Copyright and Fair Use Frequently Asked Questions, National Center for Technology Innovation

Copyright and Fair Use FAQs

Your Ownership Rights as a Creator:
Copyright, Licenses, and How Digital Rights Management Protects Rights

I've finished a piece of creative work-how do I copyright it?

I was hired to create a set of graphic icons for a piece of software. I delivered the images and was paid. The developer liked my work and plans to use the icons in another software product, modifying them slightly. Do I have approval rights for the modifications?

While I was on staff for another company, I designed graphics for a piece of software. I never signed any contract stating that the work was a work for hire. What are my rights regarding the material?

What can my former clients use from the work I did for them, if it was not work for hire?

What elements are typically included in licenses?

My former client used only very little of my work in his new product. Is that considered "fair use"?

What is considered fair use?

What protects my work from being distributed over the Internet?

Are any DRM systems easily available?

Using recognizable names, logos, and faces: trademark and “the right of publicity”

I understand that I can’t use something that is trademarked. How can I tell whether something is trademarked?

Do I need to get a release when I use someone’s photo?

Q: I've finished a piece of creative work-how do I copyright it?

A: Generally, copyright automatically protects works immediately upon their creation. Technically, you don't have to do anything to copyright. However, it's a good idea to place a copyright notice on your work (© 2004 Creator, Inc.) when appropriate, although the law since 1989 hasn't required it. The notice gives others the opportunity to know the work is private property, reducing the opportunity of people who make unauthorized copies to claim they were innocent infringers and shouldn't have to pay damages. It's also a good idea to register each work with the Copyright Office. This costs about $30 and requires filling out a very simple one- to two-page form. Registration gives you significant additional rights, some of which, including the ability to file for statutory damages, will be lost if the work is not registered within 90 days of publication. For more information, see http://www.copyright.gov.

Q: What rights does copyright cover?

A: Copyright means that you control the rights to a bundle of rights, including rights to

reproduce the copyrighted work (literally, to make copies)
prepare derivative works (to make modifications based on the work)
distribute copies of recordings of the work to the public by sale, rental, or leasing
present literary, musical, and audiovisual works to the public
present digital audio transmissions of certain sound recordings.

You can unbundle, split, sell, or license these rights in a variety of ways. You can sell rights for a certain period of time (a five-year license); sell rights to a territory or in a language (sales in France, sales in the French language); sell rights to a medium (distribute on cable TV or sell on videotape).

Q: I was hired to create a set of graphic icons for a piece of software. I delivered the images and was paid. The developer liked my work and plans to use the icons in another software product, modifying them slightly. Do I have approval rights for the modifications?

A: It depends whether the work was a work for hire. In the case of a work made for hire, the client is considered the author, as if the company had created the work itself. Typically, you would have signed an agreement stating that the work was a work for hire.

If you and the developer did not write and sign an agreement saying that you did the work as a work for hire , however, the developer does not own the images and what he or she is doing is most likely not legal. If that's the case, the developer probably needs to get your approval for using the images a second time.If the developer plans to modify the images, he or she is creating a derivative work and he needs your approval for that too.

Q: While I was on staff for another company, I designed graphics for a piece of software. I never signed any contract stating that the work was a work for hire. What are my rights regarding the material?

A: If an employee does a piece of work as part of his or her normal job duties, then the company owns the product. Therefore, if you were on staff, you probably have no rights.

Q: What can my former clients use from the work I did for them, if it was not work for hire?

A: Probably very little. For example, they can't take characters from your work even if they invent new stories for them. They can't take your video-or even a single image-process it into something quite different, and use it in another product. Other than exceptions for things such as certain educational uses, criticism, and parody (which are interpreted quite narrowly), you need permission-a license-to use another's work.

Q: What elements are typically included in licenses?

A: Licenses vary tremendously-and both sides should read them carefully. A license can restrict use of the materials unmodified, except perhaps for excerpting. A license can provide specifically that the licensor, as the original owner of the material, owns any derivative works the licensee might create.

Q: My former client used only very little of my work in his new product. Is that considered "fair use"?

A: Fair use is a fairly narrow doctrine. Courts generally frown on those who take another's product without paying for it. It's also a fairly subtle and complicated doctrine. There are four factors courts weigh in determining whether an unauthorized use of copyright material is permitted under fair use: (1) the purpose and character of use (are you creating something new or just copying the work?); (2) the nature of the copyrighted work (an article listing the species of birds found at a lake is accorded "thinner" protection than an original documentary on those birds); (3) the amount and importance of the work used (quality is as important as quantity-despite common myths there is no "eight-bar rule" for sampling music, no "30-second rule" for using clips, and no "one-paragraph rule" for using text); (4) the effect of the use on the (potential) market for or value of the work, considered as if the use was widespread.

Q: What is considered fair use?

A: Although this list isn't exhaustive, some uses generally deemed fair include (1) criticism and comment (for example, quoting from a work in a review or essay); (2) news reporting; (3) certain nonprofit or educational uses (such as using clips in a classroom setting); (4) research and scholarship; and (5) parody (drawing elements from a work to ridicule it).

Q: What protects my work from being distributed over the Internet?

A: Digital rights management (DRM) systems hold significant promise to protect digital works, including the graphic images used, created, and manipulated by online editors, by controlling access and sometimes even leaving a traceable trail, such as "digital watermarks." In a sort of technological arms race, clever programmers will continue to develop software "wire cutters" to disable such protection. To over-generalize a bit, the law makes development, distribution, possession, and use of digital wire cutters illegal. The most significant statutory development for these purposes is the Digital Millennium Copyright Act (DMCA). Enacted in late 1998, the DMCA is an attempt to update the Copyright Act to deal with works in digital form. Its provisions are somewhat controversial because of the potential for encryption tools to limit activities that have been accepted as fair use, and some court challenges are ongoing.

Q: Are any DRM systems easily available?

A: There are a number of commercial and even some shareware digital watermarking packages available to the graphic artist. The DMCA provides a very powerful legal tool-complete with criminal penalties and jail time-to back up your copyright protection tools.

Using materials found on the Internet

Q: I find great things to use on the Internet—things that I could use or adapt that would be very helpful in helping students learn. What do I need to know about copyright restrictions on use?

A: Copyright is extremely complex—but you should start with the simple rule that if you didn’t create it, you probably don’t own it and probably can’t use it without a license saying how you can use it. If you use graphics or any other content downloaded from the Internet, messages boards, FTP sites, or Peer2Peer services without a license agreement, you almost certainly don’t have the right to use them.

Q: If I change what I find, can’t I use it? For example, can’t I use characters from someone else’s work if I invent new stories for them? Can’t I take someone else’s video or single image, process it into something quite different, and use it in my work?

A: Probably not. Other than exceptions for things such as certain educational uses, criticism, and parody (which are interpreted quite narrowly), you need permission—a license—to use another’s work—even if you have employed a highly creative process in making your version, called a derivative work.

Q: So if I get a license, I can do what I want to?

A: Read the agreement. Often, even if you have licensed stock footage or stock art, a close reading of the license agreement that accompanies it will limit you to use of the materials unmodified, except perhaps for excerpting. The license might also provide specifically that the licensor—the original owner of the material—owns any derivative works you might create. It all depends on the license agreement. If it’s not in writing, don’t assume you have permission.

Q: Speaking of stock art, how careful do I need to be with work I find that seems to be put online for general use, such as royalty-free image collections?

A: You need to carefully read the EULA, or End User License Agreement. A EULA may come in small print or in clickwrap, which appears on your screen when you install, download, or access software or other content online. When you click to accept the terms, you are bound by the agreement, whether or not you’ve read it. Shrinkwrap is a EULA placed in the packaging with the software; a shrinkwrap license typically will say that by opening the package, you have agreed to its terms. EULAs contain important, legally binding, and enforceable terms. They may prohibit making content available for downloading separately or prohibit using the image as part of another project.

Q: What parts of the EULA are most important for me to examine and understand?

A: Be sure to understand (1) details of the license granted; (2) creation and ownership of modifications or derivative works; (3) representations and warranties, particularly of non-infringement; (4) limitations of liability; (5) indemnification provisions; and (6) the details of dispute resolution. Do you have to go to London to arbitrate a dispute?

Using materials made by contractors or by staff

Q: A freelancer did some excellent graphics for us last year on a piece of software. We'd like to incorporate pieces of it into something we're designing now. That's OK, isn't it, since we paid for the work already?

A: It depends on the agreement you had with the freelancer. Often agreements will specify that the work you've paid for is a work made for hire. In that case, your company is considered the author and owner, and you can use any part of it. However, unless there is a written and signed agreement between your company and the freelancer saying the work was a work for hire, then it is not a work for hire and your company doesn't own it.

Q: Do I have to have work for hire agreements with my staff?

A: No. When an employee creates copyrightable material in the course of his or her employment, the employer is presumed to be the author and have full ownership of the material. No separate written contract is needed-if the employee does the work as part of normal job duties, the company owns the material.

Using materials under “fair use”

Q: What falls under “fair use”?

A: In assessing fair use, the unauthorized but legal use of someone else’s work, courts weigh these four factors: (1) the purpose and character of use (are you creating something new or just copying the work?); (2) the nature of the copyrighted work (an article listing the species of birds found at a lake is accorded “thinner” protection than an original documentary on those birds); (3) the amount and importance of the work used (quality is as important as quantity—despite common myths there is no “eight-bar rule” for sampling music, no “30-second rule” for using clips, and no “one-paragraph rule” for using text); (4) the effect of the use on the (potential) market for or value of the work, considered as if the use was widespread.

Q: What is considered fair use?

A: Although this list isn’t exhaustive, some uses generally deemed fair include (1) criticism and comment (for example, quoting from a work in a review or essay); (2) news reporting; (3) certain nonprofit or educational uses (such as using clips in a classroom setting); (4) research and scholarship; (5) parody (drawing elements from a work to ridicule it).

The University of Texas system provides a good fair use guide written in plain language on its website at http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm.

Using recognizable names, logos, and faces: trademark and “the right of publicity”

Q: I understand that I can’t use something that is trademarked. How can I tell whether something is trademarked?

A: Trademark law protects nonfunctional elements that make a product distinct from its competitors. This includes names and logos, sounds (the NBC chimes), color (for example, the pink of certain fiberglass insulations), and even smells. It is generally OK to use a trademark to identify a product without first obtaining permission; this is called nominative use. However, you can’t use it in a way that implies an affiliation that doesn’t exist—and if you use it in a disparaging way, that could lead to liability.

Q: Do I need to get a release when I use someone’s photo?

A: The so-called “right of publicity” may mean that you need a release—permission from the person—before you use the person’s image. This isn’t recognized in all states, but in many, this law prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable parts of his or her persona. When the individual is a celebrity, he or she may have trademark rights covering name, image, or persona. When in doubt about whether your use is commercial, you should obtain the release.

Prepared for exclusive distribution at the NCTI Sixth Technology Project Directors' Meeting, November 5-7, 2003.

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National Center for Technology Innovation

Copyright and Fair Use FAQs

Your Ownership Rights as a Creator: Copyright, Licenses, and How Digital Rights Management Protects Rights

Using materials found on the Internet

Using materials made by contractors or by staff

Using materials under “fair use”

Using recognizable names, logos, and faces: trademark and “the right of publicity”

Using materials found on the Internet

Using materials made by contractors or by staff

Using materials under “fair use”

Using recognizable names, logos, and faces: trademark and “the right of publicity”

Your Ownership Rights as a Creator:
Copyright, Licenses, and How Digital Rights Management Protects Rights