Copyright Guide
The Brandeis Library is committed to full compliance with the laws governing the use of copyrighted material for academic purposes. Compliance with the copyright laws, including the doctrine of fair use, promotes progress in the arts and sciences and helps the University to fulfill its academic mission. This guide does not supply legal advice nor is it intended to replace the advice of legal counsel.
If after looking through this guide you would still like additional support, please contact Dr. Marren Sanders at marrsand@brandeis.edu.
If you are in need of research assistance for your subject matter, feel free to reach out to the Library's Subject Liaisons.
Table of Contents
Why should I think about copyright?
Copyright is a law that grants creators exclusive rights over their creative expressions. You should think about copyright whenever you are considering using someone else’s creative work that was at any time fixed in a tangible medium of expression because if you use someone else’s creative work in a way that infringes their exclusive rights, you can be exposed to expensive legal penalties. Therefore, copyright applies and ought to be considered whenever you intend to reproduce, in whole or in part, something someone else originally created.
The types of “creative work” copyright applies to can be text, images, sound, objects, software, or designs: anything that is someone’s original expression. “Tangible medium of expression” doesn’t necessarily mean that the medium currently exists, only that such a medium ever existed: for instance, a radio broadcast exists (sometimes extremely briefly) on the recording equipment that captures and broadcasts it. Even if a permanent recording of the broadcast wasn’t made or wasn’t kept, the broadcast itself is still copyrighted. This same principle applies to the random-access memory of computers. If something ever existed in any digital form, it could be copyrighted even if it no longer exists or has become inaccessible. Therefore, you should think about copyright whenever you are considering using someone else’s creative work as a part of your own, new work.
Return to Table of Contents
Expand All
Copyright protects specific original expressions, not facts or ideas. For example, no one could copyright the Pythagorean Theorem or the number of proteins in a species’ mitochondria because these are facts. Literary tropes such as elves who live in a forest or rebellion against an evil galactic empire are examples of ideas which are not copyrightable. However, someone could hold copyright to an article about mitochondrial proteins published in a scientific journal, to their elf character Legolas, or to a specific Empire in a galaxy far, far away.
Copyright’s protections are for creative originality, not mere effort. Even if it was incredibly difficult for a scientist to discover the number of mitochondrial proteins, copyright does not grant them control over the information they discovered (the number), but only over the expression by which they conveyed it (the journal article). Anyone else can repeat the fact of the number or the method that discovered it without violating any copyright of the original scientist, but they would violate the scientist’s copyright by reprinting, in whole or in part, the article in which the discovery was published. If someone re-wrote the discoverer’s copyrighted article by replacing every word with synonyms from a thesaurus, then the new article (although it is plagiarism and a serious violation of academic ethics) would not violate the discoverer’s copyright and would be copyrighted to the plagiarist since the new combination of synonymous words is their original expression.
Return to Table of Contents
Works are copyrighted from the moment of their creation as fixed, tangible media. It is not necessary to include a copyright notice (the © symbol with author’s name and the year of publication) for a work to be copyrighted. Because no additional steps are necessary after creation, you should assume that all works that are original and creative are copyrighted by someone.
Return to Table of Contents
Copyright protection lasts for a limited period of time determined by the law, after which the work enters the “public domain” and can be used by anyone. Exactly when a work loses its copyright and enters the public domain is complicated and depends on many conditions. The Cornell University Library provides a useful chart that can help you determine whether a work has aged out of copyright protection.
Return to Table of Contents
Copyright gives creators an exclusive right to do each of the following:
- Copy the work
- Make derivative works based on the original
- Give, sell, or lend the work
- Perform or publicly display the work
- Digitally transmit the work
Return to Table of Contents
How can I know whether something is copyrighted and who owns the copyright?
You should begin by assuming that all original, creative works are protected by copyright before looking for a reason why they may not be, such as whether they have entered the public domain. If you determine that a work is not in the public domain and you still want to reproduce it in whole or in part, you can:
- Obtain permission from the rights-holder
- Consider whether your use is protected by an exception or defense
- Modify your plan to avoid infringing copyright
To determine who holds a copyright and can give you permission to use it, consider the creators and publishers of the work. The copyright holder is generally the creator, but could be someone who commissioned the creator to create the work “for-hire,” or a publisher who the creator agreed to transfer their copyright to.
Return to Table of Contents
Expand All
Permission is consent from the copyright holder to use their work. Often this is called licensing or a “clearance agreement.” If you have permission, you are not infringing a copyright as long as you keep within the terms of your agreement with the rights-holder. In order to get permissions, you have to ask the rights-holder for them. Keep in mind that you may have to pay a licensing fee to the rights-holder to gain permission.
“Clearance services” such as the Copyright Clearance Center are businesses that broker permissions agreements in return for a fixed percentage of the fees. Often such services are the most efficient way to negotiate licenses with rights-holders. You should also be aware that if such a service exists for the copyrighted work you are using, this factor will count against you if you attempt to argue that your use of such a copyright is protected as “fair use.”
Return to Table of Contents
When negotiating for a copyright permission, it is recommended that you:
- Think carefully beforehand about what kind of permission you need from the rights-holder (e.g. to reproduce, to sell, to display, to modify in a specific way)
- Determine whether you want the agreement to be exclusive (i.e. you are the only one who will be allowed to license the copyright, or license it in a specific way)
- Determine the term of length you want the permission to last (e.g. one year or in perpetuity?)
- Decide whether the permission will be limited to certain territory, such as only in the United States or the European Union.
- Get the agreement in writing. Not only will you reduce the likelihood of misunderstanding, you will be in a stronger position if there is a dispute about permission in the future.
Return to Table of Contents
A release is a contract by which someone agrees to give up their right to bring a lawsuit. Whether releases are enforceable is complex and depends on details specific to the jurisdiction and the release in question. A release agreement might be relevant to you if a copyright holder says they will agree to grant you permission to use their work without demanding anything in return. In order to prevent them from changing their mind later on, (or falsely claiming they never agreed) and suing you for infringement, you might ask that they sign a release agreement that, similar to a permissions agreement, specifies exactly what they are allowing you to do with their copyright.
Return to Table of Contents
Students generally own copyright in any original, creative works they create, so long as it is their work and not a work “for-hire.” This includes class assignments. However, students may be required to share their work in certain contexts as a condition of participation in a course. For example, a student may be required to submit a copy to an instructor for grading, or may be required to present the work in class. Because students have the same rights in their works as any other creator, instructors should not reuse or publish student works without their permission. For more information, please see Brandeis’s Intellectual Property Policy.
Return to Table of Contents
Students generally do not own a copyright in course or instructor provided materials, including recordings of class sessions, notes that closely resemble a transcription of the class session, information presented in readings, instructor or course book provided data, or other course materials. Brandeis University expects all students to comply with laws on copyright and other intellectual property laws. Students should ask the permission of the instructor before recording class sessions, or sharing or publishing course materials, including sharing on-line. For more information, students should consult with the Department of Student Rights and Responsibilities.
Return to Table of Contents
How can I use copyright to protect my rights to my own works?
Your own creative work is copyrighted from the moment of its creation (assuming it is actually is your work and not a work you did “for-hire”). Although you automatically hold copyright to your own works, you must register the work with the U.S. Copyright Office before you are allowed to bring lawsuits to enforce your copyright. You can register your copyright by filling out a brief form and depositing two copies of the work with the Office. Timely registration—within three months of the work’s public distribution—makes it much easier to recover money damages from an infringer.
Return to Table of Contents
Expand All
Brandeis’s Intellectual Property Policy describes under what conditions the University owns copyright to works created by members of the University community, including professors, staff, and student researchers. According to the policy, the University will be the copyright owner under any of the following circumstances:
- Development of the copyrighted work was funded by a sponsored research agreement
- A faculty or student creator was specifically funded by the University to create the copyrighted work and agreed in writing that the work’s copyright would be owned by Brandeis
- The IP is created by University employees other than students or faculty in the course of regular employment duties.
- The IP was developed with University resources that substantially exceed or are qualitatively different from those that would normally be provided for regular employment duties
Return to Table of Contents
Scholars should be aware that they might lose the copyrights to their journal articles, unless they negotiate a special arrangement or publish under an open access license. This is because agreements with publishers can often include clauses irrevocably transferring your copyrights away, or may demand that you give up your copyright as a condition of publication. When negotiating with a publisher, you can ask to revise those terms to a temporary license rather than a permanent transfer.
Return to Table of Contents
Open access publishing is a movement among researchers who seek to grant the public broader access to their work. You can choose to license your work with an open access license, such as Creative Commons, which will make it easier for others to use your copyrighted work by limiting some of your own exclusive rights. If you license your copyrighted work under Creative Commons, others will be allowed to use it as long as they obey any conditions you have set, such as requiring attribution or allowing only non-profit uses.
Return to Table of Contents
Copyright violations
Expand All
If you have infringed a copyright, you could be liable to judgments in civil litigation and potentially exposed to criminal penalties. At a minimum, your infringing work will likely be removed from publication in response to a demand from the rights-holder. If you are sued and cannot convince the court that you have a valid exemption or defense, the court may find you liable for potentially large monetary damages. Criminal penalties including fines or imprisonment. These generally apply if copyright infringement was done for profit and the value of the infringing material exceeds a certain dollar amount.
Return to Table of Contents
If your copyright was infringed online, you can file a DMCA (Digital Millennium Copyright Act) takedown notice with the webhost of the infringing content. Websites often have a form or email address that you should use to request that the infringing material be taken down. If the website does not include this information, you may be able to find the site’s DMCA agent on a list of agents maintained by the U.S. Copyright Office.
If the infringement is not online, you can write a letter to the infringer explaining the situation and asking them to cease infringing. A polite, reasonable letter may convince the infringer to stop, but if it does not you will need to retain legal counsel and potentially pursue a lawsuit.
Return to Table of Contents
The Digital Millennium Copyright Act is a United States federal law containing provisions updating copyright law for the computer era. The DMCA specifies what elements that notification should contain (sec. 17 U.S.C. 512(c)(3)) and requires online service providers to appoint a designated agent for notice of infringements. The designated agent for Brandeis can be found here.
Return to Table of Contents
Exceptions and defenses to copyright infringement
Copyright law defines its own limits. These include the amount of time a work is protected before it enters the “public domain,” the “fair use” defense, and a third is a narrow, specific exemption for display and performance of copyrighted works in face-to-face classroom settings. These limits provide guidance as to whether or not your uses of copyrighted material are legally protected.
Return to Table of Contents
Expand All
Copyright only protects the exclusive rights of creators for a limited time, after which the copyright protections expire and the work can be freely reproduced by anyone. Works with expired copyrights are referred to as being in the “public domain.” Works in the public domain are free for you to use without worrying about infringing copyrights.
When thinking about whether a work is in the public domain, it is important to remember that copyright applies to specific expressions, not subjects. For example, the musical score of Beethoven’s “Ode to Joy” is in the public domain, but this does not prevent a recording or a performance of the same song from being copyrighted by the creators of that recording or performance.
Return to Table of Contents
Whether and when a work enters the public domain depends on many conditions. Cornell University has created a chart that can help explain these conditions and answer these questions.
Return to Table of Contents
Fair use is a defense against claims of infringement. If you are sued for copyright infringement, courts will determine whether the alleged infringement qualifies as fair use by using a “balancing test” that considers four factors:
- The purpose and character of the work allegedly infringing the copyright
- The nature of the copyrighted work
- The amount and substantiality of the portion taken from the copyrighted work
- The effect of the use on the potential market for the copyrighted work
Return to Table of Contents
- 1. Purpose and character: The purpose and character factor has two prongs: a) Did the new work transform the meaning of the original, and b) Was it was commercial or not-for-profit (i.e. educational)?
- a) Transformation: For this factor, courts will consider whether and to what degree a new expression “transforms”—changes the meaning of or adds value to—the copyrighted work, such as through parody, review, or commentary. Whether a work is sufficiently transformative is determined on a case-by-case basis. In one case, an unauthorized “encyclopedia” of the Harry Potter universe was deemed not transformative enough because even though its author’s compilation of entries in one volume was innovative, the encyclopedia relied too much on copying the novel’s copyrighted text for its descriptions without adding anything to them.
When considering this factor, ask yourself whether your use of the copyrighted expression was meaningfully different than the original.
- b) Commercial or noncommercial: Courts will also consider whether the alleged infringement had a for-profit or a non-profit purpose. If the purpose is commercial, this weighs against fair use. Non-profit uses are more likely to be found fair. However, this does not mean that all non-profit uses are fair, and in some circumstances, courts have found non-profit educators to be infringing copyright despite this factor. Although non-profit uses weigh favorably in the fair use defense, you should still consider the other factors carefully.
- 2. The nature of the copyrighted work: Copyright law provides greater protection for creative expressions than for factual expressions. Therefore, courts will consider whether the alleged infringement is more creative or factual. To the extent that an expression alleged to be infringing copyright merely describes facts, it becomes more likely that the use was fair and more difficult to prove infringement.
This factor also considers whether or not the work was published. Unpublished works have greater protections because the author has a right to control how their work is published and whether it is published at all. If a copyrighted work is unpublished, this weighs toward making it more likely that an infringement will be found. When considering this factor look at whether what you want to copy is more factual or more expressive, keeping in mind that if it is unpublished, the copyright holder may object that they’ve been deprived of their right to keep the work private or publish as they see fit.
- 3. The amount and substantiality of the portion taken: Courts will consider how much of the copyrighted work was taken and how essential that section is to the original work. The less that is taken, or the less recognizable what was taken is, then the more likely it is that a use is fair. For example, a song’s most memorable guitar solo or its choral “hook” have greater copyright protections than more generic parts. Fair use is more likely to be found when the use of the copyrighted material is brief or difficult to recognize (such as when an advertisement appears in the background of a movie scene). On the other hand, if the advertisement was cinematographically prominent in a long, steady shot, then the film company is more likely to have infringed the advertiser’s copyright.
This works the opposite way for parodies, since parodies copy the most recognizable parts of a work in order for consumers to make the connection with the original. When, and to the extent that, an allegedly infringing work is transformative as parody, more copying of the original’s most recognizable parts can weigh in favor of fair use instead of against.
When considering whether this factor supports fair use in your specific case, ask whether the portions you are copying have heightened (creative) or diminished (factual) copyright protections. Consider how much of and how recognizable are the portions of the original you want to copy, being aware that more recognizable portions weigh against fair use. Ask whether your use is adequately transformative as parody or commentary such that copying the most recognizable portions might weigh in favor of fair use.
- 4. The effect of the use on the potential market for the work: This factor considers whether a use deprives the copyright holder of income, diminishes the copyright holder’s ability to make money from their copyright, or deprives them of their right to choose whether the copyright will be used a certain way or not. If the copyright holder’s rights to control the potential market for their work are violated, this weighs against fair use, and fair use is more likely where uses do not affect the potential market for the work.
Even if the new use does not directly compete with the original for consumer demand, it might be infringing if it deprives the rights-holder of their right to make derivative works. A “derivative work” could be something like a sequel, spinoff, or fanfiction, but this category can be broader including anything where a rights-holder has an opportunity for revenue. For example, copyright protects a painter’s right to decide whether their image can be used on a postcard. Importantly, it doesn’t matter whether the painter intended to sell postcards of their painting or had even considered the possibility for the impact on fair use.
In another example, a sculptor made a work that reproduced a scene originally depicted in another artist’s copyrighted photograph. This was found to be infringement even though the photographer had never considered making sculptures. The sculptor’s infringement violated the photographer’s right to choose whether derivative sculptures would be made at all.
As with the amount and substantiality factor, this factor is considered differently when the use is sufficiently transformative as parody or commentary. A successful parody might destroy market demand for an original by ridiculing it or a critical review might convince consumers to stay away. The market effects this factor is concerned with are those arising from violations of any of the exclusive rights granted by copyright (to copy, sell, transmit, etc.) When there is a market effect on any of those rights, courts will be increasingly skeptical of fair use defenses.
When considering this factor, ask whether your use would have an effect on the market of the original, either by fulfilling consumer demand for the original or by depriving the rights-holder of a potential market for their copyright. If yes to either, it is less likely that your copying is protected fair use. When such a market doesn’t exist and permissions are improbable or impractical to obtain, fair use is more likely to protect your use.
Return to Table of Contents
No, it does not. It is a common misconception that all infringements of copyright for non-profit educational purposes are protected by fair use. Courts will hold educators liable for infringement under certain circumstances and rights holders have become more litigious against educators in recent years. Rather than assume that fair use will protect educators in all circumstances, scholars must consider whether and how the four fair use factors really apply to their circumstance, and must understand that they have no categorical exemption from this law.
When educators mistakenly believe that fair use exempts them from all copyright enforcement, they will often inadvertently infringe by distributing complete, untransformed works that should have been licensed. The most common scenario is when educators want to assign and distribute copyrighted material to their students, either through traditional printing of course books or by distributing copyrighted text, images, or video through course management systems like LATTE. In such cases, if the educator had paused to consider the factors they would have realized that fair use offers them little or no defense and that if they were sued the court would likely find them liable for infringement.
Return to Table of Contents
If you realize that your use will be copyright infringement and not a valid fair use, you should modify your original intention so that the same pedagogical or scholarly goal can be achieved without infringement. Here some suggestions to help you do this.
- Obtain a use license from the rights holder
- Strengthen your fair use case by using the smallest possible portion of the copyrighted work that is relevant to your goal
- Use only works available through a Creative Commons license and use them only as permitted within the terms of that license
- Limit use to only that which is protected under the “classroom exception”
Return to Table of Contents
Creative Commons licenses are public copyright licenses that allow creators to grant the public broader, conditional free access to their work by setting conditions for use of their works, such as allowing the work to be used freely so long as authorship is attributed, no derivative works are made, and/or the use is restricted to non-commercial purposes. As long as the user complies with the conditions of the license, they may use the copyrighted work without infringing the rights-holder’s copyright.
If your creative work may infringe a copyright, consider whether a Creative Commons licensed work could be a non-infringing substitute. Creative Commons images can be found in a searchable database. Google Image Search also includes the ability to filter images by usage rights (under “tools”). Creative Commons licensed video may be found by using a filter on YouTube searches (under “features”).
Return to Table of Contents
The “classroom” or “face to face” exception is a narrow, specific exemption from copyright law that only covers display and performance of copyrighted works within the classroom settings of nonprofit educational institutions. It is important to understand what this does not cover, because misconceptions about the classroom exception contribute to the common, mistaken assumption that copyright doesn’t apply to educators.
The classroom exception is only for display and performance of copyrighted works, and only applies when students are “face to face” with instructors in their classroom. The exception allows educators to have students read aloud a copyrighted play or present a slide including a copyrighted image while in the classroom, but it does not protect digital transmissions through platforms like LATTE or classroom distribution of copyrighted materials for homework assignments.
- Example 1
- Classroom exception covers: Students read aloud excerpts of Arthur Miller’s The Crucible in class
- Exception does not cover: Professor distributes unlicensed copies of The Crucible to students and assigns students to practice scenes at home
- Example 2
- Classroom exception covers: An art history professor includes in her slides a copyrighted photograph of a museum work
- Exception does not cover: An art history professor compiles a collection of copyrighted photographs, prints them, and distributes to students
- Example 3
- Classroom exception covers: A professor has their students watch an entire documentary, during class time
- Exception does not cover: A professor puts a copy of the documentary on LATTE, telling his students to watch it before the next class
Return to Table of Contents
The TEACH Act is a law that attempts to extend the classroom exception to distance and online learning, while balancing the interests of copyright holders. Unfortunately, the Act is highly technical and includes 22 prerequisite conditions that must be fulfilled before educators are protected by it, many of which must be undertaken by university administration and cannot be fulfilled by a single instructor. These conditions are so complicated, and the protections of the Act relatively meager, that many copyright experts and university librarians advise that the fair use factors provide broader and more comprehensible exemptions than the Act does. For your copyright questions, it is therefore usually better to apply the factors than to seek protection from the TEACH Act.
Return to Table of Contents