Copyright, Fair Use and Public Domain
As the author, it is your responsibility to obtain permissions for illustrations and quotations used in your work, and to negotiate and pay any fees required, before submission of your manuscript for publication.
Putting the work of others to work for you
A lot of writing is about research, and a lot of research is about working with the words and/or images of others. Just ask Da Vinci Code author Dan Brown! How do you properly work with this material while carefully avoiding any potential problems with copyright infringement?
Without the author's permission, direct quotation from material still under copyright falls under very strict guidelines. When in doubt, paraphrase, interpret or summarize the material you wish to cite. Writers often incorrectly assume that the term fair use gives them far greater latitude than it does.
What is fair use?
The 'fair use' concept covers the limited occasions upon which is it acceptable to quote another writer directly or publish an image without first obtaining permission. Limited quotation is considered legal for use in literary criticism and commentary, news reporting, teaching, learning and research. There are no specific guidelines as to how many words or sentences can be used, but simply citing your source is no substitute for obtaining proper permission.
Fair use criteria
The Copyright Office takes four factors into consideration:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
What is in the public domain?
A work in the public domain is a work not protected by copyright which may be freely used by anyone. Either the copyright for the work has expired, the author failed to properly copyright his work, or it is the work of the US government. These are the basics on public domain:
Works published before 1923 are in the public domain and carry no copyright protection.
Works created as of January 1, 1978, or later are copyright-protected from "when work is fixed in tangible medium of expression," for the life of the author and for a period extending 70 years after his or her death. If of corporate authorship, "the shorter of 95 years from publication or 120 years from creation."
Works published between 1923 and 1963 are protected by copyright when published with a copyright notice for a period of 28 years from date of publication. These could be renewed for 47 years, now extended by 20 years, for a total renewal of 67 years. It not so renewed, these works would also be in the public domain.
Works published between 1964 and 1977 are also protected by copyright when published with a copyright notice for a period of 28 years from date of publication and now enjoy an automatic extension of 67 years for a second term.
Works created before January 1, 1978, but not published are copyright-protected from January 1, 1978, the effective date of the 1976 Act which eliminated common law copyright, for the life of the author and for a period extending 70 years after his or her death or until December 31, 2002, whichever is greater.
Works created before January 1, 1978, but published between then and December 31, 2002 are protected by copyright from January 1, 1978, for the life of the author and for a period extending 70 years after his or her death or until December 31, 2047, whichever is greater.
