The courseware materials greatly enhanced the faculty member's teaching.
Many students were enthusiastic and seemed to be learning more. It wasn't
long before other faculty members, even some outside her institution,
became interested. She contacted the publisher of the textbook on which
she based the courseware materials to discuss publishing her work. They
were very interested but they asked many questions, some of which
- Questions from the publisher:
- Is she the only copyright owner of the materials?
- No, she is not, but she can get assignments from other owners.
- Did she use copyrightable expression belonging to someone else?
- Yes, she did - a lot of it in fact.
- Does she know who the copyright owner for each piece is?
- Well, that might take some time to figure out and she's not sure where to start.
- Has she gotten permission for all materials owned by others?
- Well, uh, she was relying on fair use for most of those materials. Why does she need permission now?
- And, of course, the publisher expects her fully to indemnify the publisher against any harms that might happen to a copyright owner if her work infringes the owner's rights.
- Fully indemnify? What exactly does that mean?
- Now she has a lot of questions too:
- What happened to fair use?
If she used the fair use test, she would see that
the first of the four
factors asks whether the work is for nonprofit educational
purposes or commercial purposes. The answer to this question affects the
evaluation of the other three factors. Sometimes a use that is
fair in a nonprofit educational context is not fair in a for-profit
commercial context. That's the nature of the test - change the facts
and the results change, sometimes dramatically.
limit their reliance on fair use to narrow circumstances such as using
short quotations in works of commentary and criticism.
- Does the publisher or the artist own copyright in illustrations in a book?
- She should remember that the author/artist owns copyright initially, though
the publisher might have required the artist to assign the copyright to the publisher as a condition of publishing his work. In general, she
should usually start with the publisher; if he says he does not
have the right to grant permission for a particular image, she'll need to
contact the artist.
- Whom do you ask for the right to use music in the
- Use of short clips of music may be a fair use. For more extensive uses, the music industry has an elaborate scheme for licensing rights. There
are performance rights, mechanical rights, synchronization rights and compulsory licenses to make
records, among others. The Harry Fox Agency in New York is authorized by
most music copyright owners to license the right to use their music as
She can find more information in Getting Permission.
- Where is that student author today?
- Good question. Good luck.
- Are any of the images in the public domain?
- For materials that were published before March 1, 1989, the absence of a
copyright notice would, in most cases, place the work in the
public domain. Other works published before 1923 would also be
in the public domain. There's a handy chart online that
explains more about When Works Pass Into the Public Domain.
Unpublished works created before 1978 begin to pass into the
public domain on December 31, 2002.
- What if she can't locate an owner or doesn't get a response; who
decides how much risk is acceptable?
- There is risk involved in everything we do. In this area, we prefer to
eliminate it altogether. If it cannot be completely eliminated, it
should be up to those who will have to pay the cost of an infringement
lawsuit to decide the level of risk with which they are
comfortable. For example, the University has accepted a certain level of
risk by creating its Copyright Policy with explanations of
how to use the fair use test. Similarly, publishers decide to accept a certain level
of risk when they establish their policies that set word limits
for unlicensed quotations.
An unlocated or unresponsive copyright owner presents a risk that the
owner will some day "appear" and be upset with a use of his or
her work. This may not be a great risk, especially when a thorough search
has revealed no owner. Nevertheless, it's a decision in which the
University or the publisher should participate, not one for the
faculty member alone.
- What if someone says no?
- If the faculty member decided that the use was not fair and therefore she
had to ask permission and the owner says no, that's the end
On the other hand, if there is a reasonable argument to be made that the
use is fair, and she was asking permission to be on the safe
side (since fair use is always somewhat nebulous), she can still rely on
fair use even if the owner says no. She should be very sure of
herself in this instance, however, because she may very well be challenged
regarding the use.