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.
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).
 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.”
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. 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.
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.
The following are categories of works that cannot be copyrighted:
- 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).
 Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, 3rd ed (Chicago: American Library Association, 2012).
 Ibid., 15-19.
The duration of that copyright for any works created during or after 1978 (or created but unpublished by 1978 ) 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. 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.
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. 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.
 Kenneth Crews, Copyright Law for Librarians and Educators. Chicago: American Library Association (2012), 46.
Copyright and Fair Use Guides
- Selected Copyright Resources Available at the Leatherby Libraries
- Circular 21 - Reproduction of Copyrighted Works by Educators and Librarians
- Copyright.com from the Copyright Clearance Center
- Copyright & Fair Use from Stanford University Libraries
- Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web from the University of Maryland University College
- Copyright for Librarians. Copyright for Librarians is a joint project of the Berkman Center for Internet & Society at Harvard University and the Electronic Information for Libraries (EIFL), a network of library consortia in 50 countries in Africa, Asia and Europe. The goal of the project is to provide librarians in developing and transitional countries information concerning copyright law. More specifically, it aspires to inform librarians concerning:
- copyright law in general
- the aspects of copyright law that most affect libraries
- how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped
- Copyright Information For Educators - University of Washington
- Copyright Resources Line - Yale University
- Copyright Term and the Public Domain in the United States - Cornell University
- The Digital Millennium Copyright Act (DMCA) of 1998 - United States Copyright Office
- Fair Use of Copyrighted Materials from the University of Texas
- Fair Use Guidelines for Educational Media from University of Texas
- Know Your Copyrights Brochure - Tips for faculty & teaching assistants in higher education
- Notice Warning Concerning Copyright Restrictions - Copyright Restriction Notice
- Public Domain Digital Slider Tool - created by American Library Association and Michael Brewer
- Section 108 Copyright Tool - created by American Library Association and Michael Brewer
- Teach Act - Best Practices Using BlackBoard from ALA
- U.S. Code Title 17, Chapter 1, Section 108 Limitations on exclusive rights: Reproduction by libraries and archives
- Using Copyrighted Works from North Carolina State University
- When Works Pass into the Public Domain - Chart from UNC