This is a (very) short exposition of certain areas of intellectual property law that may be useful to you in the course of your time at ASU. It is meant to familiarize you with the kinds of issues that often arise in the academic environment and to provide a starting point for further research on the subject(s). This is not legal advice, nor should it be used in place of consultation with an attorney licensed in the appropriate jurisdiction.
What is copyright?
Copyright is the exclusive right of the author or owner of a work of authorship to use (i.e., copy, distribute, perform, display, adapt, etc.) or sell the work, though only for a limited time. The goal is to balance the economic incentive to produce such works with the social benefit of disseminating such works as widely as possible to further art and science.
Where does copyright law come from?
There are many sources of copyright law, including the Copyright Act of 1909, the Copyright Act of 1976 (and amendments thereto), the Berne Convention, GATT, etc. Discussed here are certain of the rules set out by the Copyright Act of 1976 (as amended), which became effective January 1, 1978, meaning that it applies to works created on or after that date.
What is a work of authorship?
The Copyright Act simply gives an illustrative list of works of authorship that are afforded copyright protection in lieu of a definition. The list includes literary works, music, plays, choreography, photos, paintings, sculptures, movies, sound recordings, and architectural designs. For other types of works, such as useful inventions (protected by patents) or logos and mottos (trademarks) there are other legal regimens. Here, we are talking only about copyright.
What are the criteria for determining whether a work is copyrightable?
“Original works of authorship fixed in any tangible medium of expression” are afforded copyright protection under §102 of the 1976 Act. Specifically, the work must be (1) original and (2) fixed in a tangible medium.
What is originality?
Originality means both that the author engaged in some endeavor to produce the work and that there is some level of creativity associated with the work. For instance, a phone book may require one to endeavor to compile a list of names and numbers and arrange them alphabetically, but because there is no creative component, a phone book is not generally copyrightable.
What is Fixation?
Fixation means that an author commits a work to a sufficiently permanent form, whether it is written, recorded, molded, or pictorial. A poem recited verbally and publicly yet not fixed in a tangible medium would not qualify for copyright protection under the 1976 Act (though state statutes may extend some protection).
Who owns a work (and its copyright)?
Generally, an author who conceives of a work and fixes it in a tangible medium owns the copyright to that work.
What if the work was written for an employer?
If a work is “made for hire,” i.e., written by someone in the course and scope of employment, the employer owns the copyright to the work. Traditionally in academia there has been a widely practiced exception to this rule (some label it the “Teacher’s Exception”) wherein scholarly works created by faculty have been recognized as the intellectual property of the faculty member rather than the university (as employer). However, this is not settled law and many universities, in order to support faculty authorship and avoid disputes, have adopted policies which clarify ownership under various circumstances. The Arizona Board of Regents has done so for Arizona Universities, in Policy No. 6-908, which can be viewed in its entirety at: http://www.abor.asu.edu/1_the_regents/policymanual/chap6/6-908.pdf. For more information on this and related issues, visit the American Association of University Professors website: http://www.aaup.org/Legal/info%20outlines/outlineindex.htm.
Who owns a work created by an independent contractor?
If a work is commissioned and paid for by someone other than the author of the work (but not the employer of the author), the general rule is that the creator (or “independent contractor”) owns the work, and not the commissioning party. In such a case, the parties should enter a written agreement governing creation of the work AND the transfer of the copyright. Unless the agreement expressly provides for transfer of the copyright (in addition to the creation of the work) the person or entity who paid for the work may not own the copyright in it (an express agreement regarding transfer of the copyright is necessary, regardless of how much is paid for the creation of the work).
What if the work is jointly authored?
If more than one author contributes to a work and each intends the contribution to be part of a single, whole work, then the authors own the copyright jointly. This means that either author may, for instance, sell, perform, copy, or display the work without obtaining permission from the other author, though the other author would be entitled to a portion of any proceeds derived from the work in such ways. It is important to note here that the intent for one’s contribution to be part of a single whole work is necessary—contributions not intended to serve as an integral part of a work of joint authorship are separately owned parts of a “collective work.”
How long does copyright last?
The term of copyright can vary depending on when and where the work of authorship was created or published, the type of work, and the identity of the author of the work. For most works published on or after January 1, 1978, copyright lasts for the life of the author plus 70 years. For works made for hire, and also for anonymous or pseudonymous works, the copyright will last 95 years from the date of publication or 120 years from the date of creation, whichever expires first. These periods will apply to your newly created works.
For works published or registered before 1978, the determination of the length of copyright may be quite complex, due to various exceptions and numerous laws creating extensions and restorations of copyright. As a general rule however, the copyright for pre-1978 works will last 95 years from the date of publication or 120 years from the date of creation, whichever expires first. For instructions on researching the copyright status of a particular work, visit the U.S. Copyright Office at: http://www.copyright.gov/circs/circ22.html
For sound recordings created in the United States after February 15, 1972, copyright protection attaches as noted above. There is no federal copyright protection for U.S. sound recordings made prior to that date, though state laws or common law doctrines may apply.
Is a copyright notice required?
No, but it has been in the past, and therefore still affects the determination of copyright for some works today. In general, works published prior to March 1, 1989 must have been accompanied by a copyright notice or else copyright protection was lost. However, copyright for certain foreign works published without notice prior to March 1, 1989, has been restored pursuant to international treaty. Ultimately, it is still valuable to include a copyright notice, and the important elements are: the copyright symbol (the letter “c” in a circle for visually perceptible works, and the letter “p” in a circle for sound recordings), the year of first publication, and the name or initials of the copyright owner.
What is registration?
A work can be registered with the U.S. Copyright Office at any time, but if it is within certain prescribed time limits, several advantages accrue to the copyright holder, including the ability to seek attorney’s fees in an infringement action and the fact that the registration may serve as prima facie evidence of the validity of the copyright. Registration requires the submission of the proper form, along with a fee, and a complete copy of the work.
Can I sell or transfer all or part of my copyright?
Yes. The owner of a copyright may grant a license for others to use the work in limited ways (or without limitation), may sell or transfer some rights while retaining others, or may transfer the entire bundle of rights (usually referred to as an assignment). Some publishers may seek to have authors make a complete assignment of their copyright to the publisher, which could restrict the author from using the article in many ways. For instance, an author that makes a complete assignment may not be able to post the article on an individual or class website, archive the article electronically, or freely transfer copies of the article in paper or electronic format, without permission from the new copyright holder—the publisher. There are many resources on the web which discuss these issues and some that offer sample licenses with less restrictive transfers. Links to some of these sites are included under the “Additional Information” section below.
What is Fair Use?
Fair Use is a doctrine that provides that certain types of uses, though otherwise violations of copyright, are permissible. The purpose of Fair Use is to permit “criticism, comment, news reporting, teaching . . . scholarship [and] research. . . .” §107 U.S. Copyright Act (1976). The specific parameters of Fair Use are not defined by the Act. Rather, four factors are to be considered: (1) the purpose and character of the use (importantly whether the use is commercial or noncommercial), (2) the nature the work, (3) the amount and substantiality of the portion of the work used, and (4) the effect of the use on the market for the work.
The scheme is meant to provide flexibility, though it also creates some uncertainty. To address this uncertainty, publishers and educators created “Classroom Guidelines” which state the minimum permissible use in the classroom—Fair Use may be much more broad, but the Guidelines provide a “Safe Harbor.” The Guidelines can be found at: http://www.copyright.gov/circs/circ21.pdf
Additional Information and Resources
Links to resources on the web are provided in order to help you familiarize yourself with the issues surrounding copyright, including the format and provisions typical of copyright licenses. ASU has no control over the content of any of the linked sites and does not take responsibility for accuracy or validity of information or advice posted on these sites. As always, this information is provided as a starting point for personal research and is not meant to be used in place of individualized legal advice.
- The U.S. Copyright Office maintains an extremely useful website with access to the latest government circulars regarding copyright. Circulars are available which address many issues in great detail, including those mentioned above.
- Creative Commons is a nonprofit organization created to promote reasonable copyright, founded in large part by noted intellectual property attorney Lawrence Lessig. The website offers advice, discussion, and free tools, which include copyright licenses for authors: http://creativecommons.org/
- An offshoot of the Creative Commons project specifically focused on science. The website offers advice, discussion, and free tools, which include copyright licenses for scientists: http://sciencecommons.org/
- ASU’s Noble Science Library has a webpage on copyright: http://www.asu.edu/lib/noble/ip/copyright.htm
- ASU Libraries offer access to many excellent e-books on the subject of copyright through our libraries’ catalogue (click on the resource and type “copyright” in the search field):
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