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Copyright Primer

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 I, Section 8)

Copyright law, described in Title 17 of the U.S. Code, protects a work from the moment the work is created in a fixed, tangible form of expression. The entire code can be found online at Copyright immediately belongs to the author who created the work; and only the author, or those deriving their rights through the author, can lawfully claim copyright. The employer—not the writer—is considered the author in the case of works written for hire.  No copyright designation is required to be posted on copyrighted works.

What types of creative work does copyright protect?

Copyright protects works such as poetry, movies, CD-ROMs, video games, videos, plays, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography and architectural designs.

To qualify for copyright protection, a work must be "fixed in a tangible medium of expression." This means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium, including a computer's hard drive, tapes that capture all radio and television broadcasts, and the scribbled notes on a post-it note.

In addition, the work must be original -- that is, independently created by the author. It doesn't matter if an author's creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity or aesthetic merit. So long as the author toils without copying from someone else, the results are protected by copyright.

Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book's white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.

Who owns the copyright? Copyright versus Ownership

It is important to distinguish the copyright in a work from the ownership of a particular copy of a work.  For example, ownership of a copy of a book does not include ownership of any of the copyright rights, such as the right to make copies of the content of the book.  (See Section 202 of the U.S. Code, Title 17).  Incidentally, you can, however, loan it to someone else to read.  There are, however, specific exceptions and limitations on the copyright rights that allow the owner of a copy of a work to take certain actions with respect to that work that do not violate the exclusive rights of the copyright holders.  What rights are specifically copyright rights?

 What are those rights? Rights Granted to Copyright Holders

U.S. Copyright Law grants a wide variety of exclusive rights to copyright holders. Section 106 indicates that


[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1.      to reproduce the copyrighted works in copies or phonorecords;

2.      to prepare derivative works (adaptations) based upon the copyrighted work;

3.      to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending (except as limited by the “First Sale” rights outlined in Section 109);

4.      in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

5.      in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

6.      in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Work For Hire

  • The “author” of a work created by an employee acting within the scope of his or her employment is the employer, which may be a person or an entity, such as Centre College. 
  • The status of a person as an employee is typically analyzed under the common law applicable to the employee-employer relationship, not a special copyright rule.  The courts have identified relevant factors to be considered in making this determination.
  • An independent contractor is not an employee.  However, there is a special rule by which the work of an independent contractor also may be a “work made for hire.” Specifically, the work must fall within one of nine enumerated categories (notably including instructional texts, translations, tests, answer materials for tests, compilations, and a/v works, but not computer programs) and the parties must agree in writing that the work is a “work made for hire.”
  • The ownership of copyright in course materials and writings created by College faculty acting within the scope of their employment, particularly new forms of digital course materials, raises a complex set of issues.  Typically, unless a publisher owns the copyright, a faculty member will retain the rights to all scholarly work and creative expression outside of the instructional work in support of courses.

When you aren’t the only author

The initial owner of the copyright in a work is the “author” of the work, which can be interpreted in a variety of ways.  Normally, the author of a work created by an individual is the individual.  A “joint work” is defined as a work created jointly by two or more authors with the intention that their contributions be merged into inseparable parts of a single work.    In this case, each author owns an undivided interest in a joint work and may freely use and exploit the rights in the work.

Original Author’s Rights

If the work does not fall under the “Work for Hire” clause, the copyright belongs to the content creator(s) until they transfer those rights to another party.  Subsequent publication of those works as books, journal articles, recordings, and other products requires agreement in the form of a contract between the creator and the publisher (often called ‘a copyright transfer agreement’).

Traditionally, creators transfer full and exclusive rights to the publisher in exchange for publication and –for some kinds of work – royalties.  As a consequence, the terms (including prices) under which readers, viewers, listeners, and creators will have access to or may use the work can be set entirely by the publisher.  These terms may not meet the creator’s interest in assuring that the work is widely available for use in teaching and research.

However, copyright transfer need not be an all-or-nothing agreement.  Authors may reserve certain rights for themselves while granting other rights to the publisher or may transfer copyright to the publisher with certain qualifications.  Increasingly, scholarly publishers will accommodate their authors’ preferences to share their works with students and colleagues via the Web and in other ways, and will negotiate changes to their standard copyright transfer agreement.

Possible ways copyright holders can control how their material is shared.  You can choose both ways, but make sure you include language in your contract amendment that explicitly says that you wish to share this work within the Creative Commons:

1.      Contract amendment:  (see the bottom of this page for more information about how to amend your contract with publishing companies, or visit for the Scholar’s Copyright Addendum Engine that will generate a PDF form that may be attached to a publishers copyright agreement)
Be sure to include language about how you may want to use your own publications in the future:

a.      Can you post the article/book/poem/recording on your website?

b.      Can you share the article/book/poem/recording with your students? Colleagues?

2.      Creative Commons:  Authors can release the work to the public under a license that defines what users may or may not do with it.  One way to do this is to visit the Creative Commons website: which allows you the opportunity to decide how to indicate and stipulate how your work can be used.  Under Creative Commons licenses, authors retain their copyright.  The Creative Commons scheme distinguishes several rights that authors can exercise in various combinations as they prefer:

·         Attribution:  The author may permit copying and distribution of the work with the condition that the original authorship is acknowledged, or may waive this requirement.

·         Commercial use:  The author may permit copying and distribution of the work only for non-commercial purposes, or may allow commercial uses.

·         Derivatives: The author may permit transformation of the work into new works, or may forbid transformation of the work.

·         Licensing for Subsequent Uses (“Share Alike” licensing):  If derivatives are permitted, the author may require that the derivative be distributed under the terms of the original license, or may waive this requirement.

·         For a complete list of all the ways you can specify how to limit (or make available) your work, please visit

Does copyright protect an author's creative ideas?

No. Copyright shelters only fixed, original and creative expression, not the ideas or facts upon which the expression is based. For example, copyright may protect a particular song, novel or computer game about a romance in space, but it cannot protect the underlying idea of having a love affair among the stars. Allowing authors to monopolize their ideas would thwart the underlying purpose of copyright law, which is to encourage people to create new work.

For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. For instance, anyone is free to use information included in a book about how the brain works, an article about the life and times of Neanderthals or a TV documentary about the childhood of President Clinton -- provided that that they express the information in their own words.

Facts are not protected even if the author spends considerable time and effort discovering things that were previously unknown. For example, the author of the book on Neanderthals takes ten years to gather all the necessary materials and information for her work. At great expense, she travels to hundreds of museums and excavations around the world. But after the book is published, any reader is free to use the results of this ten year research project to write his or her own book on Neanderthals -- without paying the original author.

How long does a copyright last?

For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.

All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047. (See this chart to help you identify what might fall in the public domain.)

Public Domain

The public domain refers to all works that are either no longer protected by copyright or never were. It should not be confused with the mere fact that a work is publicly available (such as information in books or periodicals, or content on the Internet).

All works first published in the United States before 1923 are considered to be in the public domain in the United States. The public domain also extends to works published between 1923 and 1963 on which copyright registrations were not renewed.

All materials created since 1989, except those created by the U.S. federal government, are protected by copyright.   The chances are high that the materials of greatest interest to students and faculty are not in the public domain. In addition, other forms of legal protection should be considered, such as trademark or patent protection before reusing third-party content.

Public domain materials generally fall into one of four categories:

  1. Generic information such as facts, numbers and ideas.
  2. Works whose copyrights have lapsed over time or whose copyright holders have failed to renew a registration (a requirement that applies to works created before 1978).
  3. Works published before March 1989 that failed to include a proper notice of copyright.
  4. Works created by the U.S. federal government.


In rare instances, works may also be "dedicated" to the public domain.  Open access materials fall into this category.  For more information, visit this website:

Registration and Notification of Copyright

Copyright is secured automatically when the work is created and fixed in a tangible form, such as the first time it is written or recorded. No other action is required to secure copyright protection – neither publication, registration nor other action in the Copyright Office (although registration is recommended).

The use of a copyright notice is no longer required under U.S. law, although it is recommended. This requirement was eliminated when the United States adhered to the Berne Convention effective March 1, 1989. If a copyright holder wants to use a copyright notice, he or she may do so freely without permission from or registration with the U.S. Copyright Office. In fact, the use of a copyright notice is recommended because it reminds the public that the work is protected by copyright.

A copyright notice should contain all of the following three designations:

The symbol © (the letter C in a circle), the word "Copyright" or the abbreviation "Copr."
The year when the work was first created
The name of the owner of the copyright
Example: © 2005 John Doe

"International" Copyright

There is no such thing as an "international" copyright that protects a work throughout the world. The most widely-adopted copyright treaty, the Berne Convention, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them. As of mid-2004, 156 countries, including the U.S., belong to the Berne Convention.

The Berne Convention further states that the scope and limitations of any copyright are based upon the laws of the country where the misuse of the copyright-protected work takes place (rather than the country where the work originated). For example, if you photocopy an article in the U.S., then U.S. copyright law applies to determine whether that copy was lawful.

To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of "when in doubt, obtain permission" in these situations.

Amending your Contract with Publishers

There are many resources for faculty who are writing and submitting publications and who wish to retain specific rights to use their own works without having to seek permission later. 

ALA Author Control of Copyright site:

Reserving Rights of Use in Works Submitted for Publication:

MIT has developed an amendment form for contracts with publishers.

            Recommended language for manuscript contracts