A Fresh Look at the Fair Use Checklist

By Kenneth D. Crews
This work is licensed under the Creative Commons, Attribution-NonCommercial-ShareAlike 3.0 United States License.

The meaning of fair use in American copyright law has been a challenge since at least 1841, when Justice Joseph Story articulated the concept in a case involving the published papers of former president George Washington.¹  In his quest for some notion of allowable use of copyright-protected works, the celebrated jurist expounded on a set of variables that seemed to make good sense for the case at hand.  Numerous court rulings over the subsequent years relied on the 1841 doctrine and expanded on factors that Justice Story isolated.  Those factors remain the foundation of today’s doctrine of fair use.  We continue to give them meaning when determining how much of a copyright-protected work one may photocopy, download, cut and paste, and convert into a music video mash-up.

The Four Factors of Fair Use

The factors of fair use are today embodied in Section 107 of the US Copyright Act, and they are the foundation of a fair use analysis.²  In 1976, when Congress fully revised the Copyright Act, Congress chose to include fair use in the statutes in order to assure that it would survive and be applicable to the rapidly changing nature of expressive media.  The four factors in the statute are:

•    The purpose of the use.
•    The nature of the work used.
•    The amount or substantiality of the work used.
•    The effect of use on the value of or potential market for the original work.

From a consideration of these four factors come well-reasoned decisions about fair use.  In practical reality, court decisions give these factors meaning in the context of the specific case and weigh the factors in the balance in order to determine the overall “fairness” of the case.  In many ways, that is exactly what individuals need to do in order to determine whether their activities are within fair use—long before a judge could ever have a chance to express his or her opinion.

The Need to Evaluate Fair Use

Although fair uses of copyright-protected works occur thousands or millions of times each day, relatively few questions are actually brought to court.  Most matters are small and not worth the litigation.  Other disputes are resolved or settled without judicial intervention.  Frankly, an abundance of copying and sharing of works is occurring at such a low level that it is generally or pragmatically out of the reach of copyright owners.  Some owners just accept it.

Nevertheless, in many of our pursuits we frequently need to evaluate whether an activity is or is not within the law.  Ample resources about fair use are available for anyone who wants to learn about the factors and their meaning.  Fair use also has become the subject of policy disputes in academia, the halls of Congress, and Geneva where many international treaties are negotiated.  On a daily basis, most fair use decisions occur at home, and in the office, and in our educational institutions, and in our libraries.  Many of those activities demand a real decision, rather than allowing it to slide unseen.

The “Checklist For Fair Use”

The “Checklist for Fair Use” is a tool intended to help individuals and institutions make a reasoned decision about fair use.³  On the surface, the checklist is a breakout of variables and facts relevant to the four factors.  It is an attempt to capture some of the circumstances and conditions that courts have identified as relevant or even important to the evaluation of each factor.  The checklist is not the only resource available for understanding and applying fair use, but a look at its origin and uses will tell much about when and how one should properly use the checklist.

The original checklist for fair use was developed in 1997 while I was director of the Copyright Management Center on the IUPUI campus of Indiana University.⁴  It was the first copyright office of its kind based at any university, and one of our principal objectives was to help the local and national academic community better understand the law and its importance to teaching, research, and other university pursuits.  Fair use is obviously a critical part of that mix.

We built a website that offered a range of materials explaining fair use and the factors, summarizing cases, and offering scenarios for how one might apply the law.  We also had a vision of developing a checklist related to fair use.  I directed the office and worked closely with my colleague Dwayne K. Buttler (now at the University of Louisville) to craft this checklist.  Fair use is based on the four factors, and an increasing number of court rulings were articulating on the meaning of those factors and singling out relevant facts and circumstances.

Our first goal in giving the checklist shape was to review the court decisions and other relevant and influential materials to isolate the facts that are appropriate for consideration with reference to each of the four factors.  An obvious example is that the statute itself says that the first factor is the purpose of the use, and the statute further specifies that the nonprofit educational purpose is part of the consideration.  That was a clear and simple fact that would arise in a given context and be relevant for consideration and weighing in the balance of the first factor.  Also straight from the statute are the references to research, scholarship, criticism, comment, and news reporting. 

Some variables have been developed by courts.  For many decisions, a transformative use is pivotal in the evaluation of the purpose factor.  Similarly, copyright law has little to do with giving credit to the author, yet courts have recognized that when a user does credit the author, it indicates the good faith of the user’s intent, and good faith tends to weigh in favor of fair use.  Regarding the second factor, or the nature of the work, a series of cases have allowed less fair use if the work is unpublished.  Some courts have allowed less fair use for highly creative works such as art or music.  Conversely, if the work is published or nonfiction, then courts tend to be more generous with fair use.  The list of variables identified in the court cases can be lengthy.  Yet, certain variables arise frequently; certain variables are particularly influential; and certain variables are especially germane to uses in the higher education context we were seeking to serve.

The result of a review of the law and compilation of variables is simply what the document says—a checklist.  It is an organized list of elements to consider and that reflects how those variables have in fact appeared in court rulings, in the statute itself, and in other influential works (such as congressional reports).  The checklist tool is not mechanical and it is not a mysterious decision-making device.  It is first and foremost a tool intended to guide users through relevant variables and remind users that in a full and robust evaluation of fair use there might be additional points to consider before making a decision.

The Efficacy of Checklists

Checklists in general have gained significant attention recently.  A new study advocates the important role of checklists for use by physicians.  In the extreme, a tool that reminds a doctor to evaluate certain variables might be a lifesaving step.  Checklists have been a mainstay for airline pilots as they assess each step before locking up the passenger jet and rolling down the runway.⁵

Checklists have found their way into other legal realms beyond copyright.  Jennifer Murphy Romig of Emory University School of Law has written a review of The Checklist Manifesto, evaluating the book’s lessons for the law.  She concludes, “Whether applied to individuals or teams, and whether applied for a competitive advantage within one organization or at the level of policy across an entire profession, checklists appear to be enormously promising.  The Checklist Manifesto is a call for all professionals to take a closer look at their processes and outcomes and their strengths and weaknesses, and to open themselves up to the possibility that rigorously applying checklists could make a real difference in improving outcomes.”  She further adds that in the legal context, “the consistent use of well-constructed checklists can help lawyers improve outcomes on behalf of clients. . . .”⁶

Checklists have become a recommended tool in the publishing world.  At the 2012 Digital Book World Conference and Expo, two executives in the world of book publishing led a program titled, “The Checklist: How a Simple System Can Radically Improve Your Process and Your Products.”  According to the program description: “A well-made checklist is neither a to-do list nor a process description: It’s a tool for preventing critical errors at critical steps in the workflow; an aid to cooperative work among partners and colleagues; and a way of highlighting mission-critical items within the mass of details.”⁷

The Checklist Function: Neither Formula nor Calculator

A checklist may have different functions in different settings, but a checklist is clearly not a formula or a calculator.  It is instead a tool for helping decision makers consider and evaluate relevant steps and variables.  In that regard, a checklist is especially compatible with fair use.  Fair use is not mechanical.  Fair use has no equations or defined answers.  Fair use is about an evaluation of the variables as applied to the factors and a weighing of the persuasive strength of those factors to reach a conclusion about the appropriate scope of fair use.

In order to arrive at conclusions that are well informed and well reasoned, the checklist helps ensure the user will in fact consider relevant elements of the fair use determination.  In the years since developing the checklist for fair use, it has been widely adopted at colleges, universities, schools, companies, and other organizations throughout the country.  Some users have employed the version exactly as originally produced in 1997.  Others have modified it to meet local needs.  In the end the checklist should assist users making a thoughtful evaluation of the four factors. 

The checklist alone of course does not tell the whole story.  Not all of the variables will be relevant in any given case.  Moreover, some variables will be more persuasive or carry more convincing heft in some situations and as a result one factor might be more influential than another.  Courts do exactly the same thing.  One should therefore use the checklist in conjunction with other general reading about the meaning of the factors and how courts evaluate and apply them.

Although I have been immersed in evaluating fair use for many years, I find myself occasionally reaching for the checklist for my own needs.  In one recent project, I was using a reproduction of an artistic image.  I was working with a student on a project and saw the checklist as an effective way for me to document my own exercise of fair use, and a meaningful way to help the student to learn about and apply about fair use.  We reviewed our circumstances and marked the relevant boxes of the checklist.  We evaluated overall the persuasive strength of the different facts and factors.  We felt sufficiently confident that the use of the image was within fair use.

We then pondered one more question: What else could we reasonably do to be even more confident that our use was indeed fair?  The checklist helped us answer that question.  By looking at the boxes that were not checked, an unmarked box about credit to the source of the image stood out.  We had shortcut the credit and could do better.  Used in this manner, the checklist helped us reach a reasoned conclusion about fair use, and it helped us review and strengthen our case for fair use—an ideal deployment of the fair use checklist.

Kenneth D. Crews directs the Copyright Advisory Office of Columbia University Libraries and he teaches in the Columbia Law School, New York City.

Endnotes:

1. Folsom v Marsh, 9 F.Cas. 342 (1841).
2. U.S. Copyright Act, 17 U.S.C. § 107 (2012).
3. The checklist and related materials are available from the website of the Copyright Advisory Office of Columbia University: http://copyright.columbia.edu.
4. Kenneth D. Crews, “The Copyright Management Center at IUPUI: Brief History, Dynamic Changes, and Future Demands,” Indiana Libraries: Journal of the Indiana Library Federation & the Indiana State Library 19 (1 November 2000): 13-15.
5. Atul Gawande, The Checklist Manifesto: How to Get Things Right (New York: Metropolitan Books, 2009).
6. Jennifer Murphy Romig, “The Legal Writer’s Checklist Manifesto,” Legal Communication & Rhetoric: JALWD, 8 (Fall 2011): 93-107.  Available at: www.alwd.org/LC&R/CurrentIssues/2011/pdfs/romig.pdf.
7. The conference program and description are available at: www.eiseverywhere.com/ehome/24240/36095/?&.

Posted: 032312
 

I have to admit to some satisfaction when I received an email earlier this year from a law student. To be sure, she was a student at a law school where I have no particular connection. It was an email out of the blue. “I just wanted to send you a quick thank you,” she began, explaining that she was a third-year law student. She was courteous about her copyright professor, but we can safely say that she was not relating well to the professor’s style of teaching, and she was not getting a clear understanding of the structure and function of copyright. She continued:

“Anyway, I downloaded all of your lectures from iTunes U and listened to them intently from my iPhone—some two times. Your lectures explained the background I needed so that the cases I was reading . . . finally made sense. You are a skilled teacher and I really appreciate that you made these lectures available to the public. My copyright exam was yesterday and your lectures made all the difference in helping me succeed. I really, really appreciate it!”

She felt good after the final exam in December. The following February she had her grade, and we can say publicly that she was very, very happy. Today she has a nice position in an established law firm. At this point I feel a bit like an infomercial: "This is not an actor. Actual results may vary." That said, I love teaching. I am especially rewarded when I discover that I was teaching when I did not even know it. I hope my delight in teaching comes through in my classroom, in my writing, and in my conference talks. I am happy to make a series of 11 podcasts available to all. I welcome your comments.

Many thanks,

Kenneth Crews

December 8, 2011

I continue to thank Neil Wehneman for his graceful encouragement and his skill in producing the series.
 

Earlier this month, The Author’s Guild and several individually named authors filed a copyright infringement lawsuit against HathiTrust and five major universities.  The scope and complications of the case make it especially unpredictable, and much has been written about the legal, constitutional, and procedural challenges that lie ahead.  I see the case in another way.  It may be instead a harsh prelude to reining in the corpus of Google Books digital files.

At the core of the case is the allegation that Hathi’s actions (“Hathi” here is shorthand for all the defendants) to receive, store, and provide limited uses of digital files of scanned books are a violation of the copyrights in those books.  If that were the entire case, we could explore the possible infringing activity and debate the application of fair use or Section 108 of the U.S. Copyright Act.  The case is hardly that simple.  It is complicated by the separate litigation brought by authors and publishers against Google Books—and the quest for a possible injunction that could effectively shut down HathiTrust.  Other blogs have underscored serious problems such as sovereign immunity and standing that weaken the authors’ case.

Passing judgment with only the complaint on file is folly, but here are a few possible directions this case may take:

The Fade Away.  Not all cases run their full course.  Some gradually disappear into a litany of legal motions, changed policies and attitudes, or distractions by other developments.  Too much is at stake here to make this option likely.  Somewhat more likely is outright dismissal or summary judgment.  We can expect to see the defendants file motions on various grounds.  The court would then hold hearings through the coming year or more just to determine if any part of the action will go forward.  Even these preludes to trial can be protracted and expensive.

The Bleak House.  The case could proceed on its own terms, leading to years of litigation at enormous costs.  A basic rule: Don’t start any litigation if you are not ready to finish.  I assume The Author’s Guild is ready to pay substantial sums to lawyers to prosecute the case.  The fees could be millions of dollars.  If Hathi is determined to test the law and press this case to conclusion, it has to get ready to defend on similar monetary terms.  A supportive law firm may offer a lower price, or a foundation may contribute its services, but the commitment of time and money is always considerable.  The outcome is utterly unpredictable.  Right now, every party might secretly wish this option away.

The Snowball.  The legal rule of joinder allows for cases on related issues to be consolidated, suggesting the possibility that the case against Hathi could be consolidated with the ongoing litigation by authors and publishers against Google Books.  The signals so far suggest that is not going to happen.  The cases may not even qualify.  Moreover, Judge Chin is hearing the Google Books case, and he declined to have the HathiTrust case assigned to him.  At least in the courts, this case will likely remain separate from Google Books.

The New Deal.  If the authors, publishers, and Google are successful in the coming months in reaching a revised settlement of their litigation, HathiTrust could easy be drawn into the fray.  Here’s how.  The previous proposed settlement would have allowed the digital scans of books produced by Google to be used by the libraries and maintained at shared repositories, such as HathiTrust.  However, the libraries and repositories may keep and use the digital books only subject to formidable restrictions.  The Author Guild’s concerns about the Orphan Works Project will probably motivate the Guild to argue for even yet tighter restrictions in the next round of negotiations.

This New Deal option could leave Hathi with difficult choices.  For example, the parties to the Google Books case (i.e., not HathiTrust) may do all the negotiations for a revised settlement, including any new restrictions for uses of digital files.  The parties would then turn to Hathi with this offer: Accept the new terms, and the authors will dismiss the lawsuit.  Hathi would have limited choices: Agree to the new deal; convince the parties to revise their settlement; or get ready to continue the litigation.  This is a loaded bunch of issues.  Leaving Hathi out of the room while negotiating about it is a poor business strategy, yet pulling Hathi into a roster of agreed conditions and restrictions seems not likely.  Under this scenario, the new terms would of course apply only to book scans received from Google, but that is a vast swath of Hathi content.

I am not an insider or a fortune teller.  But if HathiTrust is going to continue its services and have the flexibility to meet changing future needs, Hathi will have to make a strong case for the importance, the lawfulness, the reliability, and the security of its services.  HathiTrust is enormously important, but I suspect the outcome of the lawsuit will not depend on either the social significance of libraries or the procedural deficiencies of the complaint.  This may instead be a case about hard-core negotiations of practical rules and procedures.  Hathi may have to assert its position before a judge, but more likely in tough and pragmatic settlement talks.  Otherwise, negotiations taking place in a separate locked room could leave Hathi with few options.

These are my opinions, and I welcome yours.  You may have noticed that this essay includes little substantive about orphans.  The HathiTrust case is not specifically about the law of orphans, but will shape it.  That is another conversation.

Kenneth Crews
October 3, 2011

A previous version of this posting stated that Michigan’s Orphan Works Project was suspended.  It has not been suspended, but a colleague at Michigan referred me to this statement.

These links offer some background:

• HathiTrust and its services.

• Google Books and the contribution of scans to HathiTrust.

• HathiTrust proposal to provide access to orphan works.

The allegations of infringement are based on a series of actions by the university libraries and HathiTrust, much of it as an outgrowth of the Google Books project.  The libraries have since 2004 allowed Google to digitize many of their books, and in return the libraries have received a copy of the electronic files.  The libraries have contributed many of the Google digital files to the collection of HathiTrust.  Pooling the digital books in one location has had several benefits, including efficiencies of scale for digital storage and an interface for searching the full collection simultaneously.  The original scanning, the duplicate files, the mirror storage of HathiTrust all involve reproductions of the books, and that copying is the leading grounds for the claim of infringement.

As in any case, one should refrain from judgment based on only the complaint.  But this case promises to stir interesting and important issues about reproduction and copies, and about fair use and Section 108 of the Copyright Act—the statute that allows libraries to make copies for preservation and other purposes.  It is also about orphan works.  American copyright law has no provision to safeguard the users of orphan works, other than an interpretation of fair use.  Under the auspices of fair use, HathiTrust is currently preparing to launch an initiative to permit libraries and their users to access some digital files of books in the library collections that are deemed to be orphans.

If the litigation progresses, fair use will figure prominently.  In the meantime, these two issues of complication are dominant:

Orphan Works.  The complaint is about much more than just the orphan work initiative at HathiTrust, but orphan works receive ample attention.  Orphans seem to be emphasized in the complaint as an example of the expanded use of the digital files that HathiTrust is clearly willing to pursue.  For the libraries and users, that may be a good thing.  For the rightsholders in this complaint, it is far overreaching.  Moreover, the complaint cites the Google Books case and the failed efforts by Congress to enact orphan works law to argue that orphans need a legislative solution—not a private innovation.

Google Books Settlement.  This case may mean nothing or everything.  We will know soon.  The parties to the Google Books case are due in court this week, on September 15.  The Authors Guild is bringing the case against HathiTrust, and Guild is also a party to the Google Books case.  The HathiTrust case probably signals that the Google parties have not reached a new settlement, and libraries and universities will be pulled into the renewed litigation.  It could by contrast signal that the parties have reached a settlement and want steer all e-book activity away from HathiTrust into a licensing system that will be part of the settlement.  Stay tuned.

This case raises many more issues, but these are my initial thoughts.  The opinions here are not necessarily the views of Columbia University.  I welcome your thoughts.

Kenneth Crews
September 12, 2011

Want to read more?  Here is a sampling of other reports and summaries about the lawsuit:

• Author Guild press release.

• The Complaint.

• James Grimmelmann and The Laboratorium.

• ars technica article.

• Publishers Weekly article.

• Associated Press article.

Cal State soon expanded the effort and teamed with the State University of New York and the City University of New York to share expertise on issues of common concern.  The project was titled “Consortium for Educational Technology for University Systems,” but was best known as “CETUS.”  Faculty members, administrators, and librarians from the three universities met regularly over a period of about three years.  A major outcome was the completion of four publications:

Fair Use of Copyrighted Works: A Crucial Element in Educating America.  Seal Beach, CA: Consortium for Educational Technology for University Systems, 1995, 34 pp.

Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning.  Seal Beach, CA: Consortium for Educational Technology for University Systems,
1997, 32 pp.

Information Resources and Library Services for Distance Learners: A Framework for Quality.  Seal Beach, CA: Consortium for Educational Technology for University Systems,
1997, 44 pp.

The Academic Library in the Information Age: Changing Roles.  Seal Beach, CA: Consortium for Educational Technology for University Systems, 1997, 18 pp.

I was a professor at a Cal State campus when the project started.  I was part of the original planning and had the pleasure of continuing as a consultant to CETUS after moving to Indiana University.  I contributed much of the legal analysis in these publications about copyright, fair use, and distance learning.  The CETUS materials were distributed widely and posted on a dedicated website.  They filled a clear demand for helpful information about copyright and information policy, and the publications were frequently included on reading lists at many colleges and universities throughout the country.

It seems hard to believe in retrospect, but we were giving the university community new ways to think about fair use and copyright ownership.  We pushed an understanding of fair use based on the statutory factors, rather than “guidelines.”  We addressed distance education issues before Congress took up the matter and enacted the TEACH Act.  I am most pleased with the creative way we proposed “unbundling” and sharing rights, rather than claiming copyright ownership as a monolith.  We were striving to encourage sharing of rights long before open access.  The copyright notice on the publications themselves was a public grant of rights well before Creative Commons more clearly defined the concepts.  We were doing our best to encourage new ways to think about copyright in higher education.  These four publications may now look a tad like historical artifacts (especially the pictures), but they were one of the earliest resources for understanding copyright in higher education, and they frame some issues in a way that is worthy of fresh consideration today.

The original CETUS website closed years ago.  Courtesy of Academic Commons, the digital repository at Columbia University, I am happy to help make these four items available once again.  I hope you find them interesting and maybe even helpful.  Thanks.

Kenneth Crews

Version 070111

The papers and studies:

“Control of Museum Art Images: The Reach and Limits of Copyright and Licensing”

Click here for the Final Published Version.

Abstract: Many museums and art libraries have digitized their collections of artworks. Digital imaging capabilities represent a significant development in the academic study of art, and they enhance the availability of art images to the public at large. The possible uses of these images are likewise broad. Many of these uses, however, are potentially defined by copyright law or by license agreements imposed by some museums and libraries that attempt to define allowable uses. Often, these terms and conditions will mean that an online image is not truly available for many purposes, including publication in the context of research or simple enjoyment. Not only do these terms and conditions restrict uses, they also have dubious legal standing after the Bridgeman case. This paper examines the legal premises behind claiming copyright in art images and the ability to impose license restrictions on their use.

“Art Image Copyright and Licensing: Compilation and Summary of Museum Policies”

Abstract: This document summarizes and compiles terms and conditions governing image rights and reproduction from fifty art museums in the United States. The sample of museums was selected from among the 193 museums accredited by the American Association of Museums that have a primary specialty in art. For each museum, copyright and image licensing information was obtained from the museum’s website.

“Art Image Copyright and Licensing: Terms and Conditions Governing Reproduction and Distribution”

Abstract: This table provides an overview of the rights and reproduction policies of art museums within the United States as they address the reproduction and distribution of artwork reproductions. It also provides a means for comparing and analyzing how different institutions approach controlling reproduction and distribution when licensing uses of art images.

“Art Image Copyright and Licensing: Terms and Conditions Governing Appearance and Composition of Images”

Abstract: This table provides an overview of rights and reproduction policies addressing the composition and appearance of art images provided by art museums throughout the United States. It also provides a means for comparing and analyzing how different institutions regulate appearance and composition through licensing terms.

“Art Image Copyright and Licensing: Terms and Conditions Governing Third Party Rights”

Abstract: This table provides an overview of the rights and reproduction policies of art museums within the United States as they address the existence of third party copyrights in artwork reproductions. It also provides a means for comparing and analyzing how different institutions approach the issue of third party rights when licensing uses of art images.

“Art Image Copyright and Licensing: Bibliography”

Abstract: This bibliography is the result of a literature review conducted during the summer of 2009 as part of a study of art museum copyright and licensing policies. It collects literature on copyright and licensing issues pertaining to reproductions of works of art, with a particular focus on literature examining the relationship between museum rights and reproduction policies and copyright law. More generally, it includes literature on art and copyright law, examining issues such as notions of originality and the impact of copyright and licensing on the creation of new works of art. While the majority of works in this bibliography are concerned with United States copyright law, it also includes relevant English-language literature on international and comparative copyright laws.

Kenneth Crews

Version 062711
Link to published paper added 032012

I frequently get questions such as this one, and I am glad to help.  Your management of the process should follow three steps, outlined here.  By the way, your original question is about photographs in a book.  I would probably start with at least the first two steps in connection with including copyrightable materials in a video, in presentation slides, on a website, and just about any other situation.

Step 1:  Assess the materials you are planning to use.  Line up the photographs as well as any other poetry, music, lengthy quotations where rights are held by other parties.  In the example of photos of art and architecture, you may need to assess two copyrights in a single work: the photographer may hold the copyright in the photograph, but the artist or architect may hold rights in the work that is captured in the photo.  In general, make an inventory of the works you want to include in the book and carefully document all relevant information about each item.

Step 2:  Determine the copyright status of each work—and how you may appropriately use it under copyright law.  What does this mean?  In most situations, you may include a photograph (or other copyrighted work) in your book if your use is in one of these categories:

•    The Materials are in the Public Domain:  Copyright does not protect everything, and copyrights do eventually expire.  Some other works, such as works of the U.S. government, are not copyrightable.  As a result, many works do not have copyright protection at all and are therefore available for use.

•    Your Use is Within Fair Use:  The law grants a right of fair use to the public under certain circumstances.  However, Congress deliberately created a fair use statute that gives no exact parameters; instead one must evaluate and balance four factors to determine whether that specific use is permissible.  Our website offers guidance about fair use and examples of court rulings about images and more.  Other exceptions may also apply, such as this one about photographs of architectural works.

•    You Have Permission from the Copyright Owner:  If the materials are protected by copyright, and your use is not otherwise allowed, you may need to contact the copyright owner and seek permission.  Our website includes additional information about permissions, as well as model permission letters.

•    The Materials are Creative Commons or Similarly Licensed for Your Use:  Some materials are prelicensed for many uses, effectively granting advance permission.  One of the most familiar examples is the Creative Commons license that is now applied to many works, permitting, for example, noncommercial uses with attribution.  Many books, journals, and image databases now offer their content with a CC license, making your use of the works easier and more effective.

Step 3: Negotiate with your publisher.  The publisher controls the printing press, so realistically the publisher has final say over what it will and will not include in the book.  You may resolve that something is fair use or public domain, but your publisher may disagree.  Have an honest talk with the publisher.  These are matters that are open to disagreement and persuasion.  Also, talk with the publisher before you start writing for permissions.  You and the publisher should agree on what items need permission and ascertain that the terms of the permission letter adequately encompass your current and future needs.

Finally, be flexible.  You might have to scrap or replace items you dearly wanted to include.  You might not find the copyright owner; a permission fee might be excessive; the great photograph you took at the Louvre might not look good when reproduced in black and white.  Dealing with copyright may not have been part of your plan, but addressing these issues diligently and creatively can help make your the process of writing your book more satisfying.

Kenneth Crews

Version 062411

I have read your general guidance about when I can show movies in the classroom.  My question is about showing films in university dormitories.  I am assuming that a typical bunch of students gathered in an average dorm room to watch a movie is okay.  I also suspect that a planned “movie night” advertised in advance and open to all students in an auditorium is probably not okay.  What about the large group that spontaneously gathers in the dorm lounge when someone has the latest new movie?  When does that event turn into a “public performance”?

Let’s separate two points.  First, what is a public performance?  If the performance of a copyrighted work is “public,” then it treads on the rights of the copyright owner.  Second, even if it is “public,” when is the performance allowed anyway?  We previously have outlined some circumstances about when you may show the film, even to a large group and maybe even at an event open to the public.  At the university, we are often able to fit the performance within the classroom exception at Section 110(1).  More about that possibility here and here.  “Movie night,” for entertainment purposes, is not likely to qualify.

Which takes us back to the fundamental question: What is a public performance?  If a big, open, advertised event is “public,” how closed does the event have to be to transition into being a “private” performance?  The Copyright Act offers a few possibilities for defining a “public performance,” but this is the provision of greatest relevance: “to perform . . . it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. . .” (see the definitions in Section 101).  The performance may be public simply because the film is shown at a place open to the public.  Dorm rooms and even lounges and other common areas are usually not open to the public.  Courts have ruled that semi-public locations, such as private clubs are “open to the public,” but dorms are different.  You have to apply to the college, be admitted, register, and (we hope) use your passkey every time you enter the building.  At least one court has ruled that watching movies in a hotel room is not a public performance.

The statutory language quoted above also indicates that showing the movie in the dorm lounge may be “public” for other reasons.  Consider this variation on your question: The student in the dorm proudly announces that she has the hottest new movie and pops the disk into the DVD player attached to the big screen TV in the dorm lounge.  Other students are ready for a break and soon more than 40 or even 50 students gather to watch.  The performance may be public if attended by a “substantial number of persons” and if those persons are outside the “normal circle” of family and friends.  We don’t have any legal precision about the “number of persons.”  The best gauge may be custom.  If 40 students in the lounge is typical in a big dorm, then that may be okay.  Even if the number is deemed “substantial,” the gathering may be okay if it is within the “normal circle” of family and its social acquaintances.  This is a tough call.  The language really begins with identifying a “family.”  A report from Congress (see page 64 here) does graciously note that one person living alone could constitute a “family.”  So if that “student-family-person” gets the party started, are all of the other people who gather around the screen her normal circle of social acquaintances?  The answer depends on the size and character of the usual gathering of friends in a dorm setting.  If a shout down the hall for an impromptu party among dorm friends would draw 40 happy people who know one another well, then this assembly may qualify as “family and friends,” rather than as a “random flash mob.”  In that event, the performance may not be deemed “public” and thus would not violate the law.

If you are looking for an absolute and air-tight legal answer to this situation, there isn’t one.  Yet it seems reasonable to conclude that an impromptu movie gathering–not advertised in advance, with no elaborate planning and certainly no admission fee, realistically attended only by the dorm residents who frequent that particular lounge–would not be a public performance.  Showing the movie should be okay.  Enjoy the vampires.

[This Q&A is courtesy of the Copyright Advisory Office of Columbia University.  It is for information purposes and is not legal advice.]

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Our library purchases many motion pictures and other audiovisual works, typically on DVD.  Sometimes the transaction is a simple purchase, but often the films are sold at different prices (i.e., higher prices) for libraries and educational institutions.  In addition, the sales to libraries often include additional terms on the purchase order or invoice about “performance rights” and such.  Do I have to pay the higher price?  Is the fine print that purports to restrict uses of the film valid and enforceable?

Good questions.  Let’s deal with the first one.  Here is a common situation: You can find a film on DVD in a store or online available to the public for $20.  You can find the same DVD from your library supplier at the special “educational” price of $120.  Discrimination?  Certainly!  Probably perfectly legal, but crummy.  Quite simply, the supplier is pricing it higher because some libraries can afford it.  The supplier might also rationalize that libraries squeeze more uses from one disk, perhaps even displacing some individual sales.  Maybe.  Whatever the rationale, may a library just buy the $20 version for the collection?  Legally, the answer is probably yes in ordinary situations.  A library is generally free to shop at Target or Amazon for movies, they they have what you want.  In the process, I would watch for these possibilities:  First, if the sale appears in any way clearly and contractually limited to individuals only, and not to libraries, I would pause to confirm whether I am under any contractual obligation.  Second, I might have some ethical hesitation.  Many specialized and technical films simply do not make many individual sales, and the “educational price” may be part of the bargain to sustain the market.  Frankly, I have to balance that against the ethics of charging more.  Bottom line: Retail purchases of mass-market DVDs are likely fine, but give another look when buying more specialized works or when contractual obligations are injected into the deal.

Your second question about fine print is more of a legal question.  I am of the school of thought that a unilateral statement (such as “Home Use Only”) does not override the statutory right to show the audiovisual work in the classroom.  A century ago, the U.S. Supreme Court refused to enforce statements printed on books that would have restricted resales.  However, look once again for truly contractual terms.  Watch for clear notices on invoices, purchase orders, and license agreements that attempt to allow or not allow various uses of the film that may be important for you.  In general, you can by contract redefine the terms of use.  You can by contract give up rights that you have under law—and at the same time acquire additional rights.  Know that the law allows.  Know what you are gaining or giving up when you enter into a contract.  If the "educational price" gives you something that you don’t already have, then it may be worthwhile.  Putting the two questions together, you might be more willing to pay the higher educational price if you were getting something more for your money—perhaps the right to upload the film onto a server, or perhaps the ability to do a remix with instructional materials for teaching purposes.  Most important, read and understand the fine print and make a careful and informed decision.

[This Q&A is courtesy of the Copyright Advisory Office of Columbia University.  It is for information purposes and is not legal advice.]

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In general, the copyright in a new work belongs initially to the person who created it, so the student who wrote the dissertation holds the copyright, except in highly unusual situations.  For instance, an employer supporting the student’s studies or an outside funding source may lay claim to whatever intellectual property is created.  These types of arrangements are unusual and are fraught with ethical and pragmatic challenges.  Be careful when you sign any such agreements.

Submitting the dissertation to ProQuest does not change the copyright ownership.  The author may choose to make the work available on ProQuest through either the Open Access or traditional publishing models. Similarly, posting the dissertation to the university repository (such as Academic Commons at Columbia) does not transfer the copyright.

A transfer of exclusive rights is not valid unless the transfer is in writing and is signed by the owner.  A grant of a nonexclusive license, by contrast, does not have to be in writing, although some documentation of the deal is a good idea.  An example of a “license” would be permission to let someone post your work to a website.  A “nonexclusive” license is one that you grant, but you may grant to other parties as well.

ProQuest also offers the service of registering your copyright with the U.S. Copyright Office.  Once the registration process is complete, you can look for the registration records online.  Search your name in the database.  For example, a search for “Crews Kenneth” under Name turns up nine registered works.  The item with Copyright Number TX0003024199 is my dissertation.  These records are at least evidence of your claim as of the filing date.  Registration has other implications and benefits, but that is a longer story we can save for another day.  Meanwhile, the registration in your name will surely satisfy your publisher’s questions about copyright ownership.  Even if you did not register the work, your confirmation that you have not signed any previous agreements will probably be persuasive.

[This Q&A is courtesy of the Copyright Advisory Office of Columbia University.  It is for information purposes and is not legal advice.]

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