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Copyright and Fair Use


  • What is Copyright?
  • Does a work have to have a  copyright mark on it to have a copyright?
  • We are an educational institution,  doesn’t that mean we can use anything?
  • If it’s on the web, it’s free to  use, isn’t it? (YouTube, Google Images, etc.)
  • How can I tell if something is  public domain?
  • What is the Creative Commons?
  • Everyone else is using it, why  can’t I?
  • How do I get permission to use a  copyrighted work?
  • What is the penalty if I use  something without a license?
  • What are the differences between copyright, patents and trademarks?

To begin: a very clear copyright overview for distance education classes can be found at:  (This is the statement on copyright and  distance education from the Register of Copyright. (This one includes a Fair Use Checklist)

What is copyright?

Copyright is a form of protection grounded in the U.S.  Constitution and granted by law for original works of authorship fixed in a  tangible medium of expression. Copyright covers both published and unpublished  works.

U.S. Constitution, article 1, section 8, clause 8:
“The Congress shall have power…To 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.”

Does a work have to have the copyright notice on  the item in order for it to be copyrighted?

No.  As soon as a work is fixed in  a tangible form or expression it is copyrighted.

Doesn’t the fact that we’re in education give us  more leeway in using things that have a copyright?

Yes, but the fair use guidelines must still  be followed.  Educational use is only one of four factors to be considered. (Outside of the non-profit face-to-face  classroom environment, the Classroom Use Exemption doesn't apply, so  non-classroom use of audio and video such as in online instruction, at  conferences, in school meetings, etc. - may be allowed, but you have to think  about it through the lens of fair  use.)

If it’s on the web, it’s free to use.

No.   Even something published on the web is in a tangible expression and therefor copyrighted.

If  a published work is in the Public Domain it means that it belongs to the public and is free to use.

Public Domain items  include:

works  whose copyright has expired,
those  that never had a copyright and
works  created by the U.S. government.


The  U.S. Constitution is in the public domain, but Westlaw’s KeyCite and Key Number system is copyrighted by West.    
Shakespeare’s  plays are in the public domain, but a book about the plays published last year may still be protected under copyright.    
Stock photographs are copyright protected, but millions of images from the British library at have been released to public domain.

What is the Creative Commons?  What is Open Access? Many  materials are becoming available to read and re-use through Open Access  Initiatives or Creative Commons Licenses, or  


[Creative Commons]
 The Copyright Crash Course is licensed under a Creative Commons  Attribution 3.0 United States License

“What is Creative Commons?"

Creative Commons is a nonprofit organization that enables the sharing and  use of creativity and knowledge through free legal tools.


[Their] free, easy-to-use copyright licenses provide a simple, standardized way to give the public permission to share  and use your creative work — on conditions of your choice. CC licenses let you  easily change your copyright terms from the default of “all rights reserved” to  “some  rights reserved.”


Creative Commons licenses are not an alternative to copyright. They  work alongside copyright and enable you to modify your copyright  terms to best suit your needs.” “What is Creative Commons”    cc by 4.0

Finding Creative Commons resources:

What are Open Educational Resources?

OER defined: OER  are teaching, learning, and research resources that reside in the public domain  or have been released under an intellectual property license that permits their  free use and re-purposing by others. Open educational resources include full  courses, course materials, modules, textbooks, streaming videos, tests,  software, and any other tools, materials, or techniques used to support access  to knowledge       Where  can I find OER materials?

What are Open Access Resources?

“Open-access (OA) literature is  peer reviewed, digital, online, free of charge, and free of most copyright and  licensing restrictions. What makes it possible is the internet and the consent  of the author or copyright-holder.”  (Suber,  2004) Although the definition doesn’t say scholarly, that is mostly the kind of  resources that are found as Open Access.   They may also include items with Creative Commons licenses or other  kinds of use restrictions.

Finding Open Access Resources:  there are many places for open access  resources:

Directory  of Open Access Journals:
Directory  of Open Access Books:
Directory  of Open Access Repositories

How can I tell if a work is in the Public Domain?

The digital slider, below, can help you  determine if what you want to use is fair use or not:

Everyone else is using it, why can’t I?  

Unless you can find the copyright owner  officially stating that it is free to be used, or you have received or paid for  use yourself, it is safer to use something else.  In particular, the music industry and video  industry are more and more invested in prosecuting copyright infringers. If you  do get permission, make sure it is in writing, and that you save it.  

What about getting music from YouTube to use in  my video?  

If someone else owns the  copyright to the music, you have to get permission before you can use it.  See  for a helpful explanation.  Also, see the explanation of using something  everyone else is in this Pharrel  Williams discussion.

How do I get permission?  

(Talk to one of the librarians if you need  help.)  The  basic rule is to find the copyright owner and ask for permission.  Finding & contacting the copyright owner,  though, can quickly become confusing. The sources below can make the search for  permissions a little easier:

Permissions often (but not always) can be  cleared by the Copyright Clearance Center ( ).

Finding copyright permission for music can often  be found through:

For permission to use music sound recordings, contact the Harry Fox Agency:

For movie clips  (sources and permissions)

Video clips:

Find  the name of the producer
Try IMDB   (Internet Movie Database)
Contactt FOCAL international (Federation  of Commercial Audiovisual Libraries International)

If you know who owns the copyright  (publisher, author, etc.) you may be able to contact them directly.  For example, Columbia Records, owned by Sony,  has a site where permissions by individual song can be requested.  (You do have to register.)

Images:   Flickr, YouTube and Google Images make finding free to use images and  video a little easier.  (Sometimes,  even,  you can just add “creative  commons” to your search term.)



Contact the creator, or          
Find ones that you can use by  using YouTube filters.  (You only see the  filters after you’ve done a search.)        
Once  you’ve done the search and clicked on the word FILTERS, choose Creative Commons  as the filter, and you’ll get clips that are free to reuse.                  

Google  Images:        

Contact  the creator or        
Use  the Search tools and choose Usage Rights (after you’ve searched for an image).

[Google Usage Rights Search]

These are the Usage rights that Google can use to sort the images:

[Google Usage Rights options]    

What is the penalty?

A  copyright infringement case could result in a cost from $750 to $30,000 for  each incident of infringement.  If the  court decides that the infringement was willful, then it can assign up to  $150,000 more.
In a copyright infringement case, everyone involved in the copying could be held  liable:  for example, the professor who  requested the copying, the person who took it to the copy shop, the copy shop  for making the copies. It doesn’t mean that those additional people would need  to know that infringement was happening.   They would simply need to know that copies were being made.
Even if the case was won (showing that you didn’t infringe) the legal costs could be  enormous.

(Lindsey, 2003)

What are the differences between copyright, patents and trademarks? 

The U.S. Patent and Trademarks Office at .
  Differences: (
  Copyright:  “Copyright is a form of protection provided to the authors  of "original works of authorship" including literary, dramatic,  musical, artistic, and certain other intellectual works, both published and  unpublished…The copyright protects the form of expression rather than the  subject matter of the writing.”
  An  example:  “a description of a machine  could be copyrighted, but this would only prevent others from copying the  description; it would not prevent others from writing a description of their  own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
  Trademarks:   “A trademark is a word, name, symbol, or device that is used in trade  with goods to indicate the source of the goods and to distinguish them from the  goods of others… A trademark is a word, name, symbol, or device that is used in  trade with goods to indicate the source of the goods and to distinguish them  from the goods of others.
  Trademark  rights may be used to prevent others from using a confusingly similar mark, but  not to prevent others from making the same goods or from selling the same goods  or services under a clearly different mark.”
  Patents: “any person who “invents or discovers any new and  useful process, machine, manufacture, or composition of matter, or any new and  useful improvement thereof, may obtain a patent,” subject to the conditions and  requirements of the law.

“Interpretations of  the statute by the courts have defined the limits of the field of subject  matter that can be patented, thus it has been held that the laws of nature, physical  phenomena, and abstract ideas are not patentable subject matter.

“A patent cannot be  obtained upon a mere idea or suggestion. The patent is granted upon the new  machine, manufacture, etc., as has been said, and not upon the idea or  suggestion of the new machine. A complete description of the actual machine or  other subject matter for which a patent is sought is required.”

(The above information comes from (

There are at least three excellent resources for patent and  trademark Information:

The United States       Patent and Trademark Office has many resources to help with the patent and       trademark process:,       including: 

Patent and Trademark Attorney/Agent Listing   
IP Assessment Tool at USPTO   
United States Patent and Trademark Office   
Patents in Full-Text   
USPC Classification Index   
Official Gazettes for Patents

Edmon Low Library at Oklahoma State  University:

University of Michigan Library:

  Creative Commons  (2015) About Creative Commons Retrieved July 14, 2015 from

Lindsey, Marc  (2003). Copyright infringements lawsuits. Copyright Law on Campus. Pullman, Washington: Washington State University  Press.

Suber, Peter. (2004). A very brief introduction to open access.  Retrieved July 14, 2015 from

NOTE: The content of these pages are to provide general information about copyright in the college environment.  They are not intended as legal advice.  Legal advice must be provided in the course of an attorney-client relationship that specifically focuses on all the facts of the particular situation for which legal advice is sought.  You must not use the information presented here as a substitute for a licensed attorney.


When, exactly, is something “created” in terms of copyright?  What is a “derivative work”?  What is the difference between a compilation and a collective work?  Copyright law has definitions of what it means when it says any of those things (and more) in 17 U.S. Code § 101.  You can find that at either of the two sites below:

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