Frequently Asked Questions on Copyright

Determining who holds the copyright is obvious when the work is recent and has a copyright notice. But sometimes it becomes detective work and may take time, and scholars need to be prepared for this.

Copyright notices (©1963 Jane Doe) traditionally served to identify initial copyright holders in publications but they are no longer a required on published works in the United States. Copyright notices were never required on unpublished works. Also, over time, copyrights may have been transferred in part or in whole to other people or entities, or inherited by heirs. The older a work is, the harder it may be to identify the current copyright holder or copyright holders.

There is no comprehensive national or international registry for copyright ownership, transfers, or inheritance. The copyright registration records of the U.S. Copyright Office may hold information. Other helpful sources are the WATCH database, a database of copyright contacts for writers, artists, and prominent people in other creative fields, and the Firms Out of Business database. The websites of ASCAP, BMI, and SESAC are a source of information for music compositions in the respective repertories. In sound recordings there are copyrights in both the recording and the underlying musical compositions. In films typically the production company holds the copyright through contracts signed with contributors who were eligible for initial copyright, such the director, the scriptwriters, and the musical composer, and with performers. Some investigation may be necessary.

It is not always obvious who holds copyright in a work. Scholars need to allow time for investigating works if they need to obtain permissions. Keep in mind that it is not necessary to obtain permissions if works are being used under a copyright exception or if your publisher agrees that permissions are not necessary.

In the United States, works published before 1926 are generally in the public domain, with the exception of sound recordings fixed in the U.S. before February 15, 1972 which are protected by state law.  Copyright terms for unpublished works are treated differently. Copyright terms are explained in Chapter 3 of the U.S. copyright law.

In other countries, the national law applies. Each country has its own definition of the public domain that applies within its borders, including to foreign works used in that country. Thus a work of which the country of origin is Argentina is protected in Argentina under Argentinean law, in France under French law, and in the U.S. under U.S. law. The work may be in the public domain in one country and not in another. When using works globally, you may need to consider public domain status in other countries. See FAQ on “How should I handle international works in research and publication?”

With the help of this chart that simplifies those rules, you may more easily determine whether a work, created in the U.S. or created in another country, is in the public domain in the U.S.:

• Peter Hirtle, “Copyright Term and the Public Domain in the United States”

Works that are sufficiently creative and original obtain copyright protection automatically, from the moment they are created and fixed in a tangible form that is perceptible directly or with the use of a machine or device. Registration is not required as a condition for obtaining copyright.

However, there are certain benefits to copyright registration. First, registration establishes a public record of the copyright claim. Second, registration provides certain advantages in the event that your copyright is infringed. Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin. If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in successful litigation. Otherwise, only an award of actual damages and profits is available to the copyright owner. For more information, see the U.S. Copyright Office Circular 1, “Copyright Basics”.

The scholarly process involves assimilating and building on previous scholarship. This typically means quoting other authors, illustrating ideas with images (photographs, charts, diagrams, graphs, maps), utilizing previously created data, and incorporating musical works, sound recordings, and audiovisual works into your work.  Reproducing copyrighted works in research and scholarship is supported by the fair use exception within certain limits.

Because U.S. dissertations today are considered “published” when they are submitted to a university digital repository and made publicly available unless the author chooses an embargo, dissertation authors need to make fair use assessments for the works they include in their dissertations. General rules of thumb:

• Fair use supports use of an amount appropriate to your research objectives and closely tied to critical analysis.
• Always provide attribution in the form of a citation.
• Use of archival material also customarily involves a credit line to the archive.
• Ensure that there are no concerns related to privacy and publicity rights, confidentiality, patents, trademarks, contracts, licenses, or other laws or regulations that would violate the rights of others.
• Uses should not interfere with the market for the original work.
• If any license agreement applies to the works you wish to use, you need to consult the license terms. Many online licenses permit noncommercial scholarly uses or fair use of works, and this means that you should not need to obtain permission if you stay within a reasonable understanding of fair use.
• Generally you should not alter or modify any third party work being used in your dissertation without permission from the copyright holder.

Fair use is a case-by-case assessment for each situation in which someone wants to use a copyrighted image in a scholarly article or book.  It may be fair or it may not be fair, depending on the circumstances.  Also, sometimes it is not a question of whether the use may be a “fair use.” If you are using a licensed resource, the terms and conditions of the license indicate whether the use is permitted.

In self-publishing scenarios, you make the decision on fair use for images using the four-factor analysis: purpose of the use, nature of the work, amount and substantiality of the portion used,  and effect on the market or potential market for the work. Typical considerations in this analysis are the age of the image, source of the image, whether it is possible to identify or locate the creator or copyright holder, and whether it is possible to obtain a permission/license for the use.

At one extreme, if the image is an old but still copyrighted photograph that was first published in a book decades ago and is out of print, if the original publisher went out of business long ago and there is no available information on a current copyright holder, if there is no information on who even created the original image, if there is no possibility for obtaining a permission/license, and if your use is closely tied to your critical analysis, it is easy to reason that the use might be fair.

On the other hand, if the image you wish to use is a complex 10-page chart first published recently in a book that is being marketed, if the license in the e-book version indicates that any use of the charts requires permission, and if the permission is easily obtainable through the original publisher or through the Copyright Clearance Center, it is difficult to justify that the use is fair. Most situations fall somewhere between these extremes.

In traditional publishing scenarios, publishers make the final decisions on whether images may be included in the manuscript. Publishers are concerned about infringement and particularly about liability resulting from providing global access to copyrighted works. A traditional publisher might:

• insist that you obtain permissions, or
• treat use of the work as a fair use in the U.S., publish without permissions and without your having to indemnify the publisher against legal damages, or
• treat the use as a fair use in the U.S. on the condition that you indemnify the publisher against legal damages in the publication agreement (this is your decision), or
• include the image if a case can convincingly be made that the copyright holder cannot be identified or located (that the work is an “orphan work”) and that permissions cannot be obtained. In this case the publisher might ask you for evidence of work done to identify or locate the copyright holder.
• In the end, the decision on whether to proceed under a rationale of fair use usually rests with the publisher.

In cases where use of a copyrighted work exceeds what would reasonably considered to be a fair use and no other copyright exception applies to your use, or if a publisher insists on your obtaining written permissions as a condition for publication, or if any contract or license associated with the copyrighted work requires that permission be obtained, you will need to obtain permissions from rightsholders.

One way is to contact directly the current copyright holder if you can identify and locate that entity, which may be an individual or individuals or an organization. Often it is a publisher. This may or may not involve payment. In some cases permissions may be obtained through the Copyright Clearance Center or another collective management organization that offers permissions services for works it manages. For international works, IFRRO is the main international network of collective management organizations that facilitates permissions for copyrighted material.

It is sometimes difficult to obtain permission for older works, works of small publishers, works of publishers that no longer exist, and for many types of foreign works.  It may be difficult even to identify or locate a current copyright holder for older works. In cases where it is not possible to obtain permission, identify or locate a current copyright holder, authors need to be prepared to make realistic decisions about use of a particular work. In traditional publishing scenarios, often your publisher is the “gatekeeper” on this issue. If the publisher is willing to proceed without permissions, that is the publisher’s decision. If the publisher insists on your obtaining permissions, then it becomes your responsibility to obtain them or to forego inclusion of the work.

Remember that using short excerpts of published works as quotations, with attribution, is generally accepted as a fair use and does not require permission. There are more considerations for unpublished works, such as the right of consent to first publication, privacy, and confidentiality issues.

Copyright permission requests and permissions should be made in writing. Email is an acceptable form of communication. This is a basic template for a permissions request for an article or book publication.

Nearly all countries have copyright laws that protect the rights of authors and creators of works. Copyright laws differ from country to country; no two are alike. National copyright laws apply on the territory of each country. U.S. copyright law applies for uses of works within the United States.

Because many uses made of works today involve global display and distribution, it is sometimes necessary to think beyond the provisions of U.S. law. When using in your own publication a work created or first published in another country, you may need to determine the copyright status and copyright term of the work in the country of origin and in any other country where an infringement claim might be made. Publishers may ask you to do this because they have concerns about global access to copyrighted works and liability resulting from possible infringement. You may even learn that the work you wish to use is in the public domain in other countries.

The U.S. fair use exception applies only to uses in the United States but fair use is not an international copyright exception. Using international works in research and publication increases the need to obtain permissions if the works may still be protected by copyright and/or if the use will be global in scope.

Some publishers require an author to transfer their copyright as a condition for publication, while others sign nonexclusive licenses with authors for the right to first publish the author’s work. Sometimes authors are able to negotiate with publishers on this point and sometimes it is not possible. Retaining copyright rather than transferring to a publisher may leave the author with more flexibility with respect to future uses, but even if copyright is transferred to a publisher, significant flexibility may be built into the publication agreement. Your options are:

Choose an open access publication option. Some journal and book publishers offer both traditional publication and open access publication.  The open access option may require an author publication fee or may offer reduced royalty rates to authors but allow the author to retain copyright. Check publishers’ websites to see whether they offer open access publishing and what the terms of this option are.

Publish in an open access journal. Open access journals generally operate on the principle that authors retain copyright and assign a non-exclusive license for publication of the work. Consult the Directory of Open Access Journals, an online directory of high quality, open access, peer-reviewed journals.

Negotiate with the publisher. Raise the issue with the publisher prior to signing a publication agreement and try to negotiate retention of copyright in the agreement.

Use an author’s addendum. An author’s addendum is a legal attachment to a publication agreement that modifies the terms of the publication agreement. Publishers may or may not agree to use of an author addendum. You will need to discuss this with your publisher. Recommended language may be found in the BTAA Author’s Copyright Contract Addendum.

The open access movement is based on the idea of unrestricted online access to peer-reviewed scholarly research. It exists alongside traditional scholarly publishing practice, based on the work of publishers who produce scholarly works and control distribution of those works nationally and internationally.

Dissertations. New possibilities for open access dissertations exist alongside traditional practices. Dissertations are now considered published by many universities who have developed open access digital repositories that replaced the print submission process. Unless the dissertation author chooses to embargo the submitted dissertation, it may be made available for global public access upon submission. Alongside open access dissertations, many universities continue to support publication by the ProQuest Dissertations & Theses Database, a historical national archive of theses and dissertations that has existed since 1938. ProQuest offers a Traditional Publishing and Open Access Publishing options for dissertation authors.

Scholarly articles. Your options are to:

• Choose an open access option. Some journal publishers offer both traditional publication and open access publication.  The open access option may require an author publication fee. Check publishers’ websites to see whether they offer open access publishing and what the terms of this option are.
• Publish in an open access journal. See the Directory of Open Access Journals.
• Use an author’s addendum. An author’s addendum is a legal attachment to a publication agreement that modifies the terms of the publication agreement. Publishers may or may not agree to use of an author addendum. You will need to discuss this with your publisher. Recommended language may be found in the BTAA Author’s Copyright Contract Addendum.
• Deposit a legal copy of your scholarly article in the Rutgers University open access repository through the SOAR (Scholarly Open Access at Rutgers) portal.

Books. Your options are to:

• Choose an open access publication option. Some book publishers offer open access publication.  The open access option may require an author publication fee or offer reduced royalty rates to authors but allow the author to retain copyright. Check publishers’ websites to see whether they offer open access publishing and what the terms of this option are. Also refer to the Directory of Open Access Books that indexes academic, peer reviewed, open access books.
• Self-publishing of works has become a viable option for some scholars interested in taking a more independent approach to distributing their works. Open access e-publishing platforms keep you in control of the copyrights and the access mechanisms.
• Create or adopt an open educational resource. The Open and Affordable Textbooks Program awards research funds to Rutgers faculty who make their courses more affordable for their students by using low-cost materials, library content, or open educational resources (OER).

Rutgers guidelines on streaming audiovisual works are based on a legal interpretation of current law. Rutgers guidelines support streaming films and video in course management systems for university courses in the following circumstances:

• If the use is integral to the course and directly related to instructional goals
• if the work is in the public domain;
• if the copyright holder has given permission;
• if the instructor is the copyright holder;
• if there is a public performance or a streaming license associated with the work;
• if the online license terms and conditions allow for the use and the material has been lawfully made and lawfully made publicly available; or
• for use of short excerpts that could reasonably fall within fair use.

Rutgers does not authorize streaming entire audiovisual works in the course management system, on e-reserves, on websites, or elsewhere without a public performance or streaming license. Exceptions may be appropriate in situations where public performance or streaming licenses are found not to be available after a reasonable effort to identify a licensor, and for which there is no other form of access and no acceptable alternative for viewing other than temporary streaming through a Rutgers server.

Instructors must also:

• Limit access to students in the class
• Limit access to the term of the class and then disable access
• Provide a written notice on the file or on the syllabus prohibiting further distribution, for example: “This material is subject to the copyright law of the United States (Title 17 U.S. Code) and is for use of students in English 101 only. Further reproduction or distribution is prohibited.”
• Inform students that copyright law applies to the work.

See Copyright in Teaching for more information.

Google Images is a search engine that brings together images from other websites in response to a search request, but it is not an image database. You should navigate to the source website, read its terms and conditions to see whether it permits the use you have in mind, and contact the website owner if permission is needed. You should cite the original source, not Google Images.

Each website on the Internet has its own terms and conditions for use of materials it hosts.

Some websites offer unrestricted use of the materials on the site. Some websites prohibit use of any material from the website without permission. Websites indicate what uses are permitted through online licenses or instructions on the website.

Online licenses. You should always check to see if there is an online license associated with the website or the individual work. The license is typically viewable through a link to “terms and conditions” or “terms of use” on the bottom section of the website. There may be a Creative Commons license attached to the website or the individual work, viewable in the form of a Creative Commons icon. These licenses tell you what you may and may not do with the content and you need to read them.

Unlicensed websites. Some websites function without an online license but offer instructions to users as to permitted uses of the content. If there is no online license associated with the work, you should be guided by the instructions on the website. Copyright law applies directly to use of unlicensed works. Refer to Copyright Basics for further information.

Legal and illegal websites. Often websites claim to permit uses of works they host but they do not have rights to offer the works to Internet users. Many websites host material illegally to make advertising revenue. They function like black markets. There is a lot of money to make out of exploiting honest creators and publishers. You need to exercise good judgment in distinguishing between works that have been posted to the internet legally and illegally. Please don’t use illegal sites.

Instructors can’t require students to place their coursework (papers, assignments, projects) or theses on the open Internet or on open access platforms. Copyright law and federal privacy law reinforce student rights in their coursework and theses. Students may not be mandated to make their coursework or theses publicly available.

Copyright law applies to student works. Students hold the copyrights in all the work they create for classes. The decision to publicly display or distribute coursework or theses is the student’s to make. Decisions on public availability of a student’s work are voluntary on the part of the student.

In addition, the Federal Family Educational and Privacy Rights Act of 1974 (FERPA) exists to protect the privacy of student educational records. Educational records include coursework, papers, assignments, projects, and theses.

Departments and units are responsible for ensuring that videotaping and photographing is done in appropriate circumstances and that no such taping or recording infringes someone else's rights or otherwise violates the law. Departments wishing to videotape and photograph presentations and events for posting on a Rutgers website should obtain releases from speakers and presenters, and if copyrighted content is captured in the recordings, copyright permissions should be obtained from presenters.

In addition, if audience members will be filmed or recorded, event organizers should inform the audience. For example, if there will be a Q&A session, it is appropriate to post and/or announce that the panel discussion is being video recorded by Rutgers, that there will be a Q&A period at the end of the session, and that if audience members participate in that Q&A period, they are indicating their willingness to be recorded and giving permission to include their comments in the video recording that will be made publicly available on the Internet. Alternatives are not to film the event, or to film only the presenters, or to shut off the cameras when the Q&A starts so as not to capture audience members.

Departments wishing to include copyrighted text, images, or video on a Rutgers website need to ensure that they have the rights from copyright holders to make the works publicly available or that the use has reasonably been determined to be a fair use under U.S. copyright law. In addition, if any images or video contains live persons, the department should obtain releases for use of the images and voices.

Please be aware that scholarly articles and resources from Rutgers University Libraries databases are governed by licenses that generally restrict uses to Rutgers faculty, staff, and students and do not permit re-use on public websites. You may not take licensed material from RUL databases and re-post to a website.

YouTube has a policy for placing material on the site with which users must comply, offered in its Terms. Rutgers University units have YouTube channels and the same rules apply.

Social media site have developed policies for placing material on their sites, available by referring to “Terms” or “Terms and Conditions” on those sites. For example, Facebook has a Terms of Service. Generally rules are that any material posted must be created by the user or posted with the permission of the copyright holder and no material may be posted that infringes someone else's rights or otherwise violates the law.