Copyright for Faculty and Staff

Copyright is the doctrine of federal law that gives an “author” of a work exclusive rights to use that work for a limited period of time.

Copyright gives the copyright holder the exclusive right to reproduce, publish, distribute, adapt, perform, or display a work for a certain period after its creation. Non-copyright holders cannot use a copyrighted work without first obtaining permission from the copyright holder.

A derivative work is a work that is derived from, or based on, another work. The creation of derivative works is protected by copyright. A common example of a derivative work is a translation.

Copyright exists automatically from the time a work is “fixed in a tangible medium.”

For works made after 1978, registration is not necessary for copyright creation. It does confer some benefits, but its value varies on a case to case basis.

• Literary works
• Musical works
• Dramatic works
• Scientific works
• Software
• Choreography
• Pictorial, graphic and sculptural works
• Motion pictures
• Sound recordings
• Architectural works
• Compilations and databases of any of the above categories, to the extent they reflect original thought in the selection or arrangement of the elements

• Facts
• Ideas
• Processes or procedures
• Concepts
• Principles
• Systems or methods of operation
• Discoveries
• Works created by an officer or employee of the United States Government, acting within the scope of his or her official duties

In most cases, copyright belongs to the author who created the work. This ownership can be sold or given to another person or entity, or the owner can license the use of a copyrighted work to another person or entity while retaining copyright ownership. 

The two most common cases when a copyright doesn’t belong to an author is a work made for hire, or when a work is produced by a federal employee in the course of their work.

A work that is republished or updated should include a copyright date that starts with the earliest publication date. For example, if a creative work was first published in 2018 and has been annually updated then a copyright notice could read “© 2018-2021 [Copyright Holder].”

In the United States, all works published before 1923 are in the public domain and most works published after 1977 are protected for the life of the author plus 70 years.  Works created and/or published between 1923-1977 are subject to a potentially shorter copyright.

¹ Term of joint works is measured by life of the longest-lived author.
² Works for hire, anonymous and pseudonymous works also have this term.
³ Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies.

Chart courtesy of Lolly Gasaway, University of North Carolina.

For a more detailed explanation of when a copyright on a particular type of work expires, including some nuances of the effect of publication outside the United States, please see Peter B. Hirtle’s Copyright Term and the Public Domain in the United States.

The potential penalties for infringement (i.e. using a copyrighted work without the owner’s permission) can be very harsh and levied against either individuals or institutions. A court can award up to $150,000 for each separate act of “willful infringement,” which means that the user knew they were infringing and did it anyway. Ignorance of the law is not an excuse for copyright infringement. If an individual does not know that they are infringing, the individual still will be liable for damages - only the amount of the award may be reduced from ignorance. In addition, an award of damages can include attorneys’ fees.

Individuals should be very careful when using any copyrightable material that they do not own. To avoid copyright infringement claims, individuals should confirm that the copyrightable material they want to use is:

• Confirmed in a written license from the copyright owner
• Free for use in the public domain
• Free for use under a Creative Commons license, or
• Subject to fair use or the face-to-face exception

View our permission pages for more information on getting permission.

Fair use is a doctrine in copyright law designed to enable easier use of third party material for some limited preferred purposes. Four factors should be considered when evaluating fair use.

The statute lists the following uses: criticism, comment, news reporting, teaching, scholarship, and research. Courts have also found parody to be heavily favored.

1. The purpose and character of the use. Factor 1 examines the manner in which the material is being used. First, does it fall into one of the statutory categories? Is the use for educational, non-profit use? (favored), or is it for a commercial purpose? (disfavored).Courts have also focused on the “transformative” nature of the use, which examines if the use has placed the work in a new light, or for a different purpose. Parody is considered highly transformative.
2. The nature of the copyrighted work. Factor 2 examines the nature of the work being used. Creative works are more protected, while factual ones are less so. You should also consider whether the work is published or unpublished. Unpublished works have more protection.
3. The amount and substantiality of the portion used. Factor 3 examines how much of a work has been used and how important the used portion is. Small, insubstantial portions of a work are generally more likely to be found as fair use, while large sweeping portions of a work are less likely to be found as fair use. Courts have also found that you must consider whether the portion used is the “heart of the work”. Even if the portion borrowed is small, if it represents the “heart of the work”, or the portion that gives it value, it is unlikely to be considered fair use.
4. The effect of the use on the potential market. Factor 4 examines how the use may affect the potential market of the copyrighted material being used. If use is likely to have a big impact on the market, fair use is unlikely to be found. Consider whether or not the purpose of the use overlaps with the intended market, or diverges. A good question to ask is whether or not your copying would substitute for buying the original work. This factor is generally the most important factor.

No. Federal courts have opined that the most important factor to consider in making a fair use assessment is Factor 4 (approximate weight 40%), followed by Factors 3 and 1 (approximate weight 30% and 25%, respectively), while Factor 2 carries the least weight (approximately 5%).

Yes. Several commentators in the 1970s developed a set of “safe harbor guidelines” for teachers in nonprofit educational institutions to reproduce copyrighted works under fair use. These “guidelines” were subsequently endorsed by the American Council on Education and cited in many court decisions.

Faculty do not violate copyright laws when, for scholarly or research purposes, they make a single copy of:

• A book chapter
• A newspaper or periodical article
• A short story, short essay, or short poem
• A chart, graph, diagram, drawing, cartoon, or picture

Faculty do not violate copyright laws when, for classroom instruction, they make multiple copies of a copyrightable work that they could otherwise make a single copy if the following restrictions are satisfied

• Brevity: Faculty satisfy the brevity restriction based upon the copyrightable work used.
  • Poems: A complete poem can be used if it is less than 250 words and printed on not more than two pages. A poem excerpt can be used from a longer poem if it is not more than 250 words. The poem limitations can be expanded to permit the completion of an unfinished line.
  • Articles/Stories/Essays/Chapters: A complete article, story, essay, or chapter can be used if it contains less than 2,500 words. An article, story, essay, or chapter excerpt can be used from a longer work if it is no more than 1,000 words or 10% of the entire work, whichever is less, but at least 500 words. The article, story, essay, or chapter limitations can be expanded to permit the completion of an unfinished paragraph.
  • Chart/Graph/Diagram/Drawing/Cartoon/Picture: One chart, graph, diagram, drawing, cartoon, or picture can be used per book or per periodical issue.
• Spontaneity: Faculty satisfy the spontaneity restriction by selecting copyrightable material so close to the course start date that seeking permission from a copyright owner was impractical. Faculty cannot, however, reuse the same excerpted material in subsequent courses or terms without seeking permission.
• Cumulative effect: Faculty satisfy the cumulative effect restriction by limiting multiple copies to one article or two excerpts per author, and three excerpts per periodical volume (other than current news periodicals) or other collective work, in a single course offering.
• Notice/No profit: Faculty satisfy the notice/no profit restriction if for the copyrightable work (i) a copyright notice is included on all copies distributed to students; (ii) no more than one copy is made to each student enrolled in the class; and (iii) students are not charged any fee for the copy beyond the cost to make the copy itself.

The Guidelines ultimately define uses that are always safe; they do not purport to define the outside limits for fair use. Faculty who copy materials beyond the guideline limits may still be within the fair use exception, but it is not definite.

Yes. Faculty may utilize the special fair use considerations for educational institutions in the physical classroom or online, subject to the same limitations described above. In an online environment, faculty must be mindful that posting online does not eliminate the need to get permission per the spontaneity requirement.

Yes. Faculty may utilize the special fair use considerations for educational institutions in e-reserves to permit students to use or download electronically stored material, subject to the same limitations described above. Faculty must verify with the library whether there are any restrictions from a licensor before allowing students to copy electronic materials in e-reserves. In addition, faculty must verify that any electronic materials placed in e-reserves are password-protected and available only to students enrolled in their course.

Images and pictures are a particularly tricky area for fair use. Generally, using an image requires the use of the entire work, which heavily disfavors fair use. You cannot assume that because an image is on Google, that it’s free to use. Many images on the internet are copyrighted. You should always do your due diligence in looking for the copyright holder and seeking permission. You should never use photographs from a commercial entity such as Getty or the Associated Press without obtaining permission.

Faculty can seek permission by directly contacting the copyright holder; the copyright holder is normally either the person that created the copyrightable work or a publisher that holds the rights to the copyrightable work. The library can assist faculty to identify the correct copyright holder. A copyright holder may grant permission to use a copyrightable work with a license that is either free or in exchange for a reasonable fee. If faculty find that a license is cost-prohibitive, faculty must otherwise use the copyrightable work subject to fair use restrictions.

• What is the “face-to-face” exception and how is it different from “fair use”?
  • The face-to-face exception permits faculty to utilize copyrightable works in the physical classroom without the copyright owner’s permission. The face-to-face exception is distinguished from fair use in that the face-to-face exception is an exclusion from, while fair use is only a limitation on, a copyright owner’s protections. Notably, the face-to-face exception only applies to face-to-face instruction in the physical classroom; it does not apply to the virtual classroom.
• Do faculty need to obtain a license to utilize copyrightable works, including films and audio recordings, in their lectures before a live and physical class?
  • No. Faculty and students can perform or display a legally obtained copyrightable work during face-to-face instruction without a license. A copyrightable work is “legally obtained” if it is not a pirated copy.
• Is the “classroom” limited to the space that faculty are assigned to teach a course?
  • No. A classroom is anywhere that faculty and students meet face-to-face. The audience that views the copyrightable work, however, must be limited to the students enrolled in the course and cannot be open to the public.
• Can faculty upload an entire film on an online platform for students to watch at their convenience?
  • No. The face-to-face exception requires that faculty and students are in the same room while the film is viewed. There are some face-to-face exceptions that are now included in a virtual classroom; however, entire films are not included even in a password-protected environment.

Yes, but with additional significant restrictions. In the early 2000s, the face-to-face exception was expanded to cover distance education transmissions which must be:

• In “limited portions,” other than non-dramatic literary or musical works
• No longer than what can be viewed within normal classroom time
• Accessible solely to students officially enrolled in the course, and
• Made available consistent with university copyright policies that are communicated to community members, including an express communication to students that transmitted materials may be subject to copyright protection

“Dramatic” means works that include performed actions. The prohibition on showing an entire work through distance education transmissions is limited to dramatizations with dialogue. For example, movies, plays, and operas cannot be transmitted in their entirety. A reading or symphony can be transmitted in its entirety; however, if it is an “integral part” of the course. An “integral part” refers to material that is directly related and material to the teaching course content.

In short, the face-to-face exception applies only to distance education materials faculty would utilize in a face-to-face lecture, not to copyrightable works that faculty expect students to review on their own time.

Yes. The guidelines are available on our Copyright and Blackboard page.

No. Copyrightable works, except non-dramatic literary and musical works, can only be transmitted in limited portions even if a work is made available for a limited period or is password-protected. 

Yes, although faculty should be mindful whether the third party has permission to transmit the materials. A link to a third party website does not create legal liability so long as the link is just to the content and the link is not embedded in anything distributed. Faculty should also be mindful that a third party website link can be broken at any time.

No, at least not without risk. Faculty protections for online courses presume a lecture element.

Yes, although the law is unsettled. As a general rule, faculty should avoid posting multiple copyrightable work copies online from semester-to-semester to satisfy the guidelines’ spontaneity requirement.

A publication occurs whenever faculty post copyrightable works online. Faculty can publish their own entirely original copyrightable works without permission; if other persons helped to author the copyrightable work, then faculty must obtain permission from the other authors before publication, ideally in writing. If a new copyrightable work contains previously-published third party materials, then faculty must either follow fair use guidelines or obtain a license from the copyright owner prior to publication and even if the use is not-for-profit.

Yes. GW possesses music licenses with several entities including the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), SESAC, Inc. (SESAC), Global Music Rights (GMR), and SoundExchange (collectively, “Music Licensors”). The Music Licensors grant permission for GW to play music licensed by the Music Licensors without additional permissions (i) at live, university-sponsored events, (ii) through the university’s radio station, (iii) through the university’s cable television system, and (iv) on the university’s website.

Community members can either confirm coverage through the Music Licensors’ websites or with GW’s Licensing and Trademarks Program (LTP). Generally, a composition or song has been released commercially is likely covered by the Music Licensor’s licenses; if a composition or song has not been released commercially then it should be affirmatively checked before it is performed.

Yes. GW can make and retain one archival copy for student performances that include copyrighted music. The university’s ability to record student performances exists even though the standard Music Licensor licenses pertain only to live and previously recorded performances and not new performances.

Yes. Student groups can obtain a copy of their own performances. In addition, university community members can listen to archived student group performances under the same “fair use” guidelines that would apply to a commercially available music recording.

A nominal fee can be assessed to cover costs to make and distribute a student performance copy. A fee cannot be assessed, however, to offset music production costs as this requires a special permission not covered by the Music Licensors’ licenses.

A digital version of an analog work is considered a derivative work, and the copyright owner holds the exclusive right to create a digital version of her work. If a digital version already exists, you are expected to buy it rather than digitize an analog version for online use. If a digital version does not exist, or if the excerpt you are using is small enough to qualify as fair use, you may digitize your own copy for use in Blackboard pursuant to the TEACH Act.

Usually, not without permission.  As discussed above, the copyright owner holds the exclusive right to create a derivative digital version of his work. As anyone who spent a lot of money replacing all her vinyl records with CDs knows, there is often a lucrative market for digital versions of works that have already saturated the market in analog form.

If you want a digital version of your VHS film, the simplest lawful way to obtain one is to buy the DVD version.

Libraries have certain archival rights, preserved in Section 108 of the Copyright Act, to make copies of copyrighted works in formats that promote preservation. There is not yet complete agreement on whether the library can use the “preservation” copy for circulation in a different format without violating copyright, though many libraries view this as an accepted practice. If you are working with media owned by the GW Libraries, the GW libraries should take the lead in preserving the original work. Media that have been digitized for preservation by the GW Libraries cannot be circulated in the digitized format without permission from the copyright holder.

As an individual, the preservation clause in the copyright statute is not available to you. If the work is not available on DVD and you need a copy you can rely on, you have two options to avoid risking breach of copyright: you can seek permission from the copyright owner to digitize the analog copy you have, or you can purchase a new VHS copy.

Someday, probably soon, VHS technology will be deemed obsolete enough to support digitization without permission, but for now it is still a copyright violation in most circumstances to digitize an entire film or recording without permission.

Digitization of a small percentage of an analog work for classroom use would probably fall within the realm of fair use. As a general rule, 10% or less of a work is considered acceptable, so ten minutes of a typical 90-minute film is low-risk.

As of the 2010 exceptions to the Digital Millennium Copyright Act (“DMCA”) all faculty and film/media studies students have the right to break copyright encryption to extract fair-use-length clips for educational uses.

Yes, because to meet the DMCA exclusion described above, your clips will also meet the standard of fair use.

Yes, you can. The “right of first sale” doctrine, first set out by the Supreme Court in 1908, provides that once you purchase a copy of a copyrighted work, you have the right to resell it.

That is where things start to get interesting. You can sell the exact copy that you bought and own – but you cannot make a copy to sell to someone else, even if you destroy your copy in the bargain. When you upload or send someone else a file, you are making a copy – and that isn’t covered by the first sale doctrine. So, unless you can find a way to sell your MP3s without copying them (for example, by selling the hard drive on which they reside) you cannot sell or even distribute them for free without violating copyright.

No. University and other education-related or non-profit websites and social media accounts are no different from personal or commercial sites in this context. If they are public-facing and accessible to anyone, posting a copyrighted work on such an account constitutes a publication or distribution under the copyright laws. 

No, but you have to follow copyright rules when you do so. You have three choices when posting work created by other people on social media:

• Use public domain material or material that has been made available for free use under a Creative Commons license
• Limit your uses to fair use limits
• Obtain permission or a license from the copyright holder

No. The internet is like a public library. You can look at the books as much as you want, and you can copy a few pages from a book without violating the author’s copyrights, but if you want to give the entire book to someone else, you have to buy a copy. Most materials on public websites are under copyright and have been published by the copyright owner or under a license.

If the copyright owner discovers that you used his or her work without permission, the owner can sue you for copyright infringement, even if you made an honest mistake. Often, copyright holders will send a letter demanding that the infringing use be stopped (a takedown notice) and offering to settle the copyright infringement claim out of court for a retroactive license fee that may include a fine. If you fail to take down the infringing use or ignore the demand for money, you can be sued for damages that begin at $30,000 per infringing use plus attorney’s fees.

No. The institutional licenses only cover live performances on campus. In order to publish or distribute a recording of the performance – even for free – the performers need to obtain a type of copyright license known as a mechanical license from the copyright holder.

Whether or not that constitutes a fair use may depend on the length of the entire work, but 30 seconds of a 3-minute song is probably safe.

No. The purchase of the recording does not include the right to “distribute” the recording through social media.

You automatically own the copyright in your own work, but if you want to protect it, you should probably register your copyright with the U.S. Copyright Office. Although you can register at any time, “timely registration” within three months of publication will make it much easier to prove an infringement case, should you later have to bring one. Registration is relatively inexpensive (as of 2007, it cost $45 per work) and simple. Forms can be found here.

Many journals do require that authors sign over some or all of their copyright rights as consideration for the acceptance of the work for publication. As a practical matter you may not be giving up anything of monetary value, if the work is not valuable until a peer-reviewed journal publishes it and/or there is a limited market for selling it. Nevertheless, you should read the terms of any copyright transfer very carefully and be sure you know what you are agreeing to give up. If you have questions about the agreement terms, contact the GW Libraries.

The authors of a joint work are co-owners of the copyright. A “joint work” is defined as an original work prepared by two or more creators with the intent that their respective contributions be merged into an inseparable or interdependent whole work. Each contributor’s contribution must be an original product that could be copyrightable standing alone. Nevertheless, just making a substantial or valuable contribution to a work is not enough to create co-ownership in the resulting copyright. If there is a dispute, a court will look at whether purported co-creators exercised creative control over the work; whether the co-creators expressed an intent to create a joint work; and at the audience appeal of each co-creator’s contribution.

Once your lecture is recorded, it is “fixed in a tangible medium” and becomes a copyrighted work (which it would not have been if you were delivering it orally without recording, although your lecture notes are a copyrighted work).

Absent a separate agreement, a lecture is a “traditional scholarly work” within the meaning of most university IP policies. The George Washington University IP policy grants you the copyrights to the traditional scholarly work you produce. If you develop the online course pursuant to an a separate agreement that pays you additional compensation to create a work for hire, it will belong to GW.

Before transmitting your lecture online, your institution needs to obtain a release from you giving permission for the use of your voice and image. You can set limits on the permission you grant.

Copyrightable works developed in the course of completing one’s university duties are assigned according to the George Washington University Copyright Policy and the Patents and Scholarly Work Policy.

Generally speaking, copyrightable material belongs to individual faculty and staff if it was developed in the course of a university-assigned duties, unless it was developed using university resources, or developed in the course of a sponsored research or other binding agreement which dictates the ownership of any resulting intellectual property. As noted above, some online courses have been created pursuant to work for hire agreements that cover those specific courses.

Yes. Students automatically own the copyright in their own work, even though it was written in response to an assignment from you, unless it was created under certain exceptions set out in the George Washington University Patents and Scholarly Work Policy. This means both that you cannot appropriate their work without permission (by publishing a compilation of your students’ work on a particular subject, for example) and that you cannot exceed “fair use” of the material without obtaining the student’s permission. Note, however, that the copyright does not extend to the facts or ideas expressed in the students’ work, since those cannot be copyrighted.

If you have any expectation of using a student’s work beyond the class for which it was created, it is a good idea to get a release from all the students for the uses you wish make of it. This would include, for example, the possibility that you will use a student’s work, even anonymously, as an exemplar (good or bad) for future classes.

The fair use doctrine applies to students as well as to you, and they may use copyrighted material in order to comment on it under the same terms that you can.

Technically, this sort of “fan fiction” is a derivative work controlled by copyright, but as long as the students only “publish” it by turning it in to you or reading it aloud in class, the activity is covered by the face to face exception from copyrights. Therefore, it is fine to do this as an assignment. Just make sure the students know they might be courting trouble if they later distribute their work outside the classroom.

Yes. Individuals own the rights to their own images. It is unlikely that an interview subject who agreed to answer questions will object to being included in the class project, but you (and your students) should always get a release in any context outside a clearly newsworthy event. There is a First Amendment exception for news events.

To qualify as “news use” of an image, the use has to be immediate and short-term and published in a news venue, and the image must have been taken in a public place in which a reasonable person would not expect his or her actions to be private. Most classroom assignments won’t meet the first prong of that test.

Students also control the rights to their own voices and images, and if they might be heard or seen in your online lecture, it is advisable to obtain releases from them granting permission to record them. If a student declines to give permission, you can work with your IT staff member to ensure that the student’s voice or image are not captured or recognizable in the final product.

No. If a student or participant in any activity requiring a waiver or release is a minor, you must have a parent or legal guardian’s permission. Sometimes it will be easier to simply not use that student’s work or image. CAVEAT: Please be careful to ensure that in doing so, you are not discriminating against the student or limiting his/her participation in your course in any way not pertinent to institutional policies concerning minors on campus.