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Frequently Asked Questions

[Editor's note: the answers to many of these questions are taken verbatim from the previous edition of the MLA Copyright Website. Many of these are out of date and are undergoing revision, but are included here in the meantime. All answers on this page are subject to change. If you have questions, please feel free to contact the editor.]

Warning: copyright laws are both complex and subtle, and the penalties for mistakes can be severe. The material on this page is intended as a helpful resource, but should in no way be considered legal advice. It is always advisable to consult qualified legal counsel when establishing policies or otherwise taking actions which might constitute infringement.

Copyright In General

Copyright is one of three types of laws (the others being trademarks and patents) through which congress exercises its constitutional authority "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." (U.S. Const, art. I §8 cl.8)

The exclusive rights which Congress grants under the copyright are:

  1. To reproduce a work,
  2. To prepare derivative works,
  3. To sell, rent, lease, lend, or otherwise distribute the work,
  4. To perform the work publicly,
  5. To display the work publicly, and
  6. To publicly perform a work on a sound recording via digital transmission

These exclusive rights are cumulative and may overlap. The exclusive right to perform a work publicly is limited to "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works," (17 USC 106(4)) and to sound recordings in the case of digital audio transmissions (17 USC 106(6)).

The U.S. copyright law is contained in the U.S. Code, Title 17. Section 106 lists the exclusive rights, while sections 107-122 cover limitations in the scope of copyright.

To qualify for copyright protection, a work must satisfy two requirements: it must be original, and it must be fixed in a tangible medium of expression. The law leaves the phrase ''original works or authorship" undefined, but does list eight tangible media of expression which are included:

  1. literary works
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works

Works need not necessarily be completely original to qualify for copyright protection. The law also protects original contributions to derivative works.

The scope of copyright in general is covered in 17 USC §102 and derivative works are covered in §103. Works created or published outside the United States are covered by §104 and §104a.

Works which are not original, or which are not tangibly fixed, are not protected. The work need only display a modicum of originality, but original authorship must be present. An example of a work which is not protected due to lack of originality is the white pages of a phone book (see Feist v. Rural, 499 U.S. 340 (1991)).

The law identifies several classes of material which are not subject to copyright protection:

  • Ideas
  • Procedures, processes, systems, and methods of operation,
  • Concepts and principles
  • Discoveries

As this relates to music, ideas for compositions are not protected, nor are styles of performing or new ways of generating sounds. A composition that exists only in the composer's head is not eligible for copyright protection because it is not fixed in a tangible medium of expression. Similarly, the content of an improvisational jazz performance is not covered unless it has been recorded.

Since ideas are not subject to copyright, expressions of ideas may not be subject to copyright if (as in the case of most recipes) if the expression is essentially the only way to express the idea. This is known as the merger doctrine.

In addition, "sweat of the brow" is not protected by copyright. Intensive labor expended in creation of a work is not in itself sufficient to earn copyright protection (Feist).

Generally, titles of compositions, songs, books, etc., and entities of similar scope are not subject to copyright protection, though they could be subject to trademark laws.

The length of copyright is normally a function of one of three variables: the date of publication, the date of creation and the death of the author. In general:

  • Copyright expires 70 years after the death of the author or, in the case of joint works, the last surviving author.
  • In the case of corporate authorship, copyright expires 95 years after the publication date.
  • In the case of unpublished works where the author's identity or date of death is not known, copyright expires 120 years after the work's creation.

There are numerous complicating factors, not the least of which is the fact that most works published prior to the 1976 copyright revision are subject to the formalities imposed by the 1909 copyright act. For helpful, and more thorough coverage of the topic, see Peter Hirtle's chart illustrating the Copyright Term in the United States.

The law governing copyright term is found in 17 USC Ch. 3.

The Public Domain (often abbreviated, "PD") is a body of intellectual material which is not under copyright and may be used freely without permission. This includes:

  • Works which the owner has explicitly moved into the public domain,
  • Works in which copyright has expired (this includes all works published before 1923),
  • Works in which copyright has lapsed due to failure comply with necessary formalities such as renewal and notice (applies only to works published before March 1, 1978), and
  • Works created by the United States Government (see 17 U.S.C. §105), as well as the works of some state and local governments.

For more detailed information about the copyright term under United States Law, see Peter Hirtle's Copyright Term in the United States.

As long as they constitute copyrightable material and are fixed in a tangible medium of expression, unpublished works are protected by copyright regardless of national origin.

The law governing the inclusion of unpublished works is 17 USC §104.

Each individual work contained within an anthology or compilation carries its own copyright. The compiler is responsible for obtaining permission to use copyrighted material in a compilation. Unless a transfer of copyright is negotiated with the copyright owner, the work of each author remains under its original copyright.

The compiler owns the copyright in any original material contributed to the compilation. In some cases, the arrangement of an anthology or compilation may itself be protected; however, the minimal standard of originality must still be met. A simple alphabetical arrangement does not qualify for protection.

Public domain material used in a compilation remains in the public domain and may be reproduced without permission.

The law governing compilations is 17 USC §103

Yes. The United States has signed several treaties governing copyright in foreign works, which have been ratified by the Senate and incorporated into U.S law. Though there are exceptions, works published outside the United States normally receive similar or identical treatment to works published within the United States.

Beginning January 1, 1996, many works that were out of copyright in the United States, but under copyright in other countries, were restored to copyright in compliance with the General Agreement on Tariff's and Trade (GATT) to which the United States is a signatory.

Most of the law covering copyright in foreign works is contained in 17 USC §104. The law governing the restoration of copyrights under GATT is found in §104a.

For the purposes of copyright, a "phonorecord" is a material object to which sounds are fixed. This includes digital media, such as compact discs and digital audio tapes, as well as analog media such as records, wax cylinders and cassette tapes. It does not include audiovisual works, so DVDs are not included (though DVD-A likely is, and there may be a separate copyright for an appendix soundtrack).

"Sound recordings" are distinct from phonorecords. Sound recordings are defined as works that "result from the fixation of a series of musical, spoken, or other sounds...regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." As with phonorecords, sound recordings are distinct from audiovisual recordings.

Essentially, "phonorecord" refers to a physical object, while "sound recording" refers to intellectual content. A phonorecord can contain several sound recordings (different works recorded on the same disc), while one sound recording can be fixed on several different types of phonorecords (cassette tape, LP record and compact disc, for example).

The official definitions of the terms can be found in 17 USC §101

Fair Use

  • What is Fair Use?

Fair use is a privilege provided for by the United States copyright law, which allows for the use of copyrighted material without permission. It is an affirmative defense, the concept for which grew out of more than a century of case law. The concept is very loosely defined by the law, and courts have repeatedly (for example, in Campbell v. Acuff Rose Music) stated that fair use must be determined on a case-by-case basis, making it one of the most complex areas of copyright law.

What exactly constitutes a fair use is left open by the statute. For example, the law does not exclude any of the exclusive rights from fair use, but it does specifically include the right of reproduction. The law lists four factors to be considered in deciding fair use cases. And though courts consistently weigh each of the factors individually, the law does not exclude the possibility of other possible factors.

Purpose plays an important role in determining whether a use is fair. The law suggests several possible fair uses, such as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," but this is not an exhaustive list. Other factors to be considered include, but are not limited to: the nature of the work (is the work published or unpublished? factual or creative?), the amount used, and the effect on the market for the work.

The law governing fair use is contained in 17 USC §107.

Reserves

The Copyright Act does not specifically address the rights of copying for reserve. General practice among libraries rests on the assumption that such copying rights stem from Section 107 and/or Section 108 of the Act. Both ALA and ARL have asserted that the library reserve room functions as an extension of the classroom and, thus, is permitted to provide copies of copyrighted works under Section 107, related to the rights of copying for purposes of teaching.

ARL also asserts that Section 108(d) and Section 108(e) provide for the copying of copyrighted works for reserve. However, since these sections of the law do not apply to musical works, as per Section 108(h), the rights for copying of musical works for reserve would derive almost entirely from Section 107. This is also affirmed in the Second Report of Register of Copyrights, January 1988, which states, "As the legislative history of Section 108 makes clear, reproduction of music, pictorial and graphic works, motion pictures and most audiovisual works for private study, scholarship, and research is to be governed by fair use under Section 107."

Single copies Under Section 108(d), a library has the right to reproduce for a user single copies of entire articles or small parts of other copyrighted works. Under Section 108(e), a library has the right to reproduce for a user complete works or substantial parts of works if a copy cannot be obtained at a fair price. This has been interpreted to mean that libraries can make single photocopies of entire articles, among other items, or entire works for reserve, following the provisions of Section 108(d) and (e), at the request of faculty members. [ARL/Repro], [Martell] The Classroom Guidelines also provide for the reproduction of single copies of entire articles, book chapters, etc. under Section 107.

Multiple copies The Classroom Guidelines for multiple copies are stricter, applying numerical limits which effectively mean that most articles, essays, and book chapters can not be copied in their entirety. [Martell] ALA's Model Policy is less restrictive, asserting, "Fair use cannot always be expressed in numbers -- either the number of pages copied or the number of copies distributed. Therefore, you should weigh the various factors listed in the Act and judge whether the intended use of photocopied, copyrighted material is within the spirit of the fair use doctrine." ACRL has also taken a broader position: "Colleges and universities and their libraries should continue to interpret the Copyright Act in a manner that is in the spirit of the law and consistent with the rights and needs of both copyright proprietors and the academic community. . . ." [ACRL]

Musical materials Section 108(d) and (e) do not apply to musical materials, so the copying of musical materials for reserve is generally justified under Section 107, or fair use. In this instance, the Music Guidelines are more restrictive for musical works than the Classroom Guidelines are for prose works by denying the right to reproduce single or multiple copies of "performable units." The applicable language in A.2 of the Music Guidelines is stated broadly enough to encompass both the copying of music scores and the dubbing of music sound recordings, though neither is specified. The Music Guidelines reflect the minimum standards of fair use, and it can be argued that there is no reason to assume that the philosophy which engenders ALA and ARL positions mentioned above under Multiple copies is not equally applicable to the photocopying or dubbing of complete individual movements, sections, or other performable units of music scores. ARL has suggested that the right to make and distribute copies of a single work, as agreed to in the MLA/MPA amendment to Section 108 [Report], may already be given under Section 107. [ARL/Repro]

Section 107 alone is pertinent to this question, since Section 108 deals only with single photocopying. Given the position that the reserve room is an extension of the classroom, and that fair use includes the making and distribution of multiple copies for classroom use, it has been asserted that multiple copies are permissible for reserve. [ARL/Repro], [Hutchings], [Martell] The Classroom and Music Guidelines both allow for the creation of multiple copies. Practice varies among universities and colleges, as reported in the literature: some accept or make only single copies of items for reserve use without written permission; some accept multiple copies from, but do not make them for, requesting faculty; less often, some create multiple copies upon faculty request. [Butler], [Spec.]

The ALA Model Policy recommends that, in line with Section 107(1) and (3), "the number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material" and "the amount of material should be reasonable in relation to the total amount of material assigned for one term of a course taking into account the nature of the course, its subject matter and level." It suggests that in most cases a reasonable number of multiple copies for reserve will be less than six. Additionally, the policy supports the creation of multiple copies in instances where there is not time to obtain the necessary permission from the copyright owner. [Hutchings] As in all other instances of copying for reserve, each copy should contain a notice of copyright.

At the very least, Section 108 allows for the copying of copyrighted materials by libraries under provisions specified in that section. Even music materials may be copied under Section 108(b) and 108(c). There is no reason to assume that copies made under the provisions of Section 108 could not be placed on reserve. Such copies should contain a notice of copyright. Additionally, the copies made under Section 108(d) and (e) require that the copy become the property of the user, suggesting the need for such copies to be returned to the faculty member at the end of the term. [ARL/Repro].

Under Section 107:
ALA's Model Policy states: At the request of a faculty member, a library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those governing formal classroom distribution for face-to-face teaching . . . . These guidelines apply to the library reserve shelf to the extent it functions as an extension of classroom readings or reflects an individual student's right to photocopy for his personal scholastic use under the doctrine of fair use." [Hutchings] Surveys and reviews of college and university libraries' policies suggest that this philosophy is prevalent, though not uniformly implemented in terms of creating multiple copies, determining ownership of copies, specifying who does the copying, and providing for the reuse of copies [Butler], [Spec.]. Assuming the applicability of the Classroom and Music Guidelines, carefully defined levels of copying for reserve use is permitted by them, as well. As in question 3 above, any copies of materials made from reserve should contain a notice of copyright.

It is worth noting here that the ALA policy clearly states that it is the right of the library to make the copies; i.e., it is not necessary to receive the copies from the faculty member. However, as a practical matter, to protect themselves from liability, many libraries require faculty members to provide the copies, especially in the instance of requested multiple copies. [Spec.] Additionally, it is important that the copying activity for reserve be initiated by the faculty member and not the library. [Hutchings], [Martell]

As with the Copyright Law, no specific mention of reserve use is made in either set of Guidelines. However, if Section 107 and Section 108 of the law can be said to apply to reserve use, so can the Guidelines, assuming the validity of these documents, which has been seriously and widely questioned due to their restrictiveness with respect to classroom situations [Martell], [Hutchings], [ACRL], [Spec.]. There is a wide variety in the degree and manner that colleges and universities implement the Guidelines for reserve use [Butler], [Spec.].

Additional Sources:

The Classroom Guidelines specify that "Copying shall not be repeated with respect to the same item by the same teacher from term to term" (Guidelines III.C.c). This presumes the ability of the teacher to obtain the necessary permission for copying the materials in the time frame following the first instance of copying. The ALA Model Policy also supports this view, stating, "The classroom or reserve use of photocopied materials in multiple courses or successive years will normally require advance permission from the owner of the copyright." [Hutchings]

In this instance, as with other aspects of the law, college and university libraries differ in practice: some return all copies, single or multiple, to faculty members after each term; others are willing to maintain a single copy for reuse, without obtaining additional permission for use. [Spec.] A review of practice shortly after the enactment of the law suggested that some librarians felt that there was no need to limit in this manner since the law and Classroom Guidelines refer to the repeated copying and not repeated use of material. [Butler]

Preservation

17 USC §108(b) and (c) provide for preservation copying for libraries. Subsection (b) allows libraries to make preservation copies of unpublished works currently in their collection. Subsection (c) allows libraries to make replacement copies for published works that are "damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete." A format is obsolete only if machines to render the objects is no longer reasonably available in the marketplace.

Permission to copy applies only to libraries and archives whose collections are 1) open to the public and 2) open to researchers outside of the institution of which the collection is a part. The copying for preservation or replacement may not be made for the purpose of direct or indirect commercial advantage. Up to three copies made under subsections (b) or (c). If these copies are made digitally, they are not permitted to leave the library's premises in digital form.

If you can obtain the disc from a distributor or publisher at a fair price then it should be purchased. If it is not possible to purchase the disc from a vendor at a fair price then, provided you meet the three requirements outlined in 17 U.S.C. Sec. 108(a), you may invoke section 108(c) and make a copy of the missing disc to replace the lost one.

The three requirements are that:

  1. The reproduction or is made "without any purpose of direct or indirect commercial advantage,"
  2. The library be either open to the public, or, at the least, available to those outside the library's community who are doing specialized research, and
  3. The reproduction include a copyright notice or, if no copyright notice exists on the original item, an indication that the work may be protected by copyright.

Provided that the library has, after a reasonable effort, determined that an unused copy of the microfilm cannot be purchased at a fair price, then this should qualify for copying under 17 U.S.C. Sec. 108(c) since the reel has been damaged and is deteriorating. If the microfilm is available at a reasonable price, then copying under Sec. 108(c) is not permitted. Unfortunately, the law does not specify what constitutes a reasonable effort, but the House Report on the bill (H.R. Rep. No. 94-1476) states that while it will vary from situation to situation, Congress' intent is that it would always require searching in commonly-known, U.S.-based trade sources, the publisher or copyright owner, and any authorized reproduction services. The library may not circulate digital copies made under Sec. 108(c) outside the library's premises, but analog copies may be circulated.

If the library's acquisition of the microfilm was subject to a binding licensing agreement, then the terms of that license will supersede any provisions in the law when the two are in conflict.

See: U.S. Congress, House of Representatives, Committee on the Judiciary, Copyright Law Revision, 94th Cong., 2nd sess., 1976, H. Rept. 94-1476, 75-76.

Digitization of entire collections generally relies on Fair Use (17 USC Sec. 107), so the question of whether a library may legally do this depends heavily on the specific circumstances of the collection, the intended use, the manner in which the digital copies will be made available, the availability of the materials on the market, and other factors. A mass digitization project should not be attempted without first consulting your institutional counsel or a qualified attorney.

This is an untried area in which the law lags behind the technology. You may be able to send the digital preservation copies of items in your collection to workstations within the library or on campus in the same way that many libraries 'broadcast' recordings to listening rooms and/or carrels.

You may not distribute copyrighted recordings over the internet to the world at large, however. The relevant case is Frank Music vs. CompuServe concerning music files exchanged through CompuServe bulletin boards (Frank Music Corp. v. CompuServe, Inc., No. 93 Civ. 8153 (S.D.N.Y 1993)). ASCAP, BMI, and the Harry Fox Agency now have licensing agreements for broadcasting sound over the internet for commercial or non-educational purposes.

If you can obtain the part from a distributor or publisher at a fair price, then it should be purchased. If the part cannot be purchased from a vendor at a fair price then, provided you meet the three requirements outlined in 17 U.S.C. Sec. 108(a), you may invoke section 108(c) and make a photocopy of the missing part to replace the lost part.

Parts needed for an imminent performance may be copied according to the Music Guidelines, as long as replacement parts are then purchased.

The three requirements are that:

  1. The reproduction or is made "without any purpose of direct or indirect commercial advantage,"
  2. The library be either open to the public, or, at the least, available to those outside the library's community who are doing specialized research, and
  3. The reproduction include a copyright notice or, if no copyright notice exists on the original item, an indication that the work may be protected by copyright.

This activity would be at potential risk. Gasaway and Wiant in Libraries and Copyright : a Guide to Copyright Law in the 1990s state that this is most likely infringement of copyright. They cite Basic Books Inc. v. Kinko's Graphics Corp. (758 F. Supp. 1522 (S.D.N.Y. 1991)) where, "the court held that the copying of articles and book chapters for course packets infringed the rights of the copyright holder. The impact on the market for the value of the work was... 'more powerfully felt by authors and copyright owners of out-of-print books...'" However, the authors do not provide a scenario with an out-of-print item ([Washington, DC : Special Libraries Association, 1994], 29).

The deterioration is anticipated in this case and permission should be sought from the copyright holder. Robert Oakley in Copyright and Preservation: A Serious Problem in Need of a Thoughtful Solution, says that "...it is reasonable to assume that the preservation copy will have to be made sometime before the work is completely lost, and that a library may prefer to continue to use the original as long as possible." ([Washington, D.C.: The Commission on Preservation and Access, 1990], 25). Case law does not exist to guide educational institutions regarding such actions.

The answer to this question mainly lies in the libraries and archives exception in 17 USC Sec. 108. The specific subsections under Section 108 mentioned here are format neutral.

Preservation copying is specifically provided for in subsections (b) and (c) of 17 USC Sec. 108. The law provides that libraries may make up to three copies of a work when all of the following conditions are met:

If the work is published: 1) the library and conditions of copying the item meet the conditions specified in 17 USC Section 108 (a); 2) the library has made a reasonable effort and determined that they cannot find an *unused* copy at a fair price; and 3) The item is either damaged, deteriorating, lost or stolen, or, in the case of recorded media, it is no longer possible to find the device used to play it on the market, or the appropriate device is no longer manufactured (This paraphrases Section 108's fairly narrow definition of "obsolete").

Note: Under this particular exception to copyright law, it is not possible to copy an item because of anticipated damage, deterioration, loss, or theft of an item.

If the work is unpublished 1) the library and conditions of copying the item meet the conditions specified in 17 USC Section 108 (a); 2) the item is currently owned by the library, and 3) the copy is made solely for preservation or security purposes (including depositing a copy in another library, under the LOCKSS principle).

  • Regardless of whether the work is published or unpublished, you may circulate the copies you have made with one exception: you may not circulate digital copies (regardless of whether the original was digital) outside the library's premises, which is generally interpreted to mean the physical library building. Analog copies may be circulated beyond the library's walls.

Note that there is no requirement to find an unused replacement if the work is unpublished because the item is presumed to be unique. For this reason, the law allows preemptive copying of unpublished works, but not published ones (which must already have been affected in some way before they can be duplicated for replacement).

Unlike other provisions in Sec. 108, these provisions apply to all formats, including musical works, audio, video, photographs, etc.

These requirements are codified in the law as 17 USC Section 108(b) and (c).

Michael Brewer and the ALA Office for Information Technology Policy have created- and recently revised- an interactive web tool which also may be helpful for guidance on Section 108 questions.

However common the practice might be, it seems to go against copyright law which states that only libraries and archives (See Preservation Law) may make copies for this purpose. Even then, library and archives may only do so within certain circumstances.

Additionally, this practice does not seem to fall under any of the four fair use provisions. Usually, although there are exceptions, the use is neither non-commerical, nor transformative. It is music created to be sold (at a profit). Usually, in such cases, the entire work is copied. And, music of this nature, is generally inexpensive and not considered permanent in nature--thus effecting the market.

Many assume incorrectly that the ASCAP, BMI, and SESAC licenses that many schools have allows for both performance and recording. This is not so. The licenses, are almost always for performance only. However, documenting an institution's activities would seem to allow for archival recording. Additionally, almost all music pedagogues believe it is very important for students to be able to listen to their own performances as well as performances from previous years. This can fall under the "educational purposes" provision in copyright law. The Guidelines for the Educational Uses of Music provide (under "Permissible uses") that " A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher."

Access to, or distribution of these recordings is a very difficult issue and MLA has taken no "official" position. However, based on many libraries current policies, we can extrapolate some "unofficial" practices. Guest artist concerts are generally handled on a case by case basis and are almost universally excluded from the following practices.

  1. Almost all libraries allow anyone to listen to these recordings on premises as they are documents of the activities of the institution.
  2. Almost all libraries allow performers to get copies of their own performances in one way or another. Some schools will distribute those at the time of recording. Others allow performers, and only performers, to request, or make, dubs of such performances.
  3. Most libraries will make recordings of unique works or performances in their collection for scholarly use -- especially for other libraries. A suggested way to ensure "appropriate use" is to require the request in writing on institutional letterhead stating the purpose for the request, the intended use, the fact that such work was not available commercially (showing what steps had been taken).
  4. Some libraries will allow any patron to make dubs themselves on premises. The copyright issues are up to the patron to resolve, in that case, just as photocopying works in the library. To be safe, a copyright notice should be placed on each recording, to make it clear that these works are protected. Additionally, some information at equipment indicating that copyright is the patron's responsibility should be provided.

According to USC 17 Sect. 108(c) it is most likely safe to replace the page. The library or archive should first make a reasonable effort to obtain an unused replacement copy at a fair price.

No. 17 U.S.C. 108 is intended to cover the copying and replacement of items which are presently deteriorating, not items which may in the future begin to deteriorate.

Sound And Notation Files

Yes and no. You must secure permission if the notes or editorial marks of the edition are apparent in the sound file.

However, if the music is not traceable to any one specific edition, then permission probably wouldn't be necessary.

In the case of Urtext, where there should be no fingerings, slurs, notes, etc. added by an editor without indicating such, it should be safe to use.

Yes and no. You must secure permission if the typography or editorial marks of the edition are used in any type of reprint, including electronic.

However, if the music is transcribed to another format (using a notation application, for example), and if it isn't traceable to any one specific edition, then permission probably wouldn't be necessary.

In the case of Urtext, where there should be no fingerings, slurs, etc. added by an editor, it should be safe to use.

Video

Yes. For libraries having questions about copyright of videos, the most relevant sections of the U.S. Copyright Law are Sec. 107 (fair use), Sec. 108 (library uses of copyrighted materials), and Sec. 110 (public performance of audiovisual works).

All audiovisual works, such as films and videos, are subject to the exclusive rights outlined in Sec. 106. Although rights of reproduction, adaptation, distribution, public performance, and display belong to the copyright holders, the doctrine of fair use (17 USC 107) applies to these audiovisual works, as it does to all published and non-published works. When trying to tell whether a specific use is exempt or not, it is best to remember that when libraries purchase a videocassette, they purchase the physical object, which is separate from purchasing the rights to the content. Copyright laws determine what libraries may and may not do with the physical videotapes they own without infringing upon the copyright they do not own.

For libraries having unattended equipment capable of making copies of videos, it is not necessary to police the use of these machines. Such equipment may instead be posted with notices, such as: MOTION PICTURE FILMS, VIDEOCASSETTES, VIDEODISCS, AND OTHER NON-PRINT AUDIOVISUAL MATERIALS ARE PROTECTED BY COPYRIGHT (17 U.S.C.S. 101 et seq.). UNAUTHORIZED USE OR COPYING MAY BE PROHIBITED BY LAW.

It is recommended that every library or library system write a copyright policy specifically mentioning uses of audiovisual materials. This should be thoroughly checked by the institution's legal counsel.

Most performances of a video in a public library would be an infringement, requiring a public performance license. Libraries which allow groups to use or rent their public meeting rooms should require the group to secure all necessary performance licenses and exempt the library from any penalties for any failure on their part to do so. The only place a video may be shown to a group without having performance rights granted is in a face-to-face teaching situation in a regularly-occurring class at a nonprofit educational institution. Public libraries do not usually meet the definition of a nonprofit educational institution in the context of having a systematic course of instruction having an instructor and students. If your library does sponsor regular classes in which videos are to be used, however, such use may possibly be covered. (17 USCS Sec. 110). Consult legal counsel, and have a copyright policy approved by them.

If a public library allows patrons to view videotapes in the library, the performances should generally be limited to one person or no more than one family at a time. A library may protect itself from possible lawsuits by posting public notices about copyright laws on video equipment. Such notices might read: MOTION PICTURE FILMS, VIDEOCASSETTES, VIDEODISCS, AND OTHER NONPRINT AUDIOVISUAL MATERIALS ARE PROTECTED BY COPYRIGHT (17 U.S.C. Sec. 101 et seq.). UNAUTHORIZED USE OR COPYING MAY BE PROHIBITED BY LAW.

Contact the individual publishers of videos already in the library's collection and seek (and pay for) performance permission. Keep meticulous records if you do this.

Performance of a commercially produced video in a public library to members of the general public is an infringement if performance rights are not granted by the copyright holder. The only place a video may be shown to a group without having performance rights granted is in a face-to-face teaching situation in a regularly-occurring class at an educational institution. Public libraries do not meet the definition of a nonprofit educational institution in the context of having a systematic course of instruction having an instructor and students. If your library does sponsor regular classes in which videos are to be used, however, such use may possibly be covered.(17 USCS 110)

There are several methods of acquiring permission for public performances:

  • Buy videos with performance rights already attached. PBS, Films for the Humanities and Sciences, Annenberg CPB, Library Video Company, and many other video publishers sell videos with performance rights already attached.
  • Acquire temporary performance rights from the Motion Picture Licensing Corporation. These are called umbrella licenses, and are used for showing videos already owned.The cost of these licenses is based on the population of the area served by the public library, factored in with the size of the auditorium where the the video will be displayed. Covers mostly Hollywood-type entertainment. Phone 800-462-8855, or 310-822-8855.
  • Rent a film or video from Swank Motion Pictures, Inc. These all have performance rights attached. Again, covers mostly Hollywood-type entertainment. Phone 800-876-5577.
  • Rent an educational film or video from the University of California Extension, Center for Media and Independent Learning. Phone 510-642-0460.
  • Rent an educational video from the University of Washington Media Center. Phone 206-543-9909.

Yes. In-home viewing by the student, alone or with a small group, is permitted.

It could be argued that viewing a videotape in the public library would not be permitted because more than one person would be watching it, making it a public performance. Small groups are usually ok, but this is a controversial area of the law. Consult legal counsel, and have a copyright policy approved by them.

Viewing by a small class group in an academic library would generally be allowed under the classroom exemption.(17 USCS Sec. 107 and Sec. 110).

In-classroom performance of a copyrighted video is permissible under the following conditions summarized from Section 110:

  1. The performance is by instructors (including guest lecturers) or by pupils.
  2. The class is part of the regular curriculum.
  3. The performance is in connection with face-to-face teaching activities.
  4. The entire audience is involved in the teaching activity.
  5. The entire audience is in the same room or same general area.
  6. The teaching activities are conducted by a non-profit educational institution.
  7. The performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop.
  8. The video is lawfully made; the person responsible had no reason to believe that the video was unlawfully made.

Yes, as long as the auditorium is actually used as a classroom for systematic instructional activities.

Generally, yes. If the students will be in a small viewing room which is not used as a classroom, the performance may be permissible if only members of the class are present and the performance is not open to the general public. If the library contains regularly-scheduled classrooms, the face-to-face teaching exception applies. This does not have to be the room where the class usually meets. (17 USCS Sec. 110)

Yes, provided that the performance is "in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction." However, if the copy of the video was unlawfully made (or the responsible party had reason to know it was unlawfully made), then the showing would be an infringement.[17 USC 110(1)]

No. The group does not consist of class members enrolled in a non-profit institution, nor is it engaged in formal instructional activities of such an institution. The group must ask for the permission of the copyright owner in order to view the tape.

Unless the otherwise provided for in a license or purchase agreement, this is an infringement. Some companies have a pricing structure which allows a library to pay a higher price to purchase a video with the right to produce a specific number of duplicate copies.

If the library has been unable after a reasonable effort to secure an unused replacement at a reasonable cost, 17 USC Sec. 108(c) allows duplication of the tape for replacement purposes.

Copying to change format (called format-rescue conversion) from an obsolete format (such as Beta) to a modern one is an infringement unless an unused copy in the modern format is unavailable. A format is considered to be obsolete if the machine necessary to show it is no longer manufactured or available in the commercial marketplace. Be aware that this is a controversial area of the law. (17 USCS 108 (c) and (i)). Consult legal counsel, and have a copyright policy approved by them in place.

Since PAL is a modern format that is currently used outside the United States, it would be an infringement for a library to convert a PAL tape to NTSC VHS. Instead, a multi-standard VCR may be used to convert the signal so that it may be shown on an American (NTSC) TV monitor. These multi-standard VCRs are commonly available (although expensive) and most will show both PAL and SECAM videotapes. The Panasonic AG-W1 is an example of these players/converters.

In general, the librarian's duty in this situation is merely to state that the video is subject to the copyright laws. However, although there is no clear duty to refuse to lend, there is a point after which a library's continued lending with actual knowledge of infringement could possibly result in liability for contributory infringement.

Off-Air Recording

The law which permits libraries to circulate materials is 17 USC §109, sometimes referred to as the Doctrine of First Sale. However, libraries' first sale rights apply only to copies which are legally made.

The Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes stipulate that all copies of off-air broadcasts, which rely on fair use, should be erased or destroyed after forty-five days. Though not legally binding, the guidelines suggest that this practice, at a minimum, should constitute fair use.

Yes, all copies of the off-air recording must include the copyright notice on the broadcast program as recorded.

It probably depends on how you want to edit the recording and for what purpose. If the goal is to use a portion of the recording in a transformative way—perhaps to create a parody or to make a commentary on the original—it may very well constitute a fair use. On the other hand, simple alterations, such as editing out a particular scene, or overdubbing/erasing the soundtrack to remove offensive content, are almost certainly be illegal.

The Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes state that off-air recordings "need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations." This suggests that editing off-air broadcast recordings should, at a minimum, be done with caution.

A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.

Fair use applies to all works, including audio and audiovisual works. Except where digital encryption and other protections are involved, the fair use statute makes no distinction as to how the recordings were obtained.

A set of guidelines for off-air recording of broadcast programming for educational purposes was developed by a Negotiating Committee appointed in March 1979 by Congressman Robert Kastenmeier, chairman of the House Subcommittee on Courts, Civil Liberties, and Administration of Justice. The committee included individuals from educational organizations, copyright proprietors, and creative guilds and unions.

Through consensus, the Committee developed a set of guidelines regarding fair use as it relates to recording, retaining, and using broadcast television programs for educational purposes. These guidelines refer to formal classroom use as well as use for home instruction. The committee intended for these guidelines to provide standards for both owners and users of copyrighted television programs.

It is important to note, however, that though these guidelines were agreed upon by the parties present, they are not legally binding. As with all guidelines, they should be taken into consideration, but not taken as settled law.

The guidelines were published by the U.S. Copyright Office as part of their Circular 21, which can be found here:
(Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes)

Since PBS programs are not "works of the United States Government" under 17 U.S.C. §105, the rules governing PBS' copyrights are no different than with other producers of television content. However, you can always contact your PBS station to inquire about uses which may not fall under fair use.

Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days -- not counting weekends, holidays, vacations, examination periods, and other scheduled interruptions -- within the forty-five (45) calendar day retention period.

After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes (i.e., to determine whether or not to include the broadcast program in the teaching curriculum) and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.

A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.

Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.

Programs may not be recorded from a television satellite unless the programs are authorized for free reception or the institution obtains a license to copy the programs.

Computer Software

17 USC §117(a)(2) states that archival copies of computer software may be made provided that "such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful." Some courts have interpreted this clause to mean that archival copies may be made to guard against loss or damage to the original copy of the program. Nimmer, 8.08[C], 8-131

17 USC §109(b)(2)(A) allows non-profit libraries to lend computer software for non-profit purposes, provided that a warning of the copyright restrictions be affixed to the packaging, in accordance with 37 CFR 201.24.

Following is the text of the prescribed warning:

Notice: Warning of Copyright Restrictions

The copyright law of the United States (title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material.

Under certain conditions specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program, except as permitted by title 17 of the United States Code, may be liable for copyright infringement.

This institution reserves the right to refuse to fulfill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law.

17 USC §1201 (a)(1)(A) states that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title." That is, a user of a body of information presented electronically (such as an Internet site) may not try to bypass the control system which allows access to that work.

17 USC §1201 (d) states that non-profit libraries may be exempt from being subject to a circumvention system and gain access to the work in order to make a "good faith determination" to decide whether to acquire it, provided that access to the work is for no other purpose than to make the decision in a reasonable amount of time.

17 USC §1201 (h) states that federal court may "consider the necessity" of protection systems whose "sole purpose [is] to prevent the access of minors of material on the Internet." 17 USC Section 1201 (i), however, allows for circumvention if a system attempts to collect personal information.

The Librarian of Congress, under 17 USC §1201 (a)(1)(D), has been charged with publishing a list of copyrighted works which may be "adversely affected" by the circumvention provision. His report, with commentary, can be found at http://www.loc.gov/copyright/1201/anticirc.html.

Libraries have contended that these "technological measures" that control access to work inhibit fair use. For the current thought, as expressed by the American Library Association, concerning this subject, see http://www.ala.org/washoff.

Whether a software program can be loaded onto more than one computer terminal for simultaneous use, or can be loaded onto a network for use by several users, is normally subject to the terms and conditions of the license agreement for that program. To make copies for multiple users against the terms of the license would constitute an infringement.

See Software Licenses.

17 USC §117 gives guidelines for the owner of a copy of a computer program. There has been much debate over who is considered to be an owner. 17 USC §202 states that there is a distinction between ownership of a copyrighted object and ownership of the "material object in which the work in embodied." For example, ownership of a compact disc does not include ownership of the recording contained in the compact disc, which is itself distinct from the musical work which is recorded.

License agreements generally override any statutory language, including the first sale and fair use doctrines.

Further, as Nimmer on Copyright [8.08[B][1], 8-126] states, "Copyright ownership is governed by federal law, whereas tangible ownership arises presumably under state law." The subject of "tangible," or material ownership, falls under guidelines outlined under the Uniform Commercial Code, and is also addressed by the proposed UCITA.

Performance Rights

The owner of the copyright has the right to grant permission for any public performances (including broadcasts) which do not qualify for any exemption as defined in Section 110. Ownership of the copyright begins with the composer, but the composer may have transferred ownership or contracted certain licensing rights to a publisher. Given the myriad ways in which a composition can be performed in venues worldwide, various conventions -- and corresponding collection agencies -- have been established to assist in the administration of these rights. The conventions for licensing performances of music depend on whether the composition is non-dramatic or dramatic.

Dramatic works.''' Operas, ballets, and musical theater works are dramatic works; in music business jargon the right to perform them is referred to as a "grand" right. Permission to perform any dramatic work must be obtained directly from the copyright owner or its licensee, which is often the publisher that sells or rents the performance materials. [Footnote: American musical theater works are, in most cases, handled differently. The publishers who print the music (individual songs, selections, or piano-vocal scores) usually do not have the right to license performances. The right to license amateur, professional, and LORT (League of Resident Theatres) productions is usually assigned by the authors to an agency such as the Rodgers and Hammerstein Theater Library, Music Theater International, Tams-Whitmark, Samual French, etc. Most authors reserve the right to license "first-class" productions (Broadway, national tours, and similar venues) as well as the use of a dramatic property in television, films, and other audiovisual media.]
Non-dramatic works. Because it is impossible for any composer and/or publisher to monitor all performances of their compositions in all media (in concert halls, clubs, on radio, television, in movies, elevators, jukeboxes, etc. -- anywhere that music is consumed in public), performing rights societies have been formed to license performances of copyright-protected music. The performing rights societies in the United States are ASCAP, BMI, and SESAC. When a composer or publisher becomes a member of a performing rights organization, the organization is granted the non-exclusive right to license non-dramatic performances on behalf of the copyright owner. This is also called a "small" right. A request for permission to perform a non-dramatic work should be made to the applicable performing rights society. The repertory controlled by ASCAP & BMI can be searched on their respective web sites.

The right to record non-dramatic works is governed by a compulsory license outlined in 17 U.S.C. 115. These licenses are available at a statutory rate, and include the right both to record the work and to arrange the work "to the extent necessary to conform it to the style or manner of interpretation of the performance involved," so long as the fundamental character of the work is not altered. However, the arrangers in such cases cannot claim copyright for a derivative work. Because of the formalities involved, it is often easiest to request a license through a mechanical license clearinghouse such as the Harry Fox Agency.

USC 17 Sect. 114(a) specifically denies the copyright owner of a recording (i.e. the owner of the (p)) a performance right in audio recordings. However, the copyright owner of the underlying musical composition owns a performance right in the composition, and therefore, in recordings of the composition. For example, a radio station broadcasts a Nonesuch recording of the Kronos Quartet performing Different Trains by Steve Reich. Reich and his publisher are eligible to receive payment from the radio station for a performance of the musical composition; this fee is usually collected by the composer's and publisher's performing rights society. Nonesuch and the Kronos Quartet are not entitled to payment, even though they may own the rights in the performance and the copyright in the recording.

By contrast, the Berne convention (see International Protection) does recognize a performance right in sound recordings, as do most European copyright laws. In 1978 the Register of Copyrights recommended an amendment of the statute in order to provide such a right, and the recommendation elicited hot debate in the music industry. The various business interests reached consensus in a new digital performance right in sound recordings that became effective on 1 February 1996.

Section 106(4) grants the copyright owner the exclusive right to perform "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works" in public. Mere ownership of a printed score or a sound recording does not convey the right to perform that work in public.

However, some exceptions to Section 106(4) do exist. In order to accommodate educational and other non-profit uses of music, Section 110 includes ten lengthy limitations to the performing right as defined in Section 106(4). The exemptions most relevant to music libraries and their patrons are:

  • Instructional performances. Section 110(1) provides an exemption to use any work in face-to-face instruction in "a classroom or similar place devoted to instruction." The performance must be by "instructors or pupils" in a nonprofit educational institution. Guest lecturers qualify, but outside performers do not.
  • Instructional broadcasts. Section 110(2) provides an exemption for instructional broadcasting of non-dramatic works only. The performance must be "a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution" and it must be "directly related and of material assistance to the teaching content" of the program. Section 114(b) deals specifically with public broadcasting of sound recordings: "The exclusive rights of the owner of copyright in a sound recording under clauses (1), (2), and (3) or Section 106 do not apply to sound recordings included in educational television and radio programs (as defined in section 397 of title 47) distributed or transmitted by or through public broadcasting entities (as defined by Section 118(g)): Provided, that copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public."
  • Religious performances. Section 110(3) makes exempt "performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature . . . in the course of services at a place of worship or other religious assembly." This exemption does not include broadcasts.
  • Certain Other Nonprofit Performances. Section 110(4) exempts the performance of a nondramatic literary or musical work (excluding broadcasts) "without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers" if there is no direct or indirect admission charge, or if the proceeds after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance.

Not necessarily. Usually this responsibility falls to the producer of the public presentation. For instance, most universities, public auditoriums, radio stations, orchestras, etc., negotiate "blanket" licenses with the various performing rights agencies. These licenses cover all performances of copyright-protected works controlled by the particular agency. (Often producers will attempt to return this responsibility to the performers in the engagement contract.)

Copyright claims

Yes. 17 USC §106(2) grants the copyright owner the exclusive right "to prepare derivative works based upon the copyrighted work." A work consisting of editorial revision, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work." In order to claim an infringement, the owner of the original copyright must show that the derivative work incorporates a portion of the copyrighted work in some form and is substantially similar to the original. [Latman, p. 214]

Not usually, but copyright ownership of the commissioned work should be specifically reserved for the composer in the commissioning agreement. An excellent brochure, "Commissioning Music: A Basic Guide," is available from Meet the Composer, Inc., 2112 Broadway, Suite 505, New York, NY 10023.

No. For "nondramatic musical works," the composer's exclusive rights to reproduce and distribute recordings of an original work are subject to compulsory licensing. The composer controls these rights only the first time the work is recorded commercially. Thereafter, a recording company may obtain a compulsory license from the copyright owner to release protected compositions on sound recordings (see Section 115(a)(1)).

see also Mechanical and Synchronization Licenses

Although copyright initially vests in the creator of the original work, it may be transferred or licensed to another person or persons, such as a publisher, record company, commissioning agency, video company, or performing rights agency (see Section 201(d)). This transfer may be for the life of the copyright or for a more limited period of time. Copyright in a contribution to a periodical or other collective work is separate from copyright in the collective work as a whole and subsists initially with the author of the contribution.

Copyright law extends beyond specific regulations pertaining to the physical reproduction of protected works. Section 106 outlines a number of "exclusive" rights granted to the copyright holder. These rights govern the public display, public performance, sale or lease, transmission by digital means, reproduction in all forms of media, arrangement and parody, and derivative uses of copyrighted works. Copyright law also provides for exceptions to these rights, depending on the type of work and the uses made of that work by others.

Registration forms are available online as PDF files at the U.S. Copyright Office web site, by mail through the Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559, or by calling (202) 707-9100 (for TTY, (202) 707-6737). Use a PA ("performing art") form to register music and/or lyrics or an SR ("sound recording") form for the performance and production rights in an audio recording. The forms come with instructions. Send the completed forms to the Copyright Office with a $30 registration fee and two complete copies of a published work (one copy of an unpublished work or a work published outside the U.S.) (see Section 408 and Section 409). The Copyright Office requests that manuscripts of musical works be submitted as printed copies instead of on computer disks.

A collection of unpublished works can be registered as a group on one registration form (and for one $30 fee), provided that all works in the collection are by the same author, the collection bears a single title (i.e. "The collected songs of John Doe") and all of the necessary deposit copies are enclosed [Volunteer Lawyers for the Arts, p. 27].

Yes. The United States is a signatory to the Berne Convention, the Universal Copyright Convention, and the Buenos Aires Convention. These agreements extend copyright protection for U.S. copyrights in all countries that are party to the agreements. The U.S. Copyright Office Circular R38A [PDF file] lists all countries currently covered.

Copyright protection does not guarantee against infringements. Efforts to stop an infringement in a foreign territory usually must be undertaken with the assistance of foreign legal representation.

A mechanical license is the permission that a record company must acquire from a copyright owner to record a copyright-protected musical composition. For the first commercial recording of a composition, the record company must negotiate the terms under which the recording will be allowed directly with the copyright owner. Thereafter, Section 115 describes the procedure under which any record company can receive a compulsory license from the copyright owner to manufacture and distribute recordings according to a fee-per-copy that is established and reviewed periodically by the Copyright Royalty Tribunal.

A synchronization license is obtained from the copyright owner of a musical composition to "synchronize" a recording of the composition to film or videotape of visual images. This license can also contain terms for the right to display in public the film or video and/or a mechanical license for the right to manufacture and distribute copies of the film or video.

Even though copyright notices are not required for works published on or after March 1, 1989, they are recommended. The notice informs potential users that the work is protected, gives the identity of the copyright holder, and shows the year of first publication. If a work carries a proper copyright notice, the court in an infringement suit will not support a defendant's claim that he or she did not realize that the work was protected. Copyright notices also distinguish each author's contribution in a collective work.

A proper copyright notice includes:

  1. the ©, or copyright symbol;
  2. the year of first publication, or, in the case of an unpublished work, the year of creation;
  3. the name of the copyright owner.

The words "All rights reserved" should be added to the copyright notice if the owner wishes the work to be covered by the Buenos Aires Convention (for Central and South American countries). The notice should be placed in a prominent position on the publication.

The copyright in sound recording is a separate and distinct right from the copyright in the underlying musical composition. A recording does not represent a "copy" of the composition, so a copyright notice for the underlying musical composition is not required on recordings of that work. A recording may carry one or more phonogram copyright notices ((p), date, owner), which signify the copyright date for the recorded sound (see Section 402(b)). The © copyright notice that often appears on commercial recordings protects the liner notes, cover design, and any other printed material on the product.

No. The use of the copyright notice is optional for copies of works published on or after March 1, 1989.

See also Printed Notice Benefits

Even though copyright registration is no longer mandatory, there are incentives for doing so. For works of U.S. origin, registration of copyright with the U.S. Copyright Office is required before a copyright owner can initiate litigation for an infringement (see Section 411). A work which has been registered within three months of publication or prior to infringement is eligible for statutory damages and attorney's fees in a successful litigation case (see Section 412(2)). Registration also provides a way for potential users to easily identify the copyright owner. In addition, if a work is registered, anyone wishing to make and distribute recordings of that work (subsequent to the first commercial recording) must apply for a compulsory license (see Section 115(b)(1)), which generates income for the copyright holder.

Check the BMI and ASCAP lists for titles and authors. These will tell you who claims the rights, if any.

If the lyrics are protected, you must get permission to use them in their entirety. However, the guidelines for using only a part of a lyric cannot be easily codified. "The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission." (Copyright Office. Fair Use, 2003)

The Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals provides guidance regarding the amount of a poem that may be photocopied.

"(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words" (See Agreement for entire text)

To project this agreement document as guidance to the use of protected lyrics in a newly created work, is questionable. It seems that permission should be sought for any substantial use of protected lyrics, whether "traditional" or not.

The answer to this question depends on what copyright statute was in force at the time the work was created. For works created before January 1, 1978, the answer is no (see Section 408(a)). Original works created on or after January 1, 1978 by a composer (or a performer, in the case of recordings) are protected by copyright from the moment they are fixed in a tangible form, e.g., when the pencil lifts from the paper or the sound is captured on a recording device (see Section 302(a)).

See also Registration Benefits

The answer to both of these questions lies in application of Section 107, Fair Use, which was designed to provide only general guidance to the courts [Latman, p. 240]. The Volunteer Lawyers for the Arts Guide to Copyright for Musicians and Composers proposes that "fair use might allow a television station to broadcast a tape of a short portion of a concert during a review of that concert, or a documentary film about the Beatles to use short excerpts from some of their songs." But the handbook also cautions, "In general, however, the fair use limitation allows only limited use of copyrighted material without permission, and it should be assumed that permission must be obtained for the use of any musical material unless a qualified attorney advises otherwise."

"Works for hire" can be created two ways: 1) when an employee undertakes the creation of an original work as a condition of his or her employment, or 2) when the work is specially ordered or commissioned as a work for hire. In a work-for-hire arrangement, the employer (or the person/group that paid for the work) owns the copyright. If an employer-employee relationship exists, no written work-for-hire agreement is necessary for the employer to claim copyright. For instance, composers on contract to a film or video company and studio musicians usually function in a work-for-hire situation (see Section 201(b)).

Any work created outside of an employer-employee relationship must satisfy three requirements:

  1. The work must be specially commissioned or ordered; it must be created in response to a request rather than merely to interest a buying party after its creation.
  2. The "work-for-hire" status must be specifically confirmed in a written agreement signed by both parties. Such agreements may be of questionable validity if signed after, rather than before, creation of the work, but it should be assumed that any written agreement of this sort is potentially enforceable.
  3. Only certain types of works, specified in Section 101, can be considered specially commissioned works for hire: For example, musical arrangements of existing compositions, the soundtrack for a motion picture or other audiovisual work, other musical contributions to collective works, such as record albums or songbooks, a translation, an instructional text, a test, a supplementary work, etc. [VLA, p. 15-16]

See also Commissions and Copyright

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