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Last Updated: Sep 12, 2016 URL: Print Guide RSS Updates

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Rights of Copyright Holders

Section 106 of the current U.S. Copyright Act grants six exclusive rights to copyright holders. These rights are:

1.      To make copies or recordings

2.      To create derivative works

3.      To distribute copies

4.      To perform a work publicly

5.      To display a work publicly

6.      To perform sound recordings by digital transmission.[1]

These six exclusive rights represent the entirety of the rights of copyright owners and exist only for a limited time. During the time that a work is under copyright, nobody except the copyright owner has the right to do any of the things stated in Section 106 without the permission of the copyright owner (unless the use is considered “fair use,” which will be discussed shortly).

[1] U.S. Copyright Act, 17 U.S.C. §106.


What Can Be Copyrighted?

According to Section 102 of the Copyright Act, in order for a work to be eligible to be protected by copyright law in the U.S., it must be an original work of authorship “fixed to a tangible medium of expression.” This statement contains three distinct criteria:

1.      It must be an “original” work of authorship, meaning that the author made some kind of substantial creative contribution

2.      It must be “fixed,” that is made sufficiently permanent or stable

3.      In “any tangible medium of expression,” which means it must reside somewhere that allows it “to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[1]

Currently, for any work created in 1978 or after that date, copyright is assigned at the moment that a copyrightable work is fixed into a tangible medium.[2] According to Section 106 of the Copyright Act, a work is copyrightable if it required some (even very small) degree of originality and is fixed in a tangible medium.[3]

[1] U.S. Copyright Act, 17 U.S.C. §101
[2] U.S. Copyright Act, 17 U.S.C. §301.
[3] U.S. Copyright Act, 17 U.S.C. §102(a).


What Cannot Be Copyrighted?

Some categories of works fall outside of copyright protection. These works are in the public domain, meaning they are entirely freely available without copyright restrictions. Any work that fails to meet the criteria previously discussed (original works of authorship fixed in a tangible medium) falls into this category.[1]

The following are categories of works that cannot be copyrighted:

  • Ideas
  • Theories
  • Facts
  • Discoveries
  • Works of the U.S. federal government
  • Works with expired copyrights
  • Works outside the scope of copyright
    • Works not fixed in a tangible medium (e.g. choreography or improvisational performance that was not recorded or written down)
    • Titles, names, short phrases, solgans (though these may be protected by trademark law)
    • Works consisting entirely of information that is common property and containing no original authorship (e.g. standard calendars, lists or tables from public documents).[2]

[1] Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, 3rd ed (Chicago: American Library Association, 2012).

[2] Ibid., 15-19.

Get Help

Library Links

  • Copyright for Performing Artists
    See this guide created by the Performing Arts Librarian about copyright and how it applies to music, theatre, and dance.
  • Free and Legal Media
    There are several kinds of content that are free and legal to use. Some allow unrestricted on use (e.g. Publc Domain, Open Access), and others may have stipulations about free use (some Creative Commons).

Copyright Durations

The duration of that copyright for any works created during or after 1978 (or created but unpublished by 1978 [1]) is the life of the author plus 70 years, or if a work of corporate authorship, 95 years from the date of publication or 120 years from the date of creation, whichever occurs sooner.[2] Works created before 1923 are in the public domain and may be used freely (with some exceptions, as will be discussed shortly), and works published between 1923 and 1978 may or may not be under copyright, depending on the observance of copyright registration formalities.[3]

[1] U.S. Copyright Act, 17 U.S.C. §303.
[2] U.S. Copyright Act, 17 U.S.C. §302.
[3] U.S. Copyright Act, 17 U.S.C. §304.


Fair Use

Fair use the legal use of copyrighted material that exists in certain circumstances. There are no bright lines in copyright law that explicitly state when a use is fair and when it is an infringement. Instead, fair use is determined on a case-by-case basis, and centers around four factors: purpose, nature, amount, and effect, as discussed below.

Fair use has been called a right, a privilege, and a defense.[1] It is meant to balance the rights of copyright owners with the needs of the public and is directed towards advancing one of copyright law’s main goals, as stated in the U.S. Constitution, Article I, Section 8: “To promote the Progress of Science and useful Arts.” Fair use is very useful in certain academic settings, but has very limited application to commercial pursuits for professional performers. In order for a commercial use to fall under fair use, it generally has to be “transformative.”

When evaluating whether a use is considered fair use, and therefore exempt from copyright infringement, you must consider each of the four factors and then make a determination based on the weight of your argument.

The purpose or character of the use

Is the use for non-profit education or commercial purposes?  Courts usually favor the former as fair use, but there have been cases where educational uses have not met the criteria for fair use and cases where commercial purposes have.

The nature of the copyrighted work

Factual works are more likely to be suitable for fair use than fictional ones (because facts are objective and likely to benefit the public, and courts are protective of creative works), and published works more than unpublished (because the author has the right to control the first appearance of the work).  Use of commercial works created specifically for the educational market is usually not deemed fair use, because such use goes against the works' intended purpose.

The amount used

The larger the amount used in proportion to the whole, the less likely a court will be to find it fair use.  However, even uses of a small portion can be deemed not to be fair use, if that portion comprises the "heart of the work".

The effect on the potential market or value

If the use diminishes the value or market for the copyrighted work and/or the copyright holder is likely to face an economic loss they would otherwise receive, the use is not likely to be found fair.

[1] Kenneth Crews, Copyright Law for Librarians and Educators. Chicago: American Library Association (2012), 46.


Copyright Links

U.S. Copyright Office

Copyright and Fair Use Guides


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