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Copyright

Copyright Basics

Pink marker highlights the word "copyright" in a dictionary

Copyright is a federal law that protects original works of authorship fixed in any tangible medium of expression. Only the creator can use their copyrighted works in the following ways unless they give explicit permission:

  • Distribution
  • Reproduction
  • Derivative Works
  • Performance
  • Public Display
  • Digital Audio Transmission

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What is protected by Copyright?

Copyright protection exists in original works of authorship fixed in any tangible medium of expression. The two key phrases here are "original works" and "fixed". The creativity level required for originality is very low - a "spark" - but is required, no matter how much effort was required to create the work.

Works of authorship include the following categories:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

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What is not protected by Copyright?

According to 17 U.S. Code § 102, copyright protection does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." It also does not protect lists, titles, short slogans or phrases, symbols, and the like. While these items may not qualify for copyright protection, they may be covered through other intellectual property protections such as trademarks, patents, or trade-secrets.

Works of the Federal Government are also not eligible for copyright protection and are a part of the public domain. These works are specifically defined —”a ‘work of the United States Government’ is a work prepared by an officer or employee of the United States Government as part of that person’s official duties” (17 U.S. Code § 101). That said, we cannot simply assume anything posted or published by the federal government is free of copyright. 

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How long does Copyright protection last?

For works created and published in the United States after 1989, the copyright term is the life of the author plus 70 years.

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Fair Use

Fair use is a limitation to copyright set forth in 17 U.S. Code § 107 for purposes such as criticism and commentary. There are four factors of fair use, each of which must be considered in an analysis:

  • Purpose and character of the use
  • Nature of the work
  • Amount and substantiality used
  • Market effect

There are no bright-lines or blanket applications for fair use. The facts of each potential use must be evaluated against the four factors. If one aspect of the use changes, a new analysis should be done.

The best person to do a fair use analysis is the user. You understand the facts of the use and how the four factors apply better than anyone. There are several resources that can help you conduct a fair use analysis:

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