Copyright: Who, Where, How, Why, When And How?
In a recent legal matter involving the Colorado Master Gardener logo, an original piece of art was purchased from an online clip art company by a former graphic designer at Colorado State University. Included in the purchase was an agreement to use the art for specific uses, however the use agreement was not communicated to Extension. In light of this situation, it seems appropriate to address the issue of copyright and the rights surrounding original art and expression.
What is a copyright?
By legal definition, a copyright is the exclusive right to reproduce, distribute, modify, perform or display publically a graphic, literary, musical or artistic work. A copyright exists at the time a work is created, however to discourage people from using an original work, a correct copyright notice should be used at first printing.
Example: © Colorado State University Extension 2002.
Where can I find out more about copyright laws?
For more information on the Copyright Act of 1976, and further amendments, see: www.loc.gov/copyright/title17/92preface.html
The Copyright Act of 1976 granted copyright owners exclusive right to reproduce their works. However, works not protected by copyright are those created or funded by the federal government and works published more than 75 years ago that are no longer protected by the Copyright Act and considered public domain. You cannot obtain a copyright for facts and ideas, but an author can get a copyright for the manner in which he or she expressed a fact or idea. For example, no one owns the life story of Abraham Lincoln, but a published biography of Lincoln can receive a copyright.
How can I protect my original work?
Even though a copyright exists at the time a work is created, it can be difficult to protect a copyright should you ever decide to prove copyright infringement. A formal registration of a copyright is necessary to enforce rights and provide additional benefits. Without the formal registration, you will enter a gray area of the law.
The U.S. Library of Congress registers copyrights, trademarks or patents (www.loc.gov/copyright). Although the registration fee is only $30 per work, a search of existing work must be made on the item requesting a copyright and the cost for a search is anywhere from $295 to $1,195.
Who owns a copyright?
The author/creator, his or her employer, or the publisher (of a published work) may own the copyright. At Colorado State University, works created with University resources by University faculty or staff while employed by Colorado State University belong to the University and the University owns the copyright (see Section J of Academic Faculty and Administrative Professional Manual).
Are there any exceptions to the law?
A copyright is infringed when the exclusive rights of the copyright holder are violated. However, in an effort to balance the author’s rights with the public’s need for information, there are certain infringements that the copyright law excuses under the doctrine of “fair use.” In an effort to define fair use, the copyright law provides a four-factor test.
Factor 1. Is the use for the purpose of science, education or research? If this factor is established, the burden of proof shifts to the plaintiff to prove that the use was not fair.
Factor 2. Is the copyrighted work published or unpublished, fact or fiction? It is more difficult to establish fair use of an unpublished work than a published work because it is presumed that the copyright owner is concerned with how the work is first presented to the public and may not want the work published at all.
Factor 3. Is the amount copied a substantial part of the original work? The amount, whether it be one sentence or one chapter, doesn’t matter as much as whether or not the part copied was of “critical importance to the work as a whole and copied in order to save the time and expense incurred by the copyright holder.”
Factor 4. Does the copyright impair the market for, or value of, the copied work? If it does, the copying is probably not fair use (Kinko’s case.) Look for more information on fair use in future issues of this newsletter.
How do I get copyright permission?
If the item you want to reproduce doesn’t fall under fair use, then you must obtain permission to make a copy. When requesting permission to use an original work, it’s good to have your request documented in a letter of request. In the letter of request, include the following items.
- Title, author and/or editor, and edition of materials to be duplicated.
- Exact material to be used. Give amount, page numbers, chapters, and if possible, a photocopy of material.
- Number of copies to be made.
- Use to be made of duplicated materials.
- Form of distribution (classroom, newsletter, etc.)
- Whether or not the materials will be sold.
- Type of reprint (copy machine, photography, offset print method, typeset).
What if I want to use someone else’s information as a handout in a class or workshop?
As part of the land-grant mission, it’s not uncommon for an agent or specialist to use published research in a class or workshop. In the Copyright Act of 1976, there are provisions for classroom copying in not-for-profit educational institutions. Single copies may be made for classroom use of: chapter of a book, an article from a book or periodical or newspaper, a short story, essay or short poem, charts, graphs, diagrams, drawing, cartoons, picture from a book, periodical or newspaper. If you make more than one copy of the above, each copy must include the copyright notice (©). For more information on this guideline and others that pertain to ‘Educational Fair Use’ copying, see: www.loc.gov/copyright/circs/circ21.pdf
If you do take original work, other than your own, to a quick copy center, don’t be surprised if the copy center refuses to make any copies without written permission from the original source.
In 1991, a lawsuit involving Kinko’s and eight publishers changed the way today’s quick copy centers do business. The case involved a collection of articles taken from various books, copied by Kinko’s without permission and sold to students at New York University and Columbia University for classroom use. Although Kinko’s claimed Educational Fair Use, the final decision of the court found that three of the four fair-use factors were violated and the copying was ruled as unlawful (1, 3 and 4).
Other Facts
RECIPES cannot be copyrighted. According to the U.S. Copyright Office, a listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Photos or illustrations that accompany a recipe are protected by copyright. www.loc.gov/copyright/fls/fl122.pdf
CARTOONS MUST NOT be reproduced in a newsletter unless you have permission from the source.
WEB PAGES and Web content are copyrighted. Do not copy, download or cut-and-paste any item for use in another printed piece without permission.
Sources:
Copyright Guidelines for Classroom and General University Use, Colorado State University, 1996; U.S. Copyright Office Library of Congress, www.loc.gov/copyright; T. Hemnes & A. Pyle, 1992; A guide to copyright issues in higher education. National Association of College and University Attorneys: Washington D.C.
For more information:
For more information, contact the Communications and Technology staff.
