Your Copying Rights Under Copyright Law

The Law Giveth and the Law Taketh Away . . .

The copyright law of the United States (Title 17, United States Code) provides legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellectual products.  An author’s copyright in a work arises at the moment the work is created.  Publication is not essential for copyright protection.  The copyright symbol (©) is also not required for copyright protection to occur, although use of the symbol does grant certain advantages to an author in the event of litigation.  An author may transfer copyright ownership to another party.

The copyright law grants the owner of a copyright the ability to control the reproduction of an original work.  This right is not permanent.  With certain exceptions, the term of copyright is life of the author plus 70 years.  In addition, the right to control the reproduction of an original work is not absolute.   In a number of instances, making copies without first seeking permission from the copyright owner is considered copyright infringement and is against the law.   However, the law allows for the reasonable unauthorized use of an original work when the use is thought to advance the public welfare.  This exception to copyright law is known as the "Fair Use Doctrine" and it is codified at Section 107 of the Copyright Act as follows:

. . . 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, newsreporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1)  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)  the nature of the copyrighted work;

(3)  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)  the effect to the use upon the potential market for or value of the copyright work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of the above factors.

These factors are considered as part of a balancing test to determine whether the use will benefit the public.  Uses for nonprofit educational purposes are favored over commercial uses.  An explicit part of the equation is whether the potential market for the original work diminishes as a result of the unauthorized use.   Fair use is considered a defense to a claim of copyright infringement, but the defending party carries the burden of proving that the use of the work was fair.