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View of Georgetown campus from the Virginia side of the Potomac

View of Georgetown campus from the Virginia side of the Potomac

Design Management and Communications: Copyright & Fair Use

A subject guide for Georgetown School of Continuing Studies students in the Design Management and Communications program of study.

Defining Copyright, Fair Use, Public Domain, and Open Access

Copyright

Copyright is a legal right, grounded in the United States Constitution, that gives the owner of copyright in a work the exclusive right to:

  • Reproduce (make copies of ) the work; and
  • Modify or prepare derivative works based on the work. (Examples of derivative works include translations, transforming printed works into musicals or films, rearrangements of scores, and any other recast, transformation or adaptation of a work); and
  • Distribute the work in any format by sale, publication, license, rental, or for free; and
  • Publicly perform or display the work; and
  • Authorize others to exercise some or all of those rights

Fair Use

Copyright law recognizes that not all uses of copyrighted works infringe the rights of the copyright owner. Section 107 of the Copyright Act states:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

"Fair uses" of works do not require permission.

Public Domain

The following works are in the public domain and can be used by anyone for any legal purpose without permission.

  • Works created by U.S. government employees in the scope of their employment
  • Works for which copyright protection has expired
  • Works that do not contain the requisite originality (e.g., facts, blank forms)
  • Works that contain a notice from the copyright owner expressly rejecting any claim of copyright and placing the work in the public domain

Unless you are sure a work you find on a website falls into one of these four categories, you must assume the work is protected by copyright.  

Open Access

The term “open access” refers to a free and unrestricted online availability of  journal literature, made possible by the convergence of the tradition of scholarly publishing and the technology of the Internet. The specific features of this free and unrestricted availability are spelled out in various public statements, including the Budapest Open Access Initiative, the Bethesda Statement on Open Access Publishing, and the Berlin Declaration on Open Access.

 

Determining Fair Use

Four factors are considered in determining whether or not a particular use is fair or not. No single factor dictates whether a particular use is fair use.  All four factors must be considered in making a determination.

1. What is the purpose of the use?

Fair use favors any use that is nonprofit, educational or personal, especially if it is for teaching, research, scholarship, criticism, commentary, or news reporting.  Fair use does not favor uses that are commercial, for profit, or for entertainment purposes. It is important to remember that not all educational uses are fair use. Transformative uses that transform or modify the original purpose of the work and contribute new intellectual value to the original work are often considered fair use.

2. What is the nature of the work?

Since authors should have final say over when and how their works are published, fair use tends to favor published works over unpublished works. In addition, factual works are more likely to be considered available for fair use than creative works such as art, music, novels, films, and plays.

3. How much of the work will you use?

Using a small amount generally favors fair use, whereas using a large amount weighs more against fair use. However, even a small amount of a work can be too much if it can be considered the heart of the work.

4. What effect will the use have on the market or potential market value of the work?

Does the use deprive the copyright owner of income or undermine a new or potential market? If so, the use does not favor fair use.

Fair Use Analysis Tools

The following tools are based on the four factors of fair use - purpose, nature, amount and effect – and help determine if fair use applies.  They provide an important means for recording your fair use analysis, which is critical to establishing "reasonable and good-faith" attempts to apply fair use.

In addition, the Association of Research Libraries, in partnership with the Center for Social Media and the Washington College of Law at American University, developed the Code of Best Practices in Fair Use for Academic and Research Libraries in 2012 to aid the research and academic library community in determining fair use. Additional codes of best practices in fair use can be found on the website of the Center for Media and Social Impact.

What is Protected by Copyright?

Original works, whether or not published, that exist in a tangible medium that can be touched, seen, heard, read and fall into one of the following categories are protected by copyright.

Copyright applies to a wide variety of works including, but not limited to:

  1. Literary works
  2. Musical works, lyrics, and sound recordings
  3. Dramatic works
  4. Pantomimes and choreographic works
  5. Visual works (photographs, paintings, sculptures, maps, logos, etc.)
  6. Multimedia works, movies, and other audio-visual works
  7. Software code
  8. Architectural works, etc.

These works are protected from the moment they are in a fixed format regardless of whether they contain a copyright notice or copyright has been registered.

Items not protected include, but are not limited to:

  1. Titles, names, slogans
  2. Ideas, procedures, methods, principles, concepts, systems
  3. Works lacking originality (calendars, tape measures, rulers, etc.)
  4. Works created by employees of the U.S. Government in the course of their employment
  5. Works comprised entirely of public domain information

Copyright Websites

Open Access Resources

Here are a few resources for the following specific needs: 
More resources 

Duration of Copyright

Copyright applies for a limited term. The length of that term depends on when the work was first created, whether or not it has been published, and whether the work was first published in the US or abroad.

Suffice it to say that for works created in the US today, copyright lasts for 70 years after the death of the creator and in the case of a corporate author (which could include works for hire), copyright lasts for 95 years from publication or 120 years from the date of creation, whichever expires first.

When the copyright term in a work expires, the work loses copyright protection and enters the public domain.  See "Public Domain Defined" below.

To determine the copyright term for all other works, consult the Cornell University chart "Copyright Term and the Public Domain in the United States."

Additional Tools

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