![Copyright use workflow diagram "I want to use this great [image, article, quote, clip]. Can I use it?"](http://library.csun.edu/sites/default/files/users/apweiss/copyright-use-flowchart.png)
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If you want to add an image, article, quote, clip, or other work to your own, consider the following questions:
When using copyrighted materials, one must consider copyright law and the policies of the library. The library is committed to providing materials for scholarly works and research purposes, while at the same time remaining within the law. Title 17 of the United States Code is the current copyright law, with Chapter 1, section 107 covering the fair use doctrine to enable the use of copyrighted materials for unlicensed purposes.
Section 107 outlines four factors when considering whether the use of copyrighted materials without license is considered fair use:
The law itself does not go into any more detail regarding each of the four factors beyond what is stated above. Instead, the four factors lay out consideration that should be undertaken when using unlicensed copyrighted works when applying it to your use. You should always weigh each of the factors to determine if your use is considered fair use, and ask for consultation when in doubt.
The first factor favoring fair use does not exempt all classroom use, as some may be regarded as commercial and for profit depending on circumstances. In practice, use of limited copyrighted materials in a classroom setting is regarded as fair use. As a policy, the library’s Course Reserves & Curricular Resources (CR/CR) department will restrict access of items on e-reserve that have been scanned or otherwise electronically uploaded to library servers to eligible students. This is facilitated by a Learning Management System (LMS) such as Moodle or Canvas, where the students must have a CSUN portal log-in, and be enrolled in the course by the instructor. With these as gatekeepers, only eligible students may see the materials. Student access must terminate at the end of the semester.
The second factor places non-fiction works as more favoring fair use, and published works (work the copyright owner has sought to distribute) are favored over non-published works. That is not to say you cannot use fiction works if the purpose of using them is for teaching or research in an academic setting, but the amount used and the type of use may be more restricted. The library also prohibits the use of “consumable works”, such as a workbook, from being copied or placed on reserve, as the use of such books is considered highly commercial and may demonstrably impact sales of the item.
The third factor regards the amount used. An amount that would preclude the need to purchase the whole item weighs against fair use, whereas an amount to teach an aspect of the subject but does not negate the market from purchasing the work may factor towards fair use. The substantiality of the work used is generally accepted as being the “point” of the work, or the “heart.” Some works might have equal weight to all sections, where an excised chapter, while important, does not reflect the entire content and would not be considered the whole work when divorced from its context. This would favor fair use. However, some copyrighted works may have a section that stands as a representative of the whole. While not as common, those sections may factor against fair use. Often cited is if posting the last chapter of a popular work, i.e., Harry Potter, which reveals the ending, would generally not support a case of fair use. The library has adopted the general rule of using copyrighted material that limits the amount used to 10% or a chapter (whichever is less) of a book, or one article from a journal title and not more than 10% of a single issue. This should be noted that it is not a negotiated amount with any entity representing copyright holders, nor a codified legal statute. It is part of a code of best practices recommended by organizations such as the Association of Research Libraries. As always, individual instances should be evaluated in and of themselves, and consultation may be needed.
The fourth factor should be used to view how the use of the copyrighted item will affect the marketplace. This factor is one that should be considered very carefully. While the law does not specify that the fourth factor is the paramount factor in fair use, it is often cited when infringement has been found, seemingly giving it more weight through court decisions. If the use of the item(s) by amount or frequency can be reasonably assumed to affect the revenue of the publisher, it is possible that it would exceed the guidelines of fair use. This would be an instance where the reserves could replace the sale of a textbook if the items come from the same publisher, or if an excess of copies are made. Materials should be examined for marketplace impact and any steps to mitigate the appearance of exceeding fair use should be strongly considered.
All of this makes for a complex and often bewildering situation, but it is one that should be considered when placing items on e-reserves. It should not be seen as a barrier, but as a set of guidelines to stay within copyright law and to provide a good faith approach to using licensed materials in an academic setting.
The following chart may be helpful in identifying whether an item’s use could be considered favoring or opposing fair use.
| Favoring fair use | Opposing fair use |
|---|---|
| Teaching | Commercial activity |
| Research | Profiting from use |
| Scholarship | Entertainment |
| Nonprofit Educational Institution | Bad-faith behavior |
| Criticism | Denying attribution |
| Comment | |
| News reporting | |
| Transformative use | |
| Restricted access | |
| Parody |
| Favoring fair use | Opposing fair use |
|---|---|
| Published work | Unpublished work |
| Factual or non-fiction based | Fiction |
| Important to favored educational objectives | Highly creative work |
| Favoring fair use | Opposing fair use |
|---|---|
| Small quantity | Large portion or whole work used |
| Portion used is not central to entire work | Portion used is central or “heart” of work |
| Amount is appropriate to educational objective |
| Favoring fair use | Opposing fair use |
|---|---|
| User owns lawfully owned or purchased copy of work | Use could replace legitimate sale of copyrighted work |
| One or few copies published/available | Market for work impaired by presence of unlicensed copies |
| No significant effect on market or potential market for copyrighted work | Reasonable licensing system available |
| No similar product marketed by copyright owner | Numerous or excessive copies made |
| Lack of licensing mechanism | Web accessible or in public forum with no restrictions |
| Repeated or long term use |
You may always consult with Copyright Team as well as CR/CR staff on whether the use of an item constitutes fair use. While the CR/CR staff adheres to its guidelines, there is room for discussion on individual items regarding whether more leeway can be given.
Some items may have explicit prohibitions from publishers regarding their use in academic reserves. The CR/CR department has a policy of generally honoring these limitations, even if the item may qualify for fair use without it. In this case, the CR/CR department will help the professor look for alternatives.
Another traditional safety valve to work with materials without seeking copyright permission is to use works in the public domain. Public domain works are items that have had their copyright expire, or that have never had copyright restrictions applied to them. This means that users of the content are free to use it without the permission of the owners.
As a rule, items published prior to 1929 are public domain materials. However, because of stipulations in previous copyright laws requiring content creators to follow guidelines, some works published after 1928 and before 1989 failed to initiate or keep their copyright protection. Numerous works published during this time may be in the public domain. The changing laws of copyright have made this variable depending on an item’s creation and/or publication.
Therefore, determining whether an item is in the public domain depends on when it was published, whether a copyright notice was included at the time of publishing (applicable only in certain years), or the time of the author’s death.
| Date of first publication | Public domain? | |
|---|---|---|
|
Before 1929 |
Yes |
|
|
Between 1929 and 1977 without © notice |
Yes |
|
|
Between 1929 and 1963 with © but not renewed after 28 years |
Yes | |
|
Between 1929 and 1963 with © and renewed after 28 years |
Protected for 95 years after publication date | |
|
Between 1964 and 1977 with © notice |
|
|
|
Between 1978 and Jan. 1, 2003, created before 1978, but published before Jan. 1st 2003 |
Protected for the greater of the term specified in the previous entry or until 31 December 2047 | |
|
Between 1979 and Mar. 1, 1989 without © or subsequent registration |
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first | |
|
Between 1979 and Mar. 1st 1989 without ©, but renewed or published with © notice |
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first | |
|
After Mar. 1st, 1989, with or without © notice |
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first | |
|
After December 31st, 2002 |
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first |
Government publications are largely public domain from time of publication due to the standing policy of classing these documents for public use. However, some materials published by the government may still be protected by copyright; therefore it is necessary to check for a notice restricting usage of these materials.
NOTE: The public domain in the United States, which had been frozen under the terms of the Copyright Term Extension Act of 1998 (aka Sonny Bono Act), began a yearly thaw on January 1, 2019. On that date, works published in 1923 entered the public domain, freely available for everyone to use. For more details, see Duke University’s Public Domain Day 2019.
Keep in mind that unpublished materials have much longer copyright protection periods. As a result, archival documents (including unpublished photos, personal letters, etc.) published after 1894 are still subject to copyright restrictions.
For more information on this, please consult the Special Collections & Archives policies on copyright.
1) How does one copyright a work? Must it be registered?
Current copyright law is defined by the Copyright Act of 1976. Under this law one must simply create an original work (i.e. not copied) with a minimal amount of creativity and then fix in "tangible medium" (i.e. a piece of paper, a book, web page, etc.). Registration is not required as the copyright is automatically assumed, though registration is necessary for filing a suit.
2) Are new copies (i.e. a digital photo) of public domain works newly copyrighted?
No. As long as the new copy is merely a facsimile (i.e. a microform version, a digital image or rendering) of the original and nothing is added to the original, that version is still in the public domain. Sometimes with updated editions of books, for example, the critical apparatus (i.e. introduction, historical footnotes, etc.) the newly added material is copyrighted. However, the original text remains in the public domain.
3) What is the public domain? / How does something enter the public domain? / When do the next works enter the public domain?
The public domain is all the created cultural materials that have no copyright protection. These items enter through various avenues, including mandated public domain (as in the case with Federal Government publications), the passage of time, the non-compliance with historical requirements, and, more recently, individual licensing (Creative Commons, etc.). Currently items published before 1929 are in the public domain. Due to the passage of the Copyright Term Extension Act in 1998, works did not enter the public domain until 2019. See our public domain section for more details.
4) If something doesn't have a copyright symbol (c), can I assume it is not copyright protected?
No. For recent works the assumption is that everything is copyrighted automatically. In the past, some works published without (c) copyright notice were considered public domain. See the Copyright Genie for more details.
5) When a faculty member makes something while employed at CSUN, who owns the copyright?
According to the current CSUN policy on copyright, unless a creative work was stipulated in writing (likely in a contract) as a "work for hire," anything created by CSUN faculty while employed at CSUN is owned by the author, not the university.
6) When a student conducts research and writes a paper such as a thesis at CSUN, who owns the copyright?
Again, as in the case with faculty, most work - unless stipulated in written contracts as a work for hire - research and papers are considered the work of the author. In some cases with theses, there may be grant-funder stipulations regarding the accessibility of the content (i.e. must be embargoed, etc.), but this is not the general rule.
7) What's an Orphan Work and why are they so problematic?
An orphan work is essentially a work that is likely still under coyright protection, but the copyright owner/holder is not easily contacted or identifiable. In some cases the author has died or the publisher has gone defunct, but the work technically remains under copyright protection. Since it is too difficult to clearly delineate all scenarios regarding orphan works, it is recommended to examine the Statement of Best Practices in Fair Use of Orphan Works for Libraries and Archives (endorsed by CSUN and the University Library) published by the Center for Media and Social Impact. These best practices will help one navigate the extremely thorny issues of orphan works.
1) How does copyright work with course reserves?
Copyright with course reserves comes into play when you make a reproduction of copyrighted material, whether physical or digital, and distribute it to your students for their coursework. The law makes no differentiation to the format, only that a duplication of any sort has taken place. Usually, this means a digital copy that has been uploaded to a Learning Management System (LMS), such as Moodle or Canvas, but it can also apply to a physical photocopy placed on reserve.
University Library policy limits excerpts from a book to 10% of the content page count or a chapter, whichever is less. For instance, a book with only four chapters means each chapter is 25%, so you may not use the entire chapter.
Journal articles are limited to one article per issue.
2) What if I need more than the limits of fair use?
Permission from the rights holders may be needed to use a portion that exceeds fair use guidelines. Rights holders may be the author, publisher, both, or a third party. Permission from all rights holders must be obtained for each item. The library may be able to assist with finding alternatives to reproducing a copyrighted work if the rights holder is unavailable or unwilling to grant permission.
3) Can I place an entire textbook on reserve if it is the original purchase?
Yes. Materials that are owned by either the library or instructor may be placed on reserve as long as they remain in the format in which they were published (i.e., a book remains a book.) This is covered under the doctrine of first sale, where a publisher has no further expectation of royalties or payment beyond the initial purpose so long as the content in question remains in the published form when used.
4) How is copyright handled with electronic items in Canvas?
It is ultimately the instructor’s responsibility to ensure all items on their course page are in compliance. The Course Reserves & Curricular Resources (CR/CR) department can assist with fair use consultations. Files scanned/vetted by CR/CR have a copyright notice attached that informs students of the library policy regarding the prohibitions on distributing copyrighted works to others.
5) What about articles that are available through a CSUN database?
Items directly linked through a CSUN paid database are generally free of copyright restrictions provided they make no reference to refusing use with electronic reserves. We do experience occasional database errors. Please let us know if you encounter an article that becomes unavailable.
6) I have an item I found on the web. Can I use it?
If the website can be directly linked, it can probably be used without copyright permission. Exceptions include (but not limited to) any site that hosts copyright materials (i.e., PDFs) that may be in violation of copyright law. Err on the side of caution with these websites and do not link to them.
Please keep in mind that non-CSUN websites, especially personal websites, are subject to be taken down due to unforeseen circumstances and it is recommended that they be monitored periodically by the instructor to ensure their availability.
Downloading the item and using it may or may not be fair use. Direct examination may be needed. Consult with a member of the copyright team for more information.
7) How do I know if something is in the public domain?
Any item published before 1929 is public domain by law. Newer items may be public domain depending on circumstances. Please see the page regarding public domain.
Government documents are public domain by default regardless of publication date. However, some publications of the federal government or its agencies may still be copyrighted.
1) There’s a YouTube video I want my students to watch, can I post a link to it in my Moodle course?
Yes, but it is recommended you verify that the content has been uploaded to YouTube legally before doing so. This can be done by looking for rights and/or license statements accompanying the video, for example, or by examining the YouTube user’s profile. While it’s easy to find a variety of content on YouTube, it is important to note that many may have been uploaded without the copyright owner's consent.
2) I’m teaching an online-only course, how can I show a feature film to my class?
Feature films can be tricky, but you have a few options. If showing a portion of the film will suffice, you may be able to apply Fair Use or TEACH Act guidelines. If you need to show a film in its entirety, you may want to ask your students to purchase the film via a subscription service such as Netflix or Amazon. Requiring students to pay for access to films is akin to requiring textbooks. Canistream.it is a helpful website for finding where films are available for streaming. Additionally, if students are able to come to campus, you can place videos from the Library’s collections on Course Reserve for viewing.
3) Can I override the DRM features on DVDs so I can show clips to my class?
Maybe. The Digital Millennium Copyright Act (DMCA) prohibits the overriding of Digital Rights Management (DRM) features, however, Section 1201 allows for certain exemptions. Currently, “short portions” may be allowed if there are no “reasonably available alternatives”, the DVD has been lawfully made and acquired, and the clips are for educational purposes, such as criticism and analysis of the material. However, the exemptions do not apply to fictional films.
4) Can I show my class a film via my personal Netflix account?
Probably not, as this is likely a violation of your contract with Netflix. Services provided by content providers such as these are often restricted to personal and non-commercial use only.
1) Are links copyrighted? Am I liable if I post or publish a link to material that turns out to be pirated or unauthorized?
Individual links can not be copyrighted. If one collects and creates an annotation of many weblinks, one can assert that the annotations are copyrightable. Additionally, one is not liable for copyright infringement by merely referring users to a page or to content that is itself a violation of copyrights.
2) I want to excerpt a few paragraphs of a work to publish on my course blog. It that too much? How much is acceptable?
Using content requires a fair use analysis examining the purpose of the use, the nature of the work to be used, the extent of the work to be used, as well as the impact that the use has on the original. See our Fair Use page for more details on how to analyze and determine a Fair Use for content. Briefly, posting an excerpt from a recent novel or a poem would be more difficult to justify than an excerpt from an encyclopedia or fact book.
3) Using HTML I created a personal website for my course. How much of it is protected by copyright? Is my HTML coding protected as well as the content?
Section 102(a) of the Copyright Act defines the following eight things as copyrightable: (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. However, it does not: "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery". In other words, the content is protected but the vehicle, in this case the HTML coding (arguably a system of content delivery), is not protected under copyright.
1) Is making an audio version of a book for a blind student a violation of copyright?
Probably not. Copyright law (section 121) provides specific exemptions for the creation of accessible works; essentially an authorized organization (i.e. a non-profit or government agency) can create a copy of a copyrighted work for the sake of accessibility. The Americans With Disabilities Act also mandates that people with disabilities be provided with accessible content. However, certain conditions must be met. The content must be available only to specific users. The resulting format must also be usable for those with disabilities. Copyright notices and warnings must also accompany these new versions.
1) I found some pretty old materials in the archives. Since they've never been published but appear in a publicly-funded archive, are they available for me to use freely?
One of the reasons for developing copyright law was to spur incentives for creativity and innovation. As a result, unpublished works are protected more than published works. In fact, unpublished works are more difficult to justify in a Fair Use defense than published works. The copyright term is also longer for unpublished works. Currently the public domain for published works ends at 1923, but the cut-off date is for unpublished works is 1895. If the work you've found is pre-1895, then it is likely in the public domain and free to use.
1) How is Open Access related to Copyright?
Open Access is the free accessibility of published materials with economic and physical access barriers to the content removed for the readers. In other words, anyone can access and use the content for free (and usually online). CSUN has its own Open Access resolution, passed in November 2013 by the Faculty Senate. However, it does not mean to say that the open content itself is copyright-free. Indeed, many of the authors still assert their copyrights, but they also agree that access to the information is more important than the potential economic benefit of pay-for-access models. Usually open access works have a Creative Commons or other open license dictating what rights have been waived and which have been retained.
2) Why are some Electronic Theses and Dissertations (ETD) available openly, but others are restricted?
We have three ETD collections and access to each is dictated by various university policies and copyright laws. The first, Electronic Theses & Dissertations (ETDs) (2011-) contains theses mandated by CSUN to be published online in open access from May 2012. Some theses in this collection are currently inaccessible due to embargo restrictions placed on them by the students (often at the behest of thesis advisors). The typical reason for this is to protect the work from being "scooped," to allow the writer to publish the work as a book or article, or to adhere to grant funder requirements. However, it should be stated that student authors retain ownership of copyright even if they are posted online in an open access forum.
The second collection, Legacy Open Access Electronic Theses and Dissertations (1957-2011) is entirely open. Copyright law in effect during the period of time from the late 1950s to March 1989 stipulated that theses published without a copyright symbol and without registration in the US copyright office were published directly into the public domain.
The third collection, Legacy Partial Access Electronic Theses and Dissertations (1957-2011), contains materials determined to still have copyrights associated with them. This includes all works -- unless students have given written permission -- from 1989 onward as well as those works published from 1957-1988 that had affixed a copyright symbol to their works and registered them with the US Copyright Office. Only current CSUN students, faculty and staff can access these.
3) I would like to add my article to ScholarWorks, but the journal owns the copyright. How can I participate?
This is an unfortunate result in the currently compromised scholarly communication model. Most publishers require scholars to sign over their copyrights to them. Usually this restricts where scholars can post their work - sometimes even personal websites and institutional repositories are prohibited. However, most publishers cannot assert copyright ownership of first drafts (called pre-prints) or of peer-reviewed pre-published versions (called post-prints). You can freely submit earlier versions of your work to ScholarWorks in order to increase the accessibility of the information. See our ScholarSpotlight information page for more details.
4) How can I negotiate copyright transfer agreements so that they are more amenable to me?
One of the big problems with the current academic publishing model is the practice of many publishers requiring the copyright to be transfered to them. However, one does not have to agree with the publisher policies and can negotiate terms of the publishing contract (see "Negotiating in Publishing" (Weir, 2012)). The main problem is that this does increase the risk of the work not being accepted by a journal. Those who are pre-tenure assume more risk. Post-tenure, a scholar's leverage is much stronger.
1) I found an old poem from the 19th century in an anthology published in 1975 and want to use it in my book. Must I ask the anthology's publisher for permission to use it?
In the case of republished works, the most important date is the original date of publication. For a poem such as Whitman's "Song of Myself," for example, even if it is later republished in 2014, the original date of publication determines whether it is in the public domain or not. As a result, one does not need to ask for permission of the reprinter. You will have to ask permission to reproduce any additions to the text such as an introduction, footnotes, or other critical apparatus.
2) I am planning to translate the work of an Italian author. As translator, may I publish the resulting work on my own?
A translation is considered to be a derivative work - i.e. an adaptation of an original. As a result, the author of the original owns the right to prepare and distribute a derivative work. However, if the work is in the public domain in the United States, such as Dante's Inferno, no permission is necessary. If the work is still under copyright protection, such as Invisible Cities by Italo Calvino, the translator must first gain permission of the author, publisher or estate owning the copyrights. As translator of a public domain work you can claim copyright ownership of the translation; however, anyone else can make their own translation of the original as well.
3) I want to display a poem in its entirety on a PowerPoint slide for the students enrolled in my course so they can all read it at once. May I do this? What if I'm teaching an online class in Moodle?
Under the TEACH Act (Section 110(2) of the Copyright Act), a small poem or a short story can be copied for a class in a face-to-face teaching scenario and this considered acceptable. Something longer, such as an epic poem for example, would likely not be acceptable. For Moodle, small amounts of text can also be copied and provided for access at all times during the course term (i.e. one semester).
1) I want to use a digital image of a 16th century painting owned by a famous museum. Do I need to get permission from the museum to put this photo on the cover? What about putting it on a website?
Many museums (such as the Getty Museum, MOMA, etc.) have attempted to limit the use of their in-house digital images of public domain paintings and drawings (see Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching (Crews, 2012)). This is mainly an overreach of rights. Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) clearly states that exact photographic copies of public domain works (especially 2-dimensional works) are not original and could not be copyrightable. Caution must be made, however, in the case of 3-dimensional works such as sculpture as they may have sufficient originality (i.e. lighting, angle, presentation) to be considered a new work, even if the subject is in the public domain. As a result, copy photographs of two-dimensional paintings in the public domain can be used at will anywhere, including on the cover of a book or posted online.
2) I found a great photo on the web through Google Images. It's OK to use it freely, right?
No! Although thousands of images may appear in a Google Image search, it doesn't necessarily mean the copyright for the image has been relinquished or that it is in the public domain. Indeed, the owner of the image may be unaware that there are so many copies of his/her work available online. User beware. Further, the issue of legality will always come back to your intended use. If you believe your use for the image found in Google Image search is Fair (or is in the Public Domain - or has a Creative Commons license), then you could use it - though you should perform a Fair Use Analysis if you are in doubt. However, the assumption that all images found online are fair game is a false one.
3) I want to use one graph for a powerpoint presentation at a conference from an article available in the Journal of the American Medical Association. Can I use it without permission?
For the presentation itself, it is likely that using a single graph from a single article in a long-running journal would be considered Fair Use. However, if your work is also published later in proceedings, or if your presentation is recorded and then distributed, you might need to secure permission from the publisher for use of the graph. A solution might be to provide a link to the article rather than present the graph in a final fixed form (i.e. recording or published proceedings).
[All sections updated: January 2021]
