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Using Copyrighted Works of Others

Unauthorized use or distribution of copyrighted works is illegal and may be considered a criminal act.

Copyright law grants the exclusive right to use, copy, distribute, display and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work. Certain uses of copyrighted works do not require permission from the copyright owner and these uses are known as 'Fair Use.'

Libraries are given special exemptions under Fair Use and your campus librarian can assist you in determining fair uses of library holdings.

How do I know what is copyrighted?

It is important to remember that all text, software, audiovisual works, photographs, digital images and sounds are granted copyright protection as soon as they are created and all works created after 1978 are protected automatically. A work does not need to bear a copyright notice to be protected. Unless you know for a fact that the work is in the public domain, assume it is copyrighted and you must obtain permission to use the work.

How do I use something legally?

You must seek permission from the copyright owner to use the work. For publications in books or journals, generally the publisher is the owner of the copyrights and can grant permission for your use. If the publisher is not the copyright owner, they can probably direct you to the copyright owner.

Depending on the nature of the work, permission may be required from more than one source. For example, if you wish to use a photo from a magazine, the publisher may own the copyright on the photo but if the subject of the photo is a well known person, you may also need to obtain permission from the individual in the photo and the photographer. Obtaining permission to use a popular recording of a song may require permission from the composer, the lyricist and the performer. Film clips may require permission from the producer and the actors, as well as the owners of the rights in the music if music is a part of the film clip.

When seeking permission to use a copyrighted work, you must provide specific information on your intended use of the work. You should describe in detail what you want to use, how many copies you intend to make, how the work will be distributed, and for what fee, if any. You should also state whether or not the project is for educational or commercial use. Depending on your intended use, the owner may or may not grant you permission and they may or may not charge a fee to grant the permission. Fees may include a one time charge or a percentage of your profits (royalties.) It is also important to remember that you will only be granted permission for the use you specify. Different or additional uses in the future will require separate permission.

If you are creating a work on behalf of the University, refer to the list of UC Copyright Contacts to locate the office on your campus to assist you in obtaining permission and in any contractual negotiations, including payment of fees and royalties.

What is Fair Use?

Certain uses of copyrighted works are not considered to infringe the rights of the copyright owner and are allowed under copyright law as Fair Use. From the text of the Copyright Act of 1976, as Amended, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means, 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 Use is a common defense in copyright infringement lawsuits. It is important to understand that the law does not grant individuals the right to determine if they are making a fair use of a copyrighted work, rather, it provides guidelines for courts to make this decision on a case by case basis. Fair Use analysis is not simple and the outcome of a Fair Use defense is not predictable. It is unwise to assume that you are not infringing a copyright unless the specific use has been determined by case law to be non-infringing based on Fair Use, such as video taping television broadcasts for home use or copying a portion of a work to provided comment or criticism.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered include:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  • the nature of the copyrighted work
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • the effect of the use upon the potential market for or value of the copyrighted work

The Supreme Court has established the effect on the market value of the work to be the most important of these factors. It is important to understand that just because you may wish to use a work for educational purposes, it is not automatically a fair use of the work. For example, recent litigation has found that copying a work in its entirety rather than buying the book or journal, is not a fair use, even if it is copied for educational purposes. In another case, it was found to be infringing to copy and distribute copies of journal articles for many people in an organization when only one copy of the journal was purchased.

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