What is copyright? When is text protected by copyright?
Copyright refers to the exclusive rights owned by the author or creator of a work. Only the copyright owner can authorize reproductions or different versions of a work, in part or in whole. A work is protected by copyright if it is an original expression and one that is fixed in a tangible form. Copyright exists automatically if the factors above occur even if the work is not published or has not been formally registered with the U.S. Copyright Office.
What types of works are not protected by copyright?
Copyright does not protect ideas, titles, short phrases, names, slogans, typography and United States government publications.
Who owns the copyright to a work?
Copyright is owned by the author of a literary work (as distinct from the owner of the physical book, manuscript, or letter) or the receiving party of a "work made for hire."
What is a "work made for hire"?
A "work made for hire," or a work the author was paid to create, constitutes an important exception to the basic rule that the author owns the copyright to his or her work. The rights to a work made for hire belong to the hiring party, not the author. Works for hire include works created by an employee as part of the employee's job responsibilities (e.g., a news article written by a salaried newspaper employee) as well as specially ordered or commissioned works where the contract specifically states that the work is a work made for hire. Other examples of works for hire include a contribution to a collective work (such a periodical or anthology), a translation or an instructional text.
How is copyright obtained?
Since 1978 a copyright has been obtained automatically as soon as a literary work (or a portion of it) is created by being fixed in a copy that can be visually perceived. You do not need to publish or register the work with the U.S. Copyright Office to obtain a copyright for it. Prior to 1978, to secure a copyright an author had to publish a work in the U.S. with a properly placed copyright notice and, for works published prior to 1964, renew the copyright within the 28th year following the date the copyright was originally secured.
What is copyright infringement?
Copyright infringement is unlawful copying, whether purposeful or accidental, of material that is protected by copyright. You are not protected from a copyright infringement suit if you give the author proper credit but fail to obtain his or her permission to reproduce the copyrighted work.
Must the permission I obtain be in writing?
Written permission provides you with the greatest possible legal protection. HACC requires that all permissions be provided in writing and signed by the copyright owner.
What are the factors used in evaluating whether the material I want to quote or closely paraphrase from a copyrighted work is fair use?
Courts take into consideration the following four factors found in the Copyright Act to determine whether a use is fair:
1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and
4. the effect of the use on the potential market for the copyrighted work.
What if the original author is deceased?
A work is very often still protected by copyright even if the author is no longer living; the copyright is then owned by the author's statutory heirs. Also, the rights to a work may belong to a corporation or partnership, or the copyright may be owned by the author's estate.
Can I freely use material I found on the Internet?
A work is protected by copyright if it is an original expression and one that is fixed in a tangible form. Although much material is distributed anonymously on the Web, it is still probably protected by copyright. This includes literary works, such as poetry and news articles, blog postings, song lyrics and advertising jingles, dramatic works and photos and other graphics.
How do I know who owns a copyright?
Library Staff can help in determining who owns the copyright to a particular work is crucial, as only the copyright owner can grant permission. Usually, you can safely assume that the author or publisher of a work is the copyright owner. Under most book publishing agreements, the author licenses the exclusive right to grant permission to the publisher. Keep in mind, however, that a copyright can be sold or transferred. In such a case, you would need to seek permission from the most recent copyright owner.
The best place to start your search is with the formal copyright notice, the familiar © accompanying the work; the notice provides the name of the copyright owner and the year of first publication of the work. If the copyright owner whose name appears on the notice is no longer the copyright owner, he or she may know who is. Also, the publisher of the book will most likely forward your request to the appropriate party. If the work has been registered with the U.S. Copyright Office, you'll probably be able to find the current copyright by searching the records database of the Copyright Office. Keep in mind that a work does not have to be registered to be copyrighted, so the work you're investigating may not be in this database. For more tips on this topic, read U.S. Copyright Office Circular 22, "How to Investigate the Copyright Status of a Work".
Where do I send a request to use text from a book?
If you plan to excerpt a section from a book, send a permission request to the publisher's permissions department. If the publisher's address isn't listed on the book's copyright page, consult a copy of the Literary Market Place (Bowker), available in most libraries. If rights to the material have reverted to the author, try contacting the Authors Registry, which maintains a database containing contact information for thousands of authors.
What if I want to excerpt material from a magazine or newspaper?
The rights to an article in a newspaper or magazine may belong to either the author or the publisher. Magazine and newspaper articles by in-house staff members are considered works made for hire, in which case the copyright would belong to the employer-publisher. In the case of an anthology or other collective work by an author who is not an employee of the publisher, the copyright owner is likely the author of that individual piece. To locate an author, search the database of the Authors Registry. You can also consult a recent edition of the Standard Periodicals Directory (Oxbridge).
How do I obtain rights to use a photo or graphic?
If the photo is accompanied by a credit line, this will probably give you the name of the photographer or photo agency you'll need to contact for permission to reprint the photo. To find contact information for a particular photographer or agency, search the information database of the Stock Photography Network. You can also contact the American Society of Media Photographers and search the online membership directory. If you're trying to locate a cartoonist or graphic artist, check out the Graphics Artists Guild. For permission to use a chart or graphic from a book or magazine, contact the publisher.
A word of caution: Other rights may be present in a photograph besides the copyright of the photographer. If the photo you plan to use features a model or a trademarked product, or invades someone's privacy, you should contact an expert photo researcher to help you clear these rights.
Do I need permission to use song lyrics? Whom should I contact and how do I request permission?
Any use of copyrighted song lyrics beyond one line requires permission from the music publisher. To find who holds the rights to a particular song, contact the American Society of Composers, Authors and Publishers (ASCAP) or Broadcast Music, Inc. (BMI). Song databases are available online at www.ascap.com and www.bmi.com. You can also check the liner notes to the CD or cassette to find out which society a songwriter belongs to.
A sample permissions request letter is included in this guide. This letter can be adapted to your particular request and mailed to the copyright owner. (Please note: Many book publishers will require use of their own permission form.) Consider attaching a photocopy of the material you plan to borrow demonstrating how it would be placed in the text of your manuscript. Common courtesy suggests providing a self-addressed, stamped envelope for easy return of your fulfilled permission request.
Can I use trademarked names or products in my book?
A trademark is a word or symbol that identifies a product or service of the trademark owner and is used to distinguish it from the products or services of others. A trademark prevents use of a product name, slogan, or symbol by a competitor and also protects against damage to public goodwill associated with a specific product or service. It is permissible for a fictional character to drink a Coke or read Sports Illustrated. Your legal risk would be increased, however, if your use could potentially injure public perception of a trademarked name or product or cause confusion as to the ownership of a trademark. Also, you are at risk if you use a trademark as part of the title or subtitle of your book.
What is in the public domain?
"Public domain" refers to works that are no longer protected by copyright. To determine whether a work from a U.S. author has entered public domain, you'll need to know the name of the author, the title of the work, and the year of its first publication. For more information, refer to the fair-use guidelines at the Stanford University Libraries. To take a simpler approach, assume that any work published in the United States after 1923 is under copyright.
What about foreign copyright duration?
If you want to use material from a foreign author's work, you must be certain the copyright has expired in both the United States and the country of first publication. Copyright protection may expire in the U.S. before it expires in other countries or vice versa. Because iUniverse distributes outside the U.S., it is essential to be sure you have obtained permission for material used from copyrighted works of foreign authors.
What are some resources I can use to locate public domain material?
For a wealth of information, search the various online catalogues of the Library of Congress. Project Gutenberg provides thousands of free eBooks. Although most of the books offered have entered the public domain in the U.S., a few are still under copyright, so be sure to check the copyright notices on any material you wish to use.
Other helpful sources:
Sources consulted include the Web site of the U.S. Copyright Office, The Copyright Permission and Libel Handbook: A Step-by-step Guide for Writers, Editors, and Publishers (Wiley & Sons, Inc.) by Lloyd Jassin and Steven Schechter, The Copyright Handbook: How to Protect & Use Written Works (Nolo) by Stephen Fishman, The Writer's Legal Guide (Allworth Press) by Tad Crawford and The Chicago Manual of Style, 15th ed. (The University of Chicago Press).
These are the answers to questions most commonly asked by authors. There may be times that you can't find the copyright owner or are unable to obtain permission for an excerpt or illustration that you wish to include in your manuscript. If that's the case, do what experienced authors and publishers do: Delete the material or adapt it so that it falls within the limits of fair use. Never include copyrighted material in your book without the express permission of the copyright owner.
