Copy Quiz

  1. Copyright status is only granted to well-known authors and filmmakers.
    False. Copyright is granted to anyone who records an original creative work in a fixed, tangible form.
  2. The Motion Picture Association of America has anti-piracy sniffing dogs.
    True. According to the MPAA, they've trained two black Labradors named "Lucky" and "Flo" to sniff out DVD piracy.
  3. Sam buys a new band's CD but decides he doesn't like the singer, so he resells the CD on eBay. That's legal.
    True. Reselling a CD that you bought is legal according to the First Sale Doctrine.
  4. The sole purpose of copyright is to make authors money and protect them from getting their works stolen.
    False. Copyright was established to encourage the growth of science, education, and the arts.
  5. Amy tells Daniel about her summer vacation, and he says he'd love to see her pictures. Amy uses a peer-to-peer (P2P) file-sharing program to upload the photographs she took at camp so he can download them. That's copyright infringement.
    False. Sharing your own original work using peer-to-peer file-sharing technology is legal.
  6. Amy tells Daniel that the files are available. Daniel uses the same peer-to-peer file-sharing program to download Amy's camp pictures. That's copyright infringement.
    False. Amy took the pictures, so she's the copyright holder, and she's given Daniel permission to download.
  7. Jason copies the entire last chapter from the final Harry Potter book to his commercial blog without any additional commentary. Since he only used part of the work, Jason would be protected by fair use.
    False. Given the amount and significance of the portion Jason has taken, the commercial benefit he would receive, and the likely harm to the market for the Harry Potter book, a court would be unlikely to view his use as a fair use.
  8. Kathy downloaded a few photos of local organic farms from Flickr.com's Creative Commons (CC) pool. She follows the rules of the photographer's specific CC license and uses them in her digital video about sustainable agriculture. That's OK.
    True. Kathy can legally use the photos as long as she follows the rules of the license.
  9. Dwight finds a peer-to-peer (P2P) network that offers free music downloads. He owns all but one of his favorite band's CDs, and he finds that particular CD on the network. He's too cheap to buy it, so he downloads the songs. He's not committing copyright infringement.
    False. Unless Dwight has permission from the copyright holders (band/publisher/songwriter etc.) it would be copyright infringement.
  10. Paula read an interesting article about the making of the film Titanic and wants to use a short quote in her cinema review paper for journalism class. That's copyright infringement.
    False. Since she's using a short quotation for the purpose of scholastic commentary, it would be fair use.
  11. The Public Domain is a polar research station in Antarctica.
    False! Public Domain refers to works that are not subject to copyright restrictions, so they are free to use. Public domain material can include works that are not copyrightable, are designated for free and unlimited public access by the creator, or are no longer protected by copyright law because the copyright status has expired or been forfeited by the owner.
  12. Adam recorded a video for his YouTube channel about the upcoming Senate elections and includes an official photo taken by a government employee and four bills authored by the incumbent that Adam found on the Senate's website. That's copyright infringement.
    False. Works produced by the U.S. government, or any U.S. government agency, are in the public domain. The texts of legal cases and statutes produced by the federal government are also in the public domain.
  13. Justin downloaded the black-and-white horror classic Night of the Living Dead from the Internet Archive and decided to mix an audio sample from the film into one of his original songs. That's copyright infringement.
    False. The copyright for Night of the Living Dead is part of the wonderful wealth of the public domain. Justin is free to be as creative as he wants with public domain material.
  14. Since Richard forgot to register his screenplay before he sent it out to agents for review, he's no longer eligible to copyright it.
    False. Copyright protection is automatic once your original work is in a fixed, tangible form.

Copyright History Worksheet

  1. Why did the framers include copyright in the Constitution? Why did they think it was necessary at the time?
  2. How did Thomas Jefferson influence early copyright philosophy?
  3. Both articles talk about copyright's origin as a "balance" between the rights of creators/copyright holders and the public/users, but the articles also explain how that balance has shifted. What are some examples of that shift?

Law and Technology Timeline

The law and technology timeline depicts technological milestones and major changes in copyright law and policy in parallel, giving students a tool to think critically about the relationship between innovation and copyright law.

Download the Law and Technology Timeline PDF.

Technology History Worksheet

Who invented, created, or sponsored the technology?

What was the technology designed to do? How was it used?

Who would benefit from using this technology?

What kinds of companies or organizations (stakeholders) might have been concerned about the development of this technology? Why?

Did an aspect of copyright law play a role in controversies about the technology? How?

Where did you find the above information? Provide the sources/citations for your research:

Stakeholders Worksheet

For this exercise, assume your stakeholder's perspective on the issue of music downloading and peer-to-peer (P2P) file-sharing. Research your stakeholder's opinions and arguments. Be prepared to discuss your group's position with others in the class.

  1. What is your group's mission? Who do you represent?
  2. What is your group's opinion on the current state of copyright law and peer-to-peer (P2P) filesharing?
  3. How does your group want to change copyright law? Why? What are the benefits of your group's approach?

Examples of copyright policy stakeholders:

  1. Government
    • United States Copyright Office
    • Members of Congress
  2. Industry
    • Motion Picture Association of America (MPAA)
    • Recording Industry Association of America (RIAA)
  3. Creators
    • Major & Independent Music Artists
    • Authors
    • Song Writers
    • Filmmakers
    • Film producers
    • Actors
  4. Nonprofit Public Advocacy Groups
    • Electronic Frontier Foundation (EFF)
    • Creative Commons
    • Students for Free Culture
    • Future of Music Coalition
    • Defective by Design
    • Copyright Alliance
  5. Academic
    • Universities & Students
  6. Businesses
    • ISPs (Comcast, AT&T, AOL etc.) 
    • Technology companies (Apple, Microsoft etc.)
  7. Legal Community
    • Lawyers representing companies developing or using file-sharing technology
    • Lawyers representing file-sharers accused of infringement
    • Lawyers representing copyright owners who believe their works have been infringed

Trial Guide

Walt Disney Studios v. Faden is a fictional case where you will be putting Professor Faden's "A Fair(y) Use Tale" digital mashup to the test in a mock trial. Use what you now know about the fair use "four factors" and the stakeholders who are currently battling over copyright and fair use in the courts. Also feel free to include research from relevant articles or actual fair use court cases.

Your teacher will assign you trial roles. There will be two trial teams – one representing the plaintiff and the other representing the defendant. Each team will have four attorneys and one plaintiff or defendant. The remaining students will serve as jurors, decide the final verdict at the end of trial, and write up the basis for their verdict.

This project is a fun way to argue against your friends and classmates – do as much as you can to get into your roles as legal actors!

Trial Roles

  1. Plaintiff (1 student)
    • The plaintiff is the person or group who files a case/lawsuit against another in a court of law. In this case, the plaintiff is Walt Disney Studios, corporate copyright owner and distributor of all Disney content. Walt Disney is suing Professor Faden for infringing its copyright by using clips of Disney movies in "A Fair(y) Use Tale." The person appearing in court is a representative from Walt Disney Studios. The burden is on the plaintiff to prove his or her case.
  2. Plaintiff's Attorneys (4 students)
    • The plaintiff's attorneys will present Disney's case against Faden.
  3. Defendant (1 student)
    • The defendant is the person or group accused of causing harm to the plaintiff. In this case, the defendant is Eric S. Faden, an Associate Professor of English and Film Studies at Bucknell University. Professor Faden studies early cinema and digital image technologies, and creates film, video, and multimedia scholarship that imagine how scholarly research might appear as visual media. He claims that his use of the Disney clips was a fair use, and therefore legal.
  4. Defendant's Attorneys (4 students)
    • The defendant's attorneys present the defendant's response to the plaintiff's claims.
  5. Judge (teacher)
    • Ultimate arbiter of the trial. For purposes of this exercise, the judge also assigns parts and oversees trial preparation. In the "real world," the parties would choose the jurors and the judge would not oversee the preparation of trial strategies.
  6. Jurors (remaining students)
    • Neutral "finders of fact." Jurors are members of the community who determine what actually happened based on the evidence presented at trial. For purposes of this exercise, student jurors will help the parties prepare their cases. In the "real world," jurors would never have access to the parties while they are determining their strategies before trial.

Trial Schedule and Assignments

  1. Opening Statements (3-5 minutes each side)
    • Plaintiff's Attorney #1 gives opening statement.
    • Defendant's Attorney #1 gives opening statement
  2. Testimony and Cross-Exam for Plaintiff (3-5 minutes each side)
    • Plaintiff's Attorney #2 calls plaintiff to the stand.
    • Defendant's Attorney #2 cross-examination of plaintiff.
  3. Testimony and Cross-Exam for Defense (3-5 minutes each side)
    • Defendant's Attorney #3 calls defendant to the stand.
    • Plaintiff's Attorney #3 cross-examination of defendant.
  4. Closing Arguments (3 minutes each side)
    • Plaintiff's Attorney #4 gives closing argument.
    • Defendant's Attorney #4 gives closing argument.
  5. Jury Deliberations (5 minutes)
    • Jury discusses case and reaches verdict.
    • Verdict is written down and handed to Judge.
    • Judge reads verdict to class.
  6. Post-Trial Debrief
    • Teacher debriefs student jury verdict with the class.

Things to Do to Prepare for Trial

Help Your Team's Attorneys Prepare Opening Statements.

The opening statement is the attorneys' first memorable pitch to the jury. Attorneys should appear confident and give clear evidence. Focus on the following questions and write an opening statement that lists three or four main evidence points:

  • What is the lawsuit about?
  • What's your client's story?
  • Why is the other side wrong?

Prepare Testimony for the Plaintiff or Defendant and Prepare Questions for the Cross-Examination.

Make up professional backgrounds for the parties. Some questions to think about are:

  • Who is this person? What is his or her story?
  • Why did this person make "A Fair(y) Use Tale" or file a copyright infringement suit?
  • What does this person think about the video "A Fair(y) Use Tale" and its effect?
  • What does this person think of current copyright law terms in general?
  • Think of three questions to ask the plaintiff or defendant on the other team that might undermine the other side's claims.
  • Anticipate questions that the other side's attorneys will ask during the cross-examination.

Help Your Team's Attorneys Prepare Closing Statements.

Highlight and restate the three or four main points for your case and the testimony that backs up this evidence. Remember, this is your last chance to prove your case to the court and to undermine your opponent's case.

  • Why should the jury rule in your favor?
  • How did your client's testimony support your evidence?
  • What amount of damages should be awarded?
  • Why is your case a stronger, better argument?

Trial Guide for the Educator

Walt Disney Studios v. Faden is a fictional case where students will be putting Professor Faden's "A Fair(y) Use Tale" digital mashup to the test in a mock trial. Students should use what they have learned about the fair use "four factors" and the stakeholders who are currently battling over copyright and fair use in the courts. They may wish to include research from relevant articles or actual fair use court cases.

Preparation begins when you assign students various trial roles. There will be two trial teams – one representing the plaintiff and the other representing the defendant. The plaintiff's team will have four attorneys and the plaintiff, a representative of Walt Disney Studios; the defendant's team will have four attorneys and the defendant, Professor Eric Faden, creator of "A Fair(y) Use Tale." The remaining students will serve as jurors, who will give their verdict at the end of trial, and write up the basis for their verdict.

If appropriate, consider encouraging your students to dress for their roles during the mock trial to better replicate the atmosphere of the courtroom.

Trial Roles

  1. Plaintiff (1 student)
    • The plaintiff is the person or group who files a case/lawsuit against another in a court of law. In this case, the plaintiff is Walt Disney Studios, corporate copyright owner and distributor of all Disney content. Walt Disney is suing Professor Faden for infringing its copyright by using clips of Disney movies in "A Fair(y) Use Tale." The person appearing in court is a representative from Walt Disney Studios. The burden is on the plaintiff to prove his or her case.
  2. Plaintiff's Attorneys (4 students)
    • The plaintiff's attorneys will present Disney's case against Faden.

    Goals for the Plaintiff's Side

    • The plaintiff's side will argue that the "Fair(y) Use Tale" clip infringes on Disney's copyrights.
    • The plaintiff's side should be encouraged to argue that the clip is infringing because it uses copies of Disney's copyrighted material. The plaintiff could bolster its argument by highlighting the importance of copyright, the effort that goes into creating characters and stories, and the expense of producing and distributing films. The plaintiff's side should find support for its position in the stakeholder research conducted as homework in Lesson 2.
    • To win, the plaintiff must also convince the jury that Faden’s use was not a fair use.
    • To that end, the plaintiff's side might note the length of "A Fair(y) Use Tale" and the number of Disney films used to make the remix video, thereby addressing the third "amount and substantiality" fair use factor. Another more complicated argument that the plaintiff may use is that the Disney video clips could have been licensed for a fee through Disney's official licensing channels, thereby addressing the fourth "effect of the use on the potential market" fair use factor.
  3. Defendant (1 student)
    • The defendant is the person or group accused of causing harm to the plaintiff. In this case, the defendant is Eric S. Faden, an Associate Professor of English and Film Studies at Bucknell University. Professor Faden studies early cinema and digital image technologies, and creates film, video, and multimedia scholarship that imagine how scholarly research might appear as visual media. He claims that his use of the Disney clips was a fair use, and therefore legal.
  4. Defendant's Attorneys (4 students)
    • The defendant's attorneys present the defendant's response to the plaintiff's claims.

    Goals for the Defendant's Side

    • The defendant's side will argue that Faden’s movie is a fair use, and therefore noninfringing. The defendant's side should find supporting material in the fair use activities in Lesson 3.
    • The defendant's side should be encouraged to go through each of the fair use factors. If the side seems to be having trouble, guide them with the Activity Highlights notes provided in Lesson 3.
  5. Judge (teacher)
    • Ultimate arbiter of the trial. For purposes of this exercise, the judge also assigns parts and oversees trial preparation. In the "real world," the parties would choose the jurors and the judge would not oversee the preparation of trial strategies.
  6. Jurors (remaining students)
    • Neutral "finders of fact." Jurors are members of the community who determine what actually happened based on the evidence presented at trial. For purposes of this exercise, student jurors will help the parties prepare their cases. In the "real world," jurors would never have access to the parties while they are determining their strategies before trial.

Trial Schedule and Assignments

  1. Opening Statements (3-5 minutes each side)
    • Plaintiff's Attorney #1 gives opening statement.
      • Explain the basis for the copyright infringement suit.
    • Defendant's Attorney #1 gives opening statement
      • Preview the fair use arguments.
  2. Testimony and Cross-Exam for Plaintiff (3-5 minutes each side)
    • Plaintiff's Attorney #2 calls plaintiff to the stand.
      • Ask the plaintiff questions that demonstrate whether unauthorized copying occurred and how Disney has been harmed by the infringement.
    • Defendant's Attorney #2 cross-examination of plaintiff.
      • Ask the plaintiff questions that demonstrate that the original Disney footage is different from "A Fair(y) Use Tale" in key ways.
  3. Testimony and Cross-Exam for Defense (3-5 minutes each side)
    • Defendant's Attorney #3 calls defendant to the stand.
      • Ask the defendant questions that demonstrate that Faden used the Disney clips to educate others about the issue in a compelling way. Try to discuss the video clip's adherence to the fair use factors.
    • Plaintiff's Attorney #3 cross-examination of defendant.
      • Ask the defendant questions that demonstrate that Faden did a great deal of copying of Disney's copyrighted work.
  4. Closing Arguments (3 minutes each side)
    • Plaintiff's Attorney #4 gives closing argument.
      • Summarize and conclude that Faden committed copyright infringement.
    • Defendant's Attorney #4 gives closing argument.
      • Summarize and conclude that "A Fair(y) Use Tale" is a fair use and that Faden did not infringe Disney's copyrights.
  5. Jury Deliberations (5 minutes)
    • Jury discusses case and reaches verdict.
    • Verdict is written down and handed to Judge.
    • Judge reads verdict to class.
  6. Post-Trial Debrief
    • Teacher debriefs student jury verdict with the class.

Things Your Students Should Do to Prepare for Trial

Attorneys Prepare Opening Statements.

The opening statement is the attorneys' first memorable pitch to the jury. Attorneys should appear confident and give clear evidence. Focus on the following questions and write an opening statement that lists three or four main evidence points:

  • What is the lawsuit about?
  • What's your client's story?
  • Why is the other side wrong?

Prepare Testimony for the Plaintiff or Defendant and Prepare Questions for the Cross-Examination.

Consider the professional backgrounds of the parties. Some questions to think about are:

  • Who is this person? What is his or her story?
  • Why did this person make "A Fair(y) Use Tale" or file a copyright infringement suit?
  • What does this person think about the video "A Fair(y) Use Tale" and its effect?
  • What does this person think of current copyright law terms in general?
  • Think of three questions to ask the plaintiff or defendant on the other team that might undermine the other side's claims.
  • Anticipate questions that the other side's attorneys will ask during the cross-examination.

Attorneys Prepare Closing Statements.

Highlight and restate the three or four main points for your case and the testimony that backs up this evidence. Remember, this is your last chance to prove your case to the court and to undermine your opponent's case.

  • Why should the jury rule in your favor?
  • How did your client's testimony support your evidence?
  • What amount of damages should be awarded?
  • Why is your case a stronger, better argument?

Copyright Frequently Asked Questions

The Congress shall have Power To… promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

— United States Constitution, Article 1, Section 8

What is copyright?

Copyright is a form of legal protection automatically provided to the authors of “original works of authorship,” including literary, dramatic, musical, and artistic works.

U.S. copyright law generally gives the author/creator or owner of an original creative work an exclusive right to:

  • Reproduce (copy) or distribute the original work to the public (e.g., create and sell copies of a film)
  • Create new works based upon the original work (e.g., make a movie based on a book)
  • Perform or display the work publicly (e.g., perform a play)

Violation of one of these rights is called copyright infringement. However, the use may be authorized by copyright limitations (such as fair use) described below.

What types of works are protected by copyright?

  • Literary works
  • Music and lyrics
  • Dramatic works and music
  • Pantomimes and choreographic works
  • Photographs, graphics, paintings and sculptural works
  • Motion pictures and other audiovisual works
  • Video games and computer software
  • Audio recordings
  • Architectural works

What is not protected by copyright?

  • Unfixed works that have not been recorded in a tangible, fixed form (e.g., a song you made up and sang in the shower)
  • Work in the public domain (see below)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; numbers
  • Ideas and facts
  • Processes and systems (e.g., the Dewey decimal system)
  • Federal government works (e.g., the tax code)

If I have an idea in my head, is it automatically copyrighted?

No, ideas are not copyrightable. Only tangible forms of expression (e.g., a book, play, drawing, film, or photo, etc.) are copyrightable. Once you express your idea in a fixed form — as a digital painting, recorded song, or even scribbled on a napkin — it is automatically copyrighted if it is an original work of authorship.

Who owns the copyright?

  • Author/Creator
  • Author/Creator’s heirs if the creator is dead (living family)
  • Creators of a joint work automatically share copyright ownership unless there is a contrary agreement. (e.g., If two students write an original story together, they share the copyright.)
  • Anyone to whom the author/creator has given or assigned his or her copyright (e.g., an employer if the copyrighted work is created under a "work made for hire" agreement, a publisher or record company if the copyrighted work is given in exchange for a publishing or recording contract). Usually this means that the author/creator has given up his or her own copyright in the work.

Who owns the copyright in recorded music?

It depends. If a person writes a song and records it, that person is the creator and owns the copyright. But professionally produced music can have many copyright owners. For example, the copyright to a particular sound recording may be owned by the songwriter, the performer, the producer, a record label, a publisher, or a combination thereof.

When I buy music, either online or offline, do I get copyright in the work?

No, when you buy music, you own that copy of the music. If you bought a CD, you are allowed to sell that particular copy or make fair uses of it, but you don't own a copyright in the music itself. If you bought a song on iTunes or other service, your ownership of it may be subject to certain restrictions.

When does copyright start? Do I have to register the work with the government?

Copyright status is automatic upon creation of your original creative work in a fixed, tangible form. Registration with the U.S. Copyright Office is not necessary for copyright status and protection, though registration is needed in order to pursue an infringement claim in court.

How do I formally register my original, creative work?

You can fill out the form and submit a filing fee at the U.S. Copyright Office website.

How long does copyright last?

  • For original works created after 1977, copyright lasts for the life of author/creator + 70 years from the author’s death for his/her heirs.
  • For “works made for hire” corporate works and anonymous works created after 1977, copyright can last from 95-120 years from publication.

Are there any copyright limitations?

There are several limits on copyrights. For example:

Fair Use allows the public to use portions of copyrighted work without permission from the copyright owner. To decide whether a use is a fair use, courts look at four factors:

  1. The purpose and character of the second use: Is it just a copy, or are you doing something different from the original work? Is your use commercial?
  2. The nature of the original: Was the original work creative or primarily factual?
  3. Amount used: How much of the original work was used, and was that amount necessary?
  4. Effect: Did the use harm the market for the original work? For example, would people buy this work instead of the original?

First Sale allows a consumer to resell a product containing copyrighted material, such as a book or CD that the consumer bought or was given, without the copyright owner's permission.

Public Domain works can be freely used by anyone, for commercial or noncommercial purposes, without permission from an original copyright owner/author. Public domain status allows the user unrestricted access and unlimited creativity! These works may be designated for free and unlimited public access, or they may be no longer covered by copyright law because the copyright status has expired or been forfeited by the owner.

What is licensing?

Licensing is when a copyright owner gives permission for someone else to do something normally restricted by copyright law. For example, the creator of a song may license a song to an advertising agency, allowing the ad company to use parts of her song in a television commercial in exchange for compensation.

Sometimes a creator may want to give everybody the permission to make copies of his or her work. For example, some musicians want fans to make copies and share their songs, so they license their songs in a way that gives others explicit permission to copy and share them. One increasingly common set of licenses that exist for this purpose are Creative Commons licenses.

What about plagiarism?

Plagiarism and copyright each address the legitimacy of copying, but plagiarism and copyright differ in important ways. While plagiarism is concerned with the protection of ideas, copyright doesn't protect ideas – it protects "fixed expressions of ideas."

Plagiarism is the act of misrepresenting the ownership of an idea. In school, it usually means passing off someone else's ideas as your own in a research paper or other academic work. Plagiarism is wrong, dishonest, and can lead to serious negative consequences in any school or professional setting. One way to avoid plagiarism is to properly cite your sources – a key academic skill.

By contrast, copyright is a legal concept extensively embodied by U.S. laws and policies. Copyright law permits individuals to make copies under certain conditions, but violating certain copyright rules is copyright infringement. You can't avoid a copyright infringement claim just by citing your sources (though it may still be the right thing to do).

Fair Use Frequently Asked Questions

What is fair use?

The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. Fair use allows people other than the copyright owner to copy part or, in some circumstances, all of a copyrighted work, even where the copyright holder has not given permission or objects.

How does fair use fit with copyright law?

Copyright law embodies a bargain. It gives copyright holders a set of exclusive rights for a limited time period as an incentive to create works that ultimately enrich society as a whole. In exchange for this limited monopoly, creators enrich society by, hopefully, contributing to the growth of science, education and the arts.

However, copyright law does not give copyright holders complete control of their works. Copyrighted works move into "the public domain" and are available for unlimited use by the public when the copyright term expires (see Public Domain FAQ). But even before works enter the public domain, the public is free to make "fair uses" of copyrighted works.

By carving out a space for creative uses of music, literature, movies, and so on, even while the works are protected by copyright, fair use helps to reduce a tension between copyright law and the First Amendment's guarantee of freedom of expression. The Supreme Court has described fair use as "the guarantee of breathing space for new expression within the confines of Copyright law."1

How does the court know if a use is fair?

Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn't depend on whether you give credit to the source from which you copied. Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in section 107 of the Copyright Act. Those factors are:

  1. The purpose and character of the use of copyrighted work
    • Transformative quality - Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?
    • Commercial or noncommercial - Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.
  2. The nature of the copyrighted work
    A particular use is more likely to be considered fair when the copied work is factual rather than creative.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its "heart," may weigh against fair use. But "how much is too much" depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.2
  4. The effect of the use upon the potential market for or value of the copyrighted work
    This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.

These factors are guidelines, and they are not exclusive. As a general matter, courts are often interested in whether or not the individual making use of a work has acted in good faith.

What has been recognized as fair use?

Many types of uses have been found to be fair. Here's a small sample:

  • Criticism & Commentary
    A book publisher used several stills from the famous 1963 Zapruder footage of President Kennedy's assassination for the historical book Six Seconds in Dallas. Time Inc., the owner of the footage, sued the book publisher for copyright infringement. In Time Inc. v. Bernard Geis Associates, the court ruled that the publisher's use of the stills was "fair and reasonable," in part because the use was based on a factual and historical news event.3
  • Parody
    An episode of the TV cartoon "Family Guy" made fun of comedian Carol Burnett's image and signature characters from her 1960's comedy variety show. In Carol Burnett v. Twentieth Century Fox, the court ruled that the show's use was fair, in part because the "Family Guy" episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market.4
  • News reporting
    The Washington Post newspaper used three brief quotations from Church of Scientology texts that were posted on the Internet. In Religious Technology Center v. Pagliarina, the court found the use to be fair, in part because the newspaper excerpted only a small portion of the work and the purpose was for news commentary.5
  • Art
    American artist Jeff Koons used a portion of a designer photo advertisement (a model's legs in Gucci sandals) amongst a collection of iconic images in his painting, "Niagara." In Blanch v. Koons, the court held that the painting's use of the copyrighted images was a transformative fair use, in part because it commented on fashion and consumer culture.6
  • Scholarship and Research
    A biographer of author Richard Wright quoted from six of Wright's unpublished letters and ten unpublished journal entries. In Wright v. Warner Books, Inc., the court found that the biographer's use was fair, in part because the biographer's purpose was to educate and inform the public, and his use constituted less than 1% of Wright's unpublished letters. 7
    A researcher at a nonprofit foundation used quotations from an unpublished, historical literary work in her academic presentation. In Sundeman v. The Seajay Society, the court ruled that the researcher's use was fair and noted that the work was transformative and was used solely for the purpose of scholarly analysis. 8
  • Time-shifting
    A major electronics manufacturer developed a video tape recording device that allowed the consumer to "time-shift"—record a complete TV program in real-time and hold the show for a later viewing. Several major film studios filed a copyright infringement suit against the electronics manufacturer claiming the device could be used for copyright infringement. In 1984's Sony v. Universal Studios (aka the Betamax case), the Supreme Court held that time-shifting with a VCR qualified as fair use. The courts noted that the private, non-commercial home taping of free television programs for later viewing was not infringing and did not hurt the market value of the copyrighted material.9
  • Search Engines
    A Google search engine turned the photos on a subscription-only website into thumbnail images for its search results. In Perfect 10 v. Amazon.com et al, the court ruled that Google's use of thumbnail photos was "highly transformative," since the search engine changed the image's original purpose of entertainment and aesthetics into providing Google's users with links to images.10

Public Domain Frequently Asked Questions

What is the public domain?

Public domain works are not restricted by copyright and do not require a license or fee to use. Public domain status allows the user unrestricted access and unlimited creativity!

There are three main categories of public domain works:

  • Works that automatically enter the public domain upon creation, because they are not copyrightable:
    • Titles, names, short phrases and slogans, familiar symbols, numbers
    • Ideas and facts (e.g., the date of the Gettysburg Address)
    • Processes and systems
    • Government works and documents1
  • Works that have been assigned to the public domain by their creators
  • Works that have entered the public domain because the copyright on them has expired

(Note: Use of some works, such as ideas and symbols, may be restricted by other laws, such as patent, trademark, or trade secret.)

What works have expired into the public domain?2

  • All works published in the U.S. before 1923
  • All works published with a copyright notice from 1923 through 1963 without copyright renewal
  • All works published without a copyright notice from 1923 through 1977
  • All works published without a copyright notice from 1978 through March 1, 1989, and without subsequent registration within 5 years

Congress has passed a series of laws extending the term of copyright. Currently, the default term is life of the author plus 70 years. That means that most of the copyrighted works created from the late 1970s to the present may not become public domain during your lifetime.

In general, works published after 1977 will not fall into the public domain until 70 years after the death of author, or, for corporate works, anonymous works, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

Where can I find public domain works?

The sites below will guide you to a cultural wealth of public domain books, images, illustrations, audio, and films where the copyright term has expired or the creator has not renewed the license. Remember, public domain works are free and available for unrestricted use. Enjoy and be creative!

How does a creator dedicate a work to the public domain?

One way to dedicate a work to the public domain in the U.S. is to use the Creative Commons Public Domain Dedication. Note that interpretation of a dedication may vary in countries outside of the United States.

Creative Commons also offers “CC0,” a method of waiving all copyrights and a number of other related rights.

  • 1. More specifically, "a work prepared by an officer or employee of the United States Government as part of that person’s official duties" is in the public domain, but there are situations in which copyright does apply to a government document. For example, works produced by contractors working on behalf of the government can be protected by copyright, depending on the terms of the contract. There may be disclaimers on ".gov" sites that cover exceptions or discrepancies.
  • 2. Cornell University, “Copyright Term and the Public Domain in the United States 1 January 2009”

Glossary of Terms

Attribution

Identifying the source of a work. For example, a Creative Commons "BY" or attribution license requires the second user of a copyrighted work to identify the original source of the work.

Author/Artist

Creator of a work.

Copyright

A form of legal protection given to the creators of "original works of authorship," including literary, dramatic, musical, and artistic works. U.S. copyright law generally gives the author of an original creative work an exclusive right to reproduce (copy) or distribute the original work to the public, create new works based upon the original work, and perform or display the work publicly.

Copyright infringement

A violation of the exclusive rights of a copyright holder, such as copying, distributing, or performing the copyright owner's work without permission unless the use is otherwise authorized by law.

Copyright term

The length of time the law allows copyright owners to hold the exclusive rights on their original works.

Derivative work

A new work that translates or transforms one or more original copyrighted works (e.g., a movie made from a comic book, a song written about a photograph, etc.).

Expression

A form of communication. Creative ideas alone are not copyrightable. But the communication of creative ideas in a fixed medium of expression (e.g., a book, play, drawing, film, photo, etc.) may be copyrighted.

Fair Use

One of several legal limitations on the exclusive rights granted to copyright owners. Fair use permits a second user to copy part or all of a copyrighted work under certain circumstances, even when the copyright holder has not given permission or even objects to that use of the work. Courts evaluate fair use claims case-by-case relying primarily on four factors: the purpose and character of the use of copyrighted work, the nature of the original work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the original work.

File sharing

The practice of uploading and downloading digital files (text, audio, video, or image) to and from a computer network where more than one user has access to those files.

License

Permission granted by the copyright holder to copy, distribute, display, transform and/or perform a copyrighted work.

Mashup

A genre of derivative works that are built by creatively reusing and combining various portions of music, film, audio, and graphics.

Parody

An exaggerated, often comical work that takes elements from the work it comments upon in order to target its point.

Peer-to-peer (P2P) technology

A network of online computers that allows users to share (upload and download) digital files from computer to computer.

Plagiarism

The practice of passing off another author's work or ideas as one's own.

Public domain

Works that are not restricted by copyright and do not require a license or fee to use. Works can enter the public domain automatically because they are not copyrightable, be designated in the public domain by the creator, or become part of the public domain because the copyright term has expired.

Remix culture

A term frequently used by Stanford law professor and Creative Commons founder Lawrence Lessig to refer to a community of amateur creators who blend media and materials to develop new works, and the social context that fosters the growth of that community.

Stakeholder

A person, group or organization that has a vested interest in the positive or negative outcome of an action.