiovisual work; a
translation; a supplementary work; a compilation;
an instructional text; a
test; answer material for a
test; an atlas.
Transfer of copyright
When an author signs a
“work for hire” agreement,
the author transfers all
rights to the work. The
entity for whom the author
works has the right to
copy, distribute, modify,
publish, and even re-sell
the work. The “work for
hire” agreement actually
transfers the copyright
from the author to the entity, unless there is a written agreement to the
contrary signed by both
parties.
made.
Term of copyright
The term of copyright protection of a “work made for
hire” is 95 years from the
date of publication or 120
years from the date of creation, whichever expires
first. (A work not “made for
hire” is ordinarily protected
by copyright for the life of
the author plus 70 years.)
Individuals who enter into
such an agreement must
substantially modify any
work sold as a “work made
for hire” before they can
sell the work again. It is
not sufficient to just reformat the work or change
a few words. The work
must be modified sufficiently to avoid a claim of
infringement by the entity
for whom the work was
Transferring copyright
Minors and copyright
Minors may claim copyright, but state laws
may regulate the business dealings involving
copyrights owned by
minors, including a minor’s right to enter into
a contract.
Transfers of copyright generally are made by contract. In fact, the transfer
of exclusive rights is not
valid unless the transfer is
in writing and signed by
the owner of the copyright
or his/her authorized
agent. Transfer of a copyright on a non-exclusive
basis (e.g. granting permis-
sion for one-time use in a
publication or granting
permission to a teacher
who asks if she can copy
and distribute student authored poems to her high
school literature class),
does not require a written
agreement.
Copyright may also be
transferred as a part of the
copyright owner’s estate
upon death.
January 2012
Page 5
Licensing use of copyrighted works
Copyright owners control the use of their copyrighted work. No one other than the copyright owner may copy,
print, or distribute the work; publicly perform the work; or create derivative works from the work without permission from the copyright owner. Copyright is unique, however, in that it is a divisible right. (It is more like
a bundle of rights than a single right.) Copyright owners may allow others to use their works either by granting permission for such use or licensing (charging a fee for) such use. Below is a sampling of the types of
agreements schools, colleges, and universities may enter into with faculty, staff, and third parties.
Type of Agreement
Purpose of Agreement
Comments
Sponsorship Agreements
Written agreements between a sponsor
and a school, college or university. These
agreements may include multiple parties,
including faculty who participate in the
creation of copyrighted works.
Copyright ownership is commonly delineated/restricted in these agreements.
Collaboration Agreements
Collaboration agreements are used when
schools, colleges or universities participate
in projects with other outside persons or
organizations to meet identified student,
citizen, community, and industry needs.
Agreements regarding the ownership of
copyright and other intellectual property in
the created works, including work by participating faculty and staff, are incorporated
into these agreements.
Equitable Distributions
Equitable distributions result when schools,
colleges or universities execute agreements with individuals, corporations, or
other entities outside the school district for
economic gain using intellectual property
owned by the college or university.
The proceeds of the equity distribution are
shared among the creators of the work,
which may include participating faculty and
staff, in accordance with the specific terms
of the equity distribution agreements.
Special Commissions
When schools, colleges or universities spe- These agreements must be in writing.
cially commission work from faculty or staff,
and such works are identified by the
school, college or university as specially
commissioned at the time the works are
commissioned, the copyright and other
intellectual property rights in the work belong to the school, college or university.
Post –creation assignments of copyright
Faculty and staff may agree to assign some
or all of their intellectual property rights to
a school, college or university. Similarly, a
school, college or university may assign
some or all of its rights in a work to any
person or entity, including the faculty and
staff who helped create it.
Parties to these agreements commonly
reserve some rights for themselves (e.g. a
royalty free, irrevocable license to use and
copy the work; the right to share in proceeds from the commercialization of the
assigned work). These agreements must be
in writing.
Page 6
The Educator’s Guide to Copyright
Faculty Created Work and MnSCU Board Policy 3.26—an example of one higher ed
system’s approach to faculty created work.
January 2012
Page 7
The TEACH Act
The Technology, Educational and Copyright Harmonization Act (TEACH
Act) passed in 2002 is a
revision to the section of
copyright law that deals
with the performance and
display of copyright protected works in distance
education settings. It was
intended to bring the distance education rules relating to the performance,
showing and display of
copyrighted works more
into line with the rules for
face-to-face classroom
instruction. Although the
TEACH Act provides
some expanded opportunities for educators in
distance education settings, restrictions still
abound and many educators find themselves relying on the more estab-
lished “fair use” rules to
guide them in their decisions about when it is appropriate to use another’s
work.
Frequently asked questions about the TEACH Act
What is the TEACH Act and
how does it apply to me?
The TEACH Act is the name
given to the law that revised
the educational performance
and display exemptions of the
copyright law. It applies to
educators involved in all forms
course has concluded.
How has the TEACH Act
changed copyright law?
The TEACH Act allows educators to deliver more materials
electronically than was allowed
could show the entire movie to
class time instruction, as op-
students in a face-to-face set-
posed to activities educators
ting.
might assign as part of the
What other restrictions are
placed on performance,
showing and display?
under the old law. For exam-
A number of restrictions gov-
ple, under the TEACH Act,
ern the electronic delivery of
students’ work outside of
class. Educators may not
electronically deliver works
for student viewing outside
of regular classroom time
Does the TEACH Act apply
education may perform a dra-
(unless making the works
these works. These include the available to the students
condition that the performance qualifies as “fair use” ). Fac-
to all educational settings?
matic reading of a short story
or display of the work be made
of distance education.
No. The TEACH Act applies
only to accredited non-profit
educational institutions that
have policies on the use of
copyrighted materials. The
institutions also must have
technology in place that will
reasonably prevent the recipients of transmitted material
from distributing the material
or retaining the material after a
educators involved in distance
can with students in a face-to-
ulty members should conby, at the direction of, or under sider the market impact of
the actual supervision of an
making materials available
face setting. The Act only
instructor as an integral part of
electronically for students. If
allows for the display of
a class session.
making the materials available
The TEACH Act refers to
electronically eliminates the
“systematic mediated in-
need for students to purchase
structional activities,” what
the materials, problems may
does that mean?
arise under the TEACH Act
for their students, just as they
“reasonable and limited portions” of dramatic works,
though. Educators may not
show an entire movie to their
remote students even if it is
directly related to course con-
This refers to the activities
tent and even though they
educators would engage in
during the course of actual
and copyright law, generally.
Page 8
The Educator’s Guide to Copyright
Public Domain
Certain works are not eligible for
copyright protection. These works
are considered to be in the “public
domain.” There are no copyright
restrictions on the use, photocopy
ing, and reproduction of these
works (unless the work is otherwise protected, as in the case of
trademark, for example). Works in
the public domain include works
that never were copyrightable, as
well as works for which the copyright has expired and include the
following:


Government publications.
Works prepared by an officer
or an employee of the U.S. government as a part of that person’s official duty are not copyrightable.
Non-copyrightable works.
Works not fixed in a tangible
medium of expression or that
employ less than “minimal creativity” are not copyrightable.
Copyright protection does not
apply to slogans, titles, or character names.
Works excluded from protection by statute. Sometimes,
copyrighted works may be used
without permission because the
particular use being made of
them falls within a statutory
exception to the copyright
law, such as “fair use.”

Works for which copyright
protection has expired.
The duration of copyright
protection for any particular
work depends on the law in
effect at the time of the
work’s creation (see the
chart below). The only sure
rule of thumb is that all
works published before 1923
are in the public domain.
When copyrighted works pass into the public domain
Date of Work
Conditions
Term
Published before 1923
None
In the public domain.
Published from 1923 through
1963
When published with notice
28 years + could be renewed for 47
years, now extended by 20 years
for a total renewal of 67 years. If
not so renewed, in the public domain
Published from 1964 through
1977
When published with notice
28 years for first term; now automatic extension of 67 years for
second term.
Created before 1/1/1978, but not
published (or published without a
copyright notice)
1/1/1978, the effective date of the
1976 Act that eliminated common
law copyright
Life + 70 years or 12/31/2002,
whichever is later.
Created before 1/1/1978, but
published between then and
12/31/2002
1/1/1978, the effective date of the
1976 Act that eliminated common
law copyright
Life + 70 years or 12/31/2047,
whichever is later.
Created 1/1/1978 or after
When work is fixed in tangible medium expression
Life + 70 years (or if corporate authorship, the shorter of 95 years
from publication or 120 years from
creation).
Based on a chart by Lolly Gasaway, University of North Carolina at www.unc.edu/~unclng/public-d.htm
January 2012
Page 9
Obtaining permission to use another’s work
When requesting permission to use a copyrighted work,
it is important to clearly describe the manner in which
you intend to use the work. The more information you
provide for the owner’s consideration, the more likely
the owner will be to grant permission.
1. Describe your audience: How many copies will you
make? Who will receive the copies? How will you
limit others from accessing the work? (e.g. if you are
posting on a website, is the website password protected?)
2. Describe the work you want to use: What specifically do you want to use? (e.g., the title of the work;
date of publication, etc.) How much of the work do you
want to use? If you intend to use only a portion of the
work, describe the portion.
4. Describe why you want to use the work:
Why is it important to use this particular
work? Is your purpose commercial, nonprofit, or educational?
5. Describe how and where you want to use
the work: How and where will the work be
used? (e.g. if you want to use someone’s
work in an article you are writing, where will
the article be published?) Information
about how and where the work will be used
factors heavily into an owner’s determination about whether to grant permission.
6. Accommodate the owner. Provide the
owner with information about how to reach
you if questions should arise and be prepared to abide by the owner’s use restrictions. Honor the owner’s requests regarding
the size and placement of the credit line.
3. Describe when and how long you want to use the
work: Do you intend to use the work only briefly or
are you seeking continuing permission to use the work
for a longer period of time? If you want to use the
work for a specific period of time, delineate the time
period. Permission fees generally are tied directly to
the length of time you want to use the work.
When you can’t get permission
If you cannot get permission to
use a work, limit your use of the
work to “fair use” or use an alternative work in its place for
which you can get permission.
The “fair use” exception to copyright
The “fair use” exception to copyright law allows you to use someone else’s copyrighted work in limited instances without the permission of the copyright owner. In
determining whether your use
qualifies as a “fair use,” four factors
must be evaluated:
1.
Your purpose or reason for
using the work (non-profit,
teaching, and research uses
are allowed more frequently
than commercial uses);
2.
The nature or characteristics
of the work you want to use
(the use of factual, historic, or
scientific works is favored over
the use of fictional and other
highly creative works);
3.
4.
The amount and substantiality of the portion of the work
you want to use (this requires
an evaluation of the quality
and the quantity of the work
you want to use, not a straight
word count. Steer away from
using large portions of a work
or portions of the work that are
considered key or central to
the work); and
The effect of your use of the
work on the marketability or
value of the work. (If your use
negatively affects the sale or
value of the work, it is not
likely to be viewed as “fair
use.”)
Applying the four factors can be
difficult. Unfortunately, copyright
law does not provide hard-and-fast
rules. The four factors are intentionally flexible so they can be applied to all different types of copyrighted works.
Supplementing course materials—
avoiding infringement
1. Public domain materials
2. Low cost or royalty free materials
3. Materials from Learning Object Repositories (LORs)
e.g. MERLOT http://www.merlot.org/merlot/index.htm
4. Open CourseWare materials e.g. MIT OCW
http://ocw.mit.edu/OcwWeb/web/home/home/index
.htm
Copyright basics online
United States Copyright website:
http://www.copyright.gov
The campus guide to copyright compliance:
http://www.copyright.com/Services/copyrightonc
ampus/basics/index.html
MnSCU Academic and Student Affairs—
Intellectual Property:
http://www.intellectualproperty.mnscu.edu/
University of Maryland Copyright Primer:
http://www-apps.umuc.edu/primer/enter.php
5. Creative Commons materials
http://creativecommons.org
6. Obtaining permission from copyright owner (which
can include licenses and subscriptions)
Copyright and the internet
Creators of original works do not lose their
copyright protection simply because a work
appears on the Internet. Works in the
electronic environment, such as articles, poems,
photographs, clip art, animation, web pages,
and other such material generally are entitled to
the same copyright protection as printed work.
As with printed work, copyright protection for
electronic work exists from the moment of
creation and fixation in a tangible manner.
Copyright for Educators
Aimee Bissonette, JD
Copyright for Educators by Aimee M. Bissonette is licensed under a Creative
Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.
Based on a work at www.littlebuffalolaw.com.
Permissions beyond the scope of this license may be available at
www.littlebuffalolaw.com.
Little Buffalo Law & Consulting
www.littlebuffalolaw.com
Phone: 612-243-5013