Copyright

Contents
Back to top ^

We are constantly creating and using copyrighted works in our professional and personal activities, so understanding copyright is essential to ensuring we understand the rights of all owners, including ourselves. The sections below provide information to help you better understand copyright.

This content is for informational purposes only and cannot be construed as legal advice. While we cannot provide legal advice, we can help explain these issues in greater detail.

Please contact Molly Keener, Director of Digital Initiatives & Scholarly Communication, with questions.

Copyright is a legal protection that grants intellectual property rights to authors and creators of original works. The Copyright Act and related copyright laws appear in Title 17 of the U.S. Code. Specifically, copyright law intends to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This means that authors get exclusive rights to say how their original works may be used for a certain amount of time, with some important exemptions.

Copyright grants authors five broad categories of rights:

  • Reproduction (i.e., make copies of the work)
  • Distribution (i.e., share the work)
  • Preparation of derivatives (i.e., create translations, adaptations, sequels, etc.)
  • Public performance (i.e., perform the work in a public place)
  • Public display (i.e., display the work in a public place)

Copyright applies to the following types of original works:

  • literary works
  • visual works
  • audiovisual works
  • musical works, including accompanying words
  • dramatic works, including accompanying music
  • sound recordings
  • pantomimes and choreographic works
  • architectural works

Copyright exists from the moment of creation, as soon as a work that is original and creative (legally a low threshold) is “fixed in a tangible medium of expression.” Essentially that means that the work is not a copy of something else, includes more creative spark than listing in alphabetical order or similar obvious presentation, and is an idea that has made it out of the author’s mind into a tangible form. Authors do not have to register copyright to have ownership – copyright just happens! There are, of course, good reasons to register in certain situations. Authors also do not have to publish or publicly share their work or include notice – (c) name date – to secure copyright; again, copyright just happens.

The author is the initial copyright owner. If two or more people jointly create a work, they are joint copyright owners, with equal rights. With some exceptions (especially in academe), work created as a part of a person’s employment is a “work made for hire” and copyright belongs to the employer.

Authors can license or transfer some or all of the rights within copyright to others. Licenses may be granted to multiple parties so long as they are not conflicting. Transferring ownership may only be done to one party and must be in writing.

So, because copyright happens automatically and attaches to your works upon creation, you already own multiple copyrights! There may be works that belong to Wake Forest University (see the WFU Copyright Policy) or to someone else if you transferred them in writing (e.g., when you or your coauthors signed a publishing agreement), but there are many more that you own.

Copyright lasts for a long time:

  • For individually created works, copyright lasts the life of the author plus 70 years. For jointly created works, copyright lasts 70 years after the death of the last living author.
  • For works made for hire or anonymous works, copyright lasts 95 years from publication or 120 years from creation, whichever expires first.

This means that for the duration of copyright, anyone who wants to use the work in any way must either have permission from the copyright owner, be using the work under allowable exemptions in the Copyright Act, or be exercising fair use.

These tools can help you determine whether a work is still under copyright:

There are works and elements to which copyright does not apply:

  • Facts, ideas, & concepts
  • Data (although subject to ownership)
  • Titles, names, & short phrases
  • Familiar symbols or designs
  • Typefaces, fonts, & lettering
  • Recipes
  • Layout & design, blank forms

These elements or works may be too generalized (e.g., mathematical theorems) or not sufficiently original to warrant protection (e.g., sourdough bread recipe). Other elements may be subject to other types of intellectual property laws, such as trademark (e.g., slogans, logos, or phrases that identify a good, service, or item) and patent (e.g., procedures, processes, methods of operation, useful articles, etc.).

More info on what copyright doesn’t do, from the U.S. Copyright Office:

Public Domain

There are also works that have no copyright owner–collectively this is known as the public domain. Some works in the public domain are old enough that their copyright expired (e.g., Jane Austen’s novels) or they were never subject to copyright in the first place (e.g., works of the Federal government and Federal employees acting in the course of their work). Others were intentionally released to the public domain by their author.

Works enter the public domain each January 1 when copyright expires for a whole year’s worth of works that were published in the United States. For example, on January 1, 2022, all of the works that were published in the U.S. in 1926 entered the public domain. On January 1, 2023, works from 1927 will enter the public domain, and so on. Additionally, some works from throughout the 20th century before 1978, and some between 1978 and 1989, also enter the public domain depending on when and how they were created or published. Determining the copyright status of many 20th century works can be difficult, leading to unknown ownership status–these are often known as orphan works. Works of the Federal government and Federal employees enter the public domain automatically upon creation, even today.

Public accessibility is not the same thing as the public domain, however. Simply because a work is publicly accessible (e.g., an image online or public art) does not mean that it is in the public domain. Most works that are publicly accessible, especially online, are copyrighted and have a copyright owner.

The public domain is a rich source of inspiration for individuals to draw upon when making their own works or finding works to use. Because there is no copyright, no permission or licensing is needed to reuse, remake, remix, or redistribute public domain works. However, other legal and ethical issues–including defamation, publicity rights, trademark, or plagiarism–can still arise through use of these works. And public domain status is determined by works’ United States publication dates; if published outside the U.S., a work may still be under copyright, here and elsewhere.

Fair Use

Fair use is a right granted in Section 107 of the Copyright Act (17 U.S.C. §107) that allows limited uses of copyright-protected works without permission. Fair use generally covers uses such as commentary, criticism, satire and parody, news reporting, and limited use in teaching and scholarship. Fair use is assessed along four factors:

  • Purpose and character of the use (i.e., what are you doing)
  • Nature of the original work (i.e., what was the work originally intended for; are you using it in a transformative way)
  • Amount of the work used in relation to the whole (i.e., how much; is it the “heart of the work”)
  • Impact of the use on the potential market of the work (i.e., is it a market substitute)

Each instance of a proposed use must be evaluated using the four factors above to determine if, on balance, the use is fair or not. Simply because a proposed use is broadly educational does not mean it is a fair use! Additionally, a work may be used in one situation that is a fair use, but in another situation where permission is necessary. Fair use can be tricky to determine and therefore makes people nervous, but it is a powerful right that can and should be exercised.

For help with determining fair use, you can consult a Fair Use Checklist to help you think through your use. NOTE that this checklist is not a legal document and cannot be interpreted as legally binding or as legal advice, nor should it be the only step in thinking through fair use. It is merely to offer guidance as you begin to evaluate your use.

Another way to think through fair use is to ask yourself these questions: Am I using the work to make a specific point? Is that point clear to my audience? And am I using the minimum amount necessary to make my point? Answering yes to all three questions will help guide you through your fair use assessment.

Additionally, there are multiple Codes of Best Practices in Fair Use available that offer additional guidance and case studies for fair use in specific fields and disciplinary practices.

Permissions & Licensing

There may be times when you need to seek permission to use copyrighted works. In such cases, you will need to contact the copyright owner to request permission. NOTE that the copyright owner may not be the author or creator, particularly for published research. Although permission may be granted verbally, it is always a good idea to get permission in writing and to save a copy of the permission in your records. It is worth noting that asking for permission to use a work does not negate the possibility of using it under fair use, although you may want to determine if you can exercise fair use before you seek permission.

Other times you will not need to seek permission as there will be licensing that already stipulates permitted uses. Open licenses such as Creative Commons licenses or GNU Licenses are common for online digital works, although Creative Commons licenses can apply to all types of work, not just digital.

Open Access works are online works that are freely available to access and use, and often have more permissive licensing for users, including through Creative Commons licenses. Increasingly, scholarly research is available open access, with different levels: diamond, gold, green, or bronze. Each level has different permissions and restrictions for both authors and users, so it is important to understand what level of openness a work is before you reuse it.

In Your Scholarship

Scholarly materials such as publications and presentations are copyrighted works. Per Wake Forest University’s Copyright Policy, works of scholarship created by faculty, staff, and students are the copyright of the individual, not the institution. As the author, you hold full copyright ownership. If you are working with others, each coauthor holds ownership in the copyright. This means that each person has the same five basic rights–reproduction, distribution, derivative creation, public performance, and public display–and they can grant permissions and enter into licensing agreements exercising those rights without needing the permission of their coauthors (although it’s always a good idea!), so long as any permissions or licenses are not conflicting with other such agreements.

Academic publishers often require full copyright ownership to be transferred to the publisher through the publication agreement. This means that the publisher now owns the full copyright and authors are subject to any permissions or licenses the publisher grants in return. It’s likely that you do not own copyright in most of your published works, or if you do retain copyright you have transferred significant rights to the publisher. Therefore you cannot assume that you can use your work however you wish (e.g., post to your website, post to a repository, or even share with your students); you may need permission from the publisher or use the work under fair use or through exemptions. You should always retain a copy of the publishing agreement so you know what rights you have in your works.

When you are incorporating third party materials into your works (e.g., images), you need to determine if your use needs permission or is a fair use. For published materials, permission may be required by your publisher. Typically you are responsible for paying copyright permission fees.

In Your Teaching

Course materials such as lecture notes, slides, recorded lectures, and assignments are copyrighted works. Per Wake Forest University’s Copyright Policy, course materials created by faculty are the copyright of the individual, not the institution. As the author, you hold full copyright ownership. If you and a colleague collaborated on creating course materials, you each hold copyright ownership.

Students also own copyrights in the classroom. Papers, artworks, videos, podcasts, websites, and a host of other original works created in a course are owned by students. This means that you cannot use student works, either in your teaching or scholarship, without their permission. Additionally, students are granted certain privacy rights under the Family Educational Rights and Privacy Act (FERPA) and, while not copyright related, these are rights that must be considered when assigning students to create works that are public-facing.

Many people erroneously think that the Classroom Use Exemption in Section 110(1) of the Copyright Act (17 U.S.C. §110(1)) gives carte blanche exemption for any educational use of any copyrighted material. That is not true. The Classroom Use Exemption only applies in limited situations, although where it does apply it provides clear rights.

The Classroom Use Exemption applies to activities in a classroom or “similar place devoted to instruction” taking place in person, in face-to-face teaching. This teaching must be at a nonprofit educational institution, such as Wake Forest. If these conditions apply, instructors and students have rights to perform or display any works, provided the works were legally made and acquired. This means that instructors and students can play movies and music, show images and artwork, read poems and act out drama scenes, sing songs and dance choreographed movements. No permission or licensing is necessary. NOTE that this exemption does not apply to distributing copies (e.g., handing out course readings in class).

Once you move outside the physical, face-to-face teaching space, the Classroom Use Exemption also no longer applies. It does not apply to online teaching or to blended courses when interactions are online. It also does not apply to an LMS, such as Canvas. There is another exemption, known as the TEACH Act (17 U.S.C. §110(2)), that does create some rights for online teaching. But it is less permissive and more technical than the Classroom Use Exemption.

These blog posts provide examples how to appropriately use copyrighted materials in your online instruction:

In December 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act), stipulating that the U.S. Copyright Office establish the Copyright Claims Board (CCB). The CCB is a small claims tribunal for resolving copyright infringement disputes for up to $30,000 in damages. The intent is to provide a method for small-scale copyright claims to be brought by copyright owners that is less costly and burdensome than filing a federal copyright infringement lawsuit.

The CCB allows libraries and archives to preemptively opt-out of claims proceedings to cover both the institution and the employees of the libraries and archives who are doing work in the course of their employment. The same opt-out is NOT available to higher education institutions. This means that Wake Forest faculty, staff, and students may receive CCB claims for work that they do in the course of their scholarship, teaching, learning, and employment, as well as in their personal endeavors.

CCB notices will be issued differently in each state, according to each state’s notice procedures. In North Carolina, this means that CCB notices will be served in person by a designated official, usually a sheriff, or by registered or certified mail. For out-of-state students, we do not yet know if claims will be served to your permanent residence following your home state’s procedures, or will be served to your campus or Winston-Salem residence following North Carolina procedure.

If you receive a CCB claim, it means that a copyright owner is asserting that you have infringed their copyright. You are alleged to have done so by uploading, reproducing, publishing, copying, distributing, performing, or displaying a work. Receiving a notice does not mean that you have actually infringed or that the CCB will ultimately determine that you have infringed. You may have used their copyrighted work in a non-infringing way, either under a specific exemption or under fair use. Additionally, claimants may not actually hold copyright: the works may not be subject to copyright or copyright has expired, or the copyright is owned by a third party and not the claimant.

There are two options if you receive a claim: you may dispute the claim or opt out of the CCB proceeding. Do not ignore a properly-served notice, as you risk having a default judgment entered against you. This means you would be liable for all damages in the claim, up to $30,000, regardless of whether the assertions are true or not.

If you proceed within the CCB to dispute the claim, the case will be heard by the CCB. The CCB anticipates that most cases will be handled online, meaning you will not have to travel to Washington, D.C., where the U.S. Copyright Office is located. You will be bound by the CCB decision–all determinations are final. If the claimant wins, you may have to pay up to $15,000 per infringed work, with maximum damages of $30,000. Only in limited circumstances (e.g., fraud or misrepresentation) will a CCB determination be reviewed by a federal court or the Copyright Office.

It may be in your best interest to opt out of the CCB claim proceeding, which means that the claimant cannot file the same claim in the CCB and will have to file a federal copyright infringement suit if they wish to pursue their claim. For many claimants, that will not be possible or of interest. An opt-out may therefore end all actions for this particular claim. However, an opt-out does not apply to any future claims against you in the CCB–it is only for the particular claim you received.

If you are a Wake Forest faculty, staff, or student and have received a claim that is related to work you’ve undertaken in the course of your employment or enrollment, contact the University’s Office of General Counsel. NOTE that University counsel may not be available to assist individuals with claims.

Additional information on the Copyright Claims Board may be found on the Copyright Claims Board Frequently Asked Questions page.

The Copyright Policy of Wake Forest University is intended to:

  1. Encourage research and teaching by rewarding the authors of intellectual works, assisting them in implementing their ideas, and by providing a system for the encouragement of scholarship and creative activity;
  2. Serve the public interest by providing means through which intellectual works may be made available to the public; and
  3. Protect the rights of the University, its faculty, its staff, and its students with regard to intellectual works developed at the University.

The Copyright Policy applies to works that are “informational,” as defined in the policy. “Device-like” works are governed by the Inventions and Patent Policy. The Wake Forest University Intellectual Property Policy further defines informational “traditional works of scholarship,” as governed by the Copyright Policy, through examples such as “scholarly publications, journal articles, research bulletins, monographs, books, play scripts, theatrical productions, poems, works of music and art, and instructional materials in print or electronic format.”

Questions?

Contact Molly Keener, Director of Digital Initiatives & Scholarly Communications, for more information.

Many thanks to colleagues at Columbia University Libraries, Cornell University Library, the University of California Berkeley Library, the University of Minnesota Libraries, and Stanford University for first providing information on their respective websites that has been reused or linked to on this site.