Navigating what can or cannot be used for publication requires the consideration of a variety of copyright factors. Yale University's Office of General Counsel offers resources on publishing copyrighted materials.
The CASE Act establishes an alternative dispute resolution system overseen by a tribunal called the Copyright Claims Board (“CCB”) for the purpose of adjudicating “small claims” copyright infringement actions in a shorter, less expensive process—that is, without many of the procedural requirements and expenses of a normal federal court case. Monetary damages are capped at $30,000 for CCB cases.
Library and archive “opt out” of CCB proceedings
Libraries and archives can file a preemptive opt-out of all CCB proceedings and the opt-out would extend to library/archive employees for activities within the employee’s scope of employment. The opt-out results in the dismissal of the CCB claim without prejudice. If the claimant wanted to continue pursuing the claim, the claimant would need to look to more traditional legal mechanisms for asserting a copyright infringement claim, such as filing in federal court.
The university has filed a blanket opt-out covering Yale libraries and archives. It has also designated a service agent to receive notices of CCB claims asserted against the university, its schools, departments and units. Please promptly contact the Office of the General Counsel if your library or archival unit has received a notice stating it is from the CCB or U.S. Copyright Office.
While the library/archive opt-out only extends to activities performed within the scope of your employment as a library/archive employee, it is important to understand that participation in CCB proceedings is voluntary. This means, if you receive a CCB claim in your individual capacity, you will also have the option to opt out of CCB proceedings. Individual opt-outs are different than the library/archive blanket opt-out because the individual must file an opt-out every time a CCB claim is filed against them. There is a 60-day opt-out window for individual claims. You should always consult your own attorney for legal advice with regard to such claims. Please see the U.S. Copyright CCB website for more information: www.ccb.gov.
Please feel free to contact me with comments and questions: firstname.lastname@example.org.
Use of other's works in new works or for educational purposes is ubiquitous in an academic setting. If using content from the Yale University Library's (YUL) licensed electronic resources, restrictions or extensions beyond what copyright law permits may be in place. The terms of license agreements between Yale and the copyright holder may supersede copyright law. The following presents guidelines for typical uses of others' copyrighted works. Even though your exact scenario may not be represented, you may see similarities which help you to make a decision on how to use the copyrighted work in your application. Whenever you do use others' copyrighted works, it is a wise practice to attribute the work to the copyright holder! (BEWARE: attribution alone does not make a use lawful)
For more comprehensive information see: Rights Clearance Guide for Digital Projects (YU Office of General Counsel) and A Framework for Analyzing any U.S. Copyright Problem (CC-BY-SA 4.0, Kevin Smith & Lisa Macklin)
Q: I plan to print out an article to hand out in class that deals with the subject being taught during the course of the semester. I want my students to read the article and come prepared to discuss the issues in it for a subsequent class. Can I make copies of the articles for each student in the class?
A: If the article has been downloaded from YUL's database of journal articles, this type of use is generally permitted by license and copyright law. Note that if the license does not allow this type of use, you may encounter a notice or intermediate page before gaining access to the site stating any restrictions of use. Otherwise, follow copyright law, which permits copying and distributing for face-to-face classrooms in nonprofit educational settings (17 U.S.C 110(1))
Q: I am teaching a course this fall and want to upload a series of articles in the learning management system, Canvas, for my students to use in this course. Can I post the pdfs in the course management system myself?
Q: I want to show a movie in my class to students that admirably illustrates the theory we have been discussing over the course of this semester. I may also want to use some music clips to further demonstrate the theory as well. Can I do this?
A: Talk to your YUL librarian about the DVD you want to use. Many movies on DVD require a public performance license. Movies that you purchase from Amazon for your personal use do not typically come with the public performance license and should not be played in its entirety in class or other venue. For music clips or movie clips, use only the amount necessary to demonstrate the point you are trying to make in the classroom setting. Copyright law in Section 110 as mentioned above, provides narrow permissions for use in face-to-face classrooms in nonprofit educational settings.
Q: I found an article that I need for my research on SciHub that wasn't available through YUL. I've been hearing that this might not be legal. Is that true?
A: Yes, it is true. SciHub collects copyrighted works through unlawful means and is unethical to make unauthorized use of these articles. If YUL does not have the article that you need, it is possible that we can purchase it or request it from another library via ILL or Borrow Direct. Of course, once you have an authorized copy of the article in hand, you must observe copyright law for any reuse, such as fair use or asking permission as applicable. It goes without saying that no one at Yale should share usernames and passwords for access to Yale licensed electronic resources with third parties.
Q: My buddies and I have a habit of sharing music files with one another through a peer-to-peer system. We don't sell them, but just share each other's music. Is this wrong?
A: Yes, it is wrong and should not be done even if it is just for personal use. Musicians make money in part by licensing and collecting royalties from the sale of their creative works. It is illegal and unethical and violates Yale policy to do so. (See also: Illegal File Sharing on the Yale IT website). If you are sued as a result of your unlawful file sharing, the statutory damages can be in the tens of thousands for each infringement!
Q: I've heard that all government documents are in the public domain. Can I reuse anything produced by any government in any way that I want to?
A: Not exactly. The federal government (U.S.) works are not eligible for copyright protection under U.S. law. However, some government documents may contain copyrighted material, so care must be exercised. The same cannot be said for state and local governments who may have their own laws and regulations regarding copyright.
Q: I am a Drama School student and hope to use a variety of ARTstor images in stage projections as background against the actors' scenes for my required class production. The performances will be open and free to the public. Can I use the images in this way?
A: Artstor offers users a limited license to access, use, reproduce, publicly display and perform, and distribute content from the Artstor Digital Library for non-commercial scholarly and/or educational purposes only. As long as the performance does not charge admission and is intended for scholarly and educational purposes, the intended use sounds acceptable. Alternatively, the student can consider a fair use application by using the four factor analysis (see Fair Use tab).
Q: I am a graduate student who is preparing an article for publication. I want to put maps and images in my article and the article will eventually become a dissertation. How do I make sure I can use images and maps?
A: Check the rights of the images/maps that you want to use. You may have to click on several links in the image metadata. Searching Google Images makes that easy if you use the tools link and filter images based on the type of use you are looking for. Look to see if the map is a government resource and thus likely to be in the public domain. Assess whether your work will eventually become commercial and whether you can make a fair use claim for the use of in-copyright materials (make sure to complete a fair use analysis if claiming that!)
Q: I want to use part of a copyrighted work that comes from a different country in my own work that I hope to publish. Do I have to know what copyright law is in that country?
A: Rule of thumb is that you should abide by the rules of the country in which you are using the copyrighted work. So if you are in the U.S., you should follow U.S. copyright laws. In this case, you have the fair use doctrine or the option to contact the copyright holder and seek permission for your use.
MOOC=Massive Open Online Course | SNOC=Small Network Online Course
Q: Faculty member designs MOOC to be given over 6 weeks during the spring semester and wants to post pdf copies of several articles (including a few of his own) to the MOOC website.
A: If the faculty member downloaded the articles to be used from the YUL licensed materials or elsewhere, generally licenses and copyright law prohibit reproducing and distributing this content in such a broad manner even though it may be used for educational purposes only. For YUL licensed materials, access to the content is limited to Yale's authorized user population. In some cases where the faculty member is the author, as a condition of publication, he may have signed over his copyrights to the publisher. The faculty member must review his agreement with the publisher to see if it licensed back some rights (such as reproduction and distribution for courses taught) to the author. Otherwise, it is safe to provide to the course participants the citation for the resource so the student can locate the article or provide copies of articles or works in the public domain or under Creative Commons license.
Q: I want to include articles in a SNOC that is limited to a handful of registered students at a number of participating member institutions for this course. Some of the students may be at Yale and others at different institutions, but all are matriculated at their institution. May I provide articles from Yale Library's databases to all students?
A: It depends. If they are your own articles and you have the rights to reproduce and distribute (not having signed away those rights exclusively to a publisher), you may post them for students of your SNOC. The same applies to other faculty of the participating member institutions with their permission. Otherwise, the situation is the same as for a MOOC. If the articles come from Yale Library licensed materials, there are probably restrictions prohibiting copy and distribution to non-authorized users. Try coordinating the resources for your courses with the other schools' libraries so that links to the articles which may be subscribed by the member schools can be made available locally to their participating students.
Q: I am writing a play for my Drama class where I plan to incorporate snippets of 1960s music as fade in/out of various scenes. The play MAY be publicly performed, but I'm not sure at this point. Can I just use small clips without obtaining an expensive license?
A: Music is a thorny category. Sound recordings were given federal copyright protection in 1972, but sound recordings made before Feb. 15, 1972 were only protected under state law which means that some of your 1960s music might have different protections depending on the state in which the music was created. So the answer to your question is a definite maybe! There are many stakeholders of copyright in music, the composer, the lyricist, and the recording entity, so if permission is required, you may have to clear permission from several people/entities. You may be able to pursue a fair use argument. Use one of the recommended fair use tools in this guide or on the Office of General Counsel's fair use guide. For further information about clearing music rights, please visit the Yale's Office of General Counsel's Rights Clearance Guide for Digital Projects.
Q: I'm creating a storymap and want to incorporate GIS-based maps in it. Do I have to ask permission to do so?
Q: I am writing an article for publication and plan to reproduce a chart from a colleague's research that I found in an older article. Can I just use the chart as long as I attribute it to my colleague?
A: Chances are that the copyright in the chart is now owned by the publisher. Many authors assign or transfer their copyright to the publisher in their author-publisher agreements. You may have to ask the publisher for permission to reproduce the chart for your article and pay for the permission either directly to the publisher or to the Copyright Clearance Center who may be tasked with collecting royalties for certain publishers. Alternatively, you can conduct a fair use analysis to see if your intended use of the chart may fall under the fair use limitation of copyright law (see Fair Use tab of this guide).
Q: I am going to reproduce a chart from a published article that I wrote a few years ago in a new article. I don't need to ask anyone's permission to reuse my own chart, right?
A: You may have to ask the publisher for permission if you assigned your copyright in the chart to the publisher. Many publishers, however, do license back to the author a right to use their work in subsequent publications, but it will depend on the publisher. Refer to your author-publisher agreement or look up the publisher policies on author reuse by looking at the publishers website or contacting the publisher for this information.
Q: I'm giving a presentation at a professional society meeting in June. In my powerpoint presentation, I plan to incorporate a number of humorous cartoons to illustrate the point I'm making and to provide relief from straight text. Can I use cartoons this way?
A: The answer is a definite maybe. It depends on where you get the cartoons and whether the copyright holder requires you ask permission (and pay) to use them. Try looking for an illustration/image/cartoon by performing a Creative Commons search where you need only give the cartoonist attribution. Alternatively, conduct a general Internet search for a cartoon on the topic you are presenting. Click on the desired cartoon to find out whether the cartoon has a CC license or is subject to copyright before using it or limit your search by narrowing the search to specific usage rights such as cartoons "Labeled for reuse."
Q: I'd like to post the pdf of a published article that I wrote on my own website. Can I do that?
A: It depends on the agreement you signed with the publisher. Did you transfer your copyright? Did the publisher license back your right to post "a version" of the article under certain conditions? It is best to refer to your publisher agreement to see what rights you have to your own authored work before you post the pdf. You MAY post a link to the article on the publisher's website, but be aware that the article may be available to some who have access (e.g. via an institutional license) or may be inaccessible behind the publisher's paywall that demands a fee to see the full-text article.
Fair use is a right that may be exercised by people using others' copyrighted works without first seeking permission from the copyright holder. It is wise to establish a habit of analyzing your use of others' copyrighted works under the fair use guidelines and if determined fair, then attributing that portion of the work to the original creator.
Fair use is codified by the U.S. Copyright Act of 1976 as amended (17 U.S.C. §107). The statute provides guidance to determine whether a use can be considered fair. There are no bright line rules, but rather a balancing of four factors serves to indicate whether the intended use is fair or not. Only a court of law can make the final determination should your use be the cause of litigation.
*NOTE*: Not all use in a nonprofit educational institution is or should be considered fair use. Neither does merely attributing the work to the creator support a fair use argument.
Start by reviewing the four factors and decide whether your interpretation of that factor in relation to your intended use weighs in favor or against fair use. The four factors are:
Once the analysis is complete, see whether on balance, more factors weigh in favor or against fair use. This exercise should be completed for every third party copyrighted work you want to include in your own work.
A number of tools are available to help you determine if your use is fair:
In all cases, if you use a tool to analyze the four factors or if you undertake your analysis in some other format, KEEP A COPY OF THE ANALYSIS with your project. You never know whether you will ever be called upon to justify that you undertook a good faith effort to support your assertion that your use was a fair use.
Association for Recorded Sound Collections (ARSC)--ARSC Guide to Audio Preservation
Visual Resources Association--Statement on the Fair Use of Images for Teaching, Research, and Study
If you do not believe that you have a strong fair use argument for your use of someone's work, you may always ask permission from the copyright holder.
For works registered with the Copyright Office from Jan.1, 1978 to present, the Copyright Office Online Records Catalog.
See Also: For looking up copyright holders who are writers, artists, and others in creative fields The WATCH File (created by University of Texas Austin & University of Reading, UK) may provide useful information.
Yale's Rights Clearance Guide for Digital Projects is a comprehensive guide to help users of third-party copyrighted works to determine whether permission is required and if so, how to get it. The guide includes worksheets and sample permission request forms and agreements.
The Copyright Clearance Center is a company that provides a service to clear rights for individuals wanting to use third-party in-copyright works. There is a fee to use this service, some of which goes to paying for the service, but also used for paying the original creator(s) royalties. Permissions obtained through the CCC are reliable and can be used to show that you have cleared rights for use of these works in your own work.
Not all works are still in copyright. Copyright protection only lasts for a limited period of time. Where copyright has expired, the work may be considered to be in the PUBLIC DOMAIN. Works that are in the public domain may be used freely for any purpose. If you believe the work you want to use may have an expired copyright, there are ways to check its copyright status. Rule of thumb today in the United States is that copyright lasts for the life of the author plus 70 years, but it may be different for works that were produced prior to our current law. The same applies to the notion that anything published before 1923 is in the public domain. Again, that may be true, but there may be other factors that may affect the actual date that copyright expires. A number of tools are available to help you determine whether a work is still in copyright.
Check the renewal status. For U.S. books published between 1923 through 1963, works initially copyrighted for the 28 year term may have expired at the end of that term as the authors were required to proactively renew their copyright. Stanford University has created a useful Copyright Renewal Database to look up the information for books published during this period.
Creative Commons is a licensing scheme to help creators share their work more openly with others who may want to use their works. Many authors use one of the available licenses which permit various levels of reuse (See web site for specifics on each of the licenses). The site also has an option for you to search specifically for images, videos, text and music that are available under a CC license. Works created under a Creative Commons license are still copyrighted works, they are not considered public domain and should be used only in accordance with the license applied.
Using works that are currently in the public domain is a great option! If it is truly in the public domain, you can reuse the work in any manner you like for commercial or noncommercial purposes. There are many sites that host public domain materials in addition to those in-copyright. For example, you can find public domain images from the sites of many cultural institutions including the Yale Art Gallery, the Yale Peabody Museum of Natural History, and the Yale Center for British Art. (see also: Yale University Policy: Open Access to Digital Representations of Works in the Public Domain from Museum, Library, and archive Collections (2011))
When searching in Google Images, you can filter your results by clicking the "Tools" link and clicking on "Usage rights." Also, you might try looking at the Internet resource, The Public Domain Review to find other resources or a variety of Institutional Repositories, including the Digital Commons Network that post many open access (though not necessarily public domain) resources.
In addition, unless otherwise noted, U.S. Government Works may be used by anyone without restriction UNLESS it falls under an exception. U.S. Government works are those that are prepared by officers or employees of the U.S. government as part of their official duties. Exceptions to uses of U.S. government works where reuse is restricted may include works that:
involve rights of privacy or publicity;
involve U.S. government trademarks or logos;
imply U.S. government endorsement;
may have been prepared as works for hire by independent contractors;
are not works of the U.S. government, but that of U.S. state or local governments; or
may be used in foreign jurisdictions.
For complete information on U.S. Government works see https://www.usa.gov/government-works
Carefully review the requirements of Yale University as well as the copyright restrictions on any images before digitally publishing your dissertation.
The Yale University Graduate School of Arts & Sciences Dissertation Handbook notes the following:
Illustrations are normally placed on separate pages, with the figure number and legend typed either beneath the illustration or on the preceding page. Figures and their legend pages should be numbered in with the text of the dissertation. Line drawings must be presented on the same paper as is used for the text of the dissertation, and must be drafted and lettered in black India or other non-water soluble ink. If copies of figures or drawings are to be used, they must be prepared and printed in such a way as to meet the same paper, margin, and reproduction quality standards required for the text of the dissertation. If necessary, illustrative material may be photographically reduced to meet the margin requirements. In such instances, space should be left for page and figure numbers to be typed on the page, together with the legend if one is to be typed beneath the illustration.
Excerpts Reprinted from Other Sources
Excerpts to be reprinted from other publications or sources, such as manuscript pages, maps, autographs, tables, or passages of text, must meet the same paper, margin and reproduction quality standards required for the text of the dissertation.
When material copyrighted by someone other than the author is used in a dissertation beyond the limits of “fair use,” permission must be obtained from the copyright holder for University Microfilms International to film and sell such material. Copies of all permission letters must be provided when the dissertation is submitted and attached to the UMI publication agreement form.
ProQuest (UMI) offers guidelines for authors making their dissertations available.