This guide intends to refer NWC community users to accurate information. However, information received from the NWC Library or the NWC Copyright Librarian is neither legal advice/opinion nor legal counsel to the college or any members of the NWC community. Please contact the NWC Office of General Counsel or NWC Staff Judge Advocate's Office for NWC-related legal advice and interpretation of the law, or personal counsel for personal legal advice. The appearance of hyperlinks does not constitute endorsement by NWC of sites or the information, products, or services contained therein, nor does NWC exercise editorial control over the information found at these locations. Such links are provided consistent with the stated purpose of this guide. U.S. copyright law is subject to change.
Here are a few common misperceptions (and corrections) about copyright law basic principles:
As long as something is for educational use, one is not violating copyright laws, right?
Unfortunately, no. Although there is a limited exception for display (not reproduction) in face-to-face teaching, not all educational uses of copyrighted works will fall under that exception. Fair use is decided on a case-by-case basis (it is not a blanket exception).
How does one know FOR SURE that something is a fair use?
Unfortunately, it is hard to know when something is a fair use for sure because, ultimately, only the federal court decides fair use cases and only on a case-by-case basis. Generally, one should exercise good faith judgment and consider their risk assessment when making fair use determinations. This does not mean that one should not exercise their fair use rights, but that they should do so in a considered way.
What role does licensing play in specific copyright questions?
A very large role. Essentially, an author can contract away (through licensing) any of their copyright protected rights. For instance, if an author writes a journal article and assigns their copyright entirely to the journal publisher in a contract, then that author no longer has any right to share their article either publicly or privately without the permission of the journal publisher.
Also, the library licenses its electronic collections (e.g., journals, eBooks) and those resources have contractual permissions and restrictions that supersede copyright law. Contract law is state law, whereas copyright law is federal law. If an authorized user breaks NWC's licensing terms, then NWC is in breach of its contract with the vendor. NWC then runs the risk of no longer being able to provide those resources to the NWC community or worse, may face litigation.
When weighing fair use, paid permission licensing mechanism availability is a large consideration for the 4th factor of fair use (in addition to print or eBook purchase availability).
Should an author put some sort of copyright notice on their work?
It is wise to do so because, even though it is not required, many people misunderstand basic copyright law rules. So, putting a notice on one's work will remind others not to use it unless they have a copyright exception that applies or they have obtained the rightsholder's permission first.
These resources provide a general overview of U.S. Copyright Law. The U.S. Copyright Office features an online application to register the copyright in one's creative work, as well as links to U.S. Copyright Law itself. The other resources include useful educational information on a variety of copyright issues.
What are copyright instructions within the Navy?
This guide uses the following terms in shorthand throughout this guide. Please review so you better understand the intent and how it relates to U.S. copyright law.
If any shorthand in this guide raises any questions, please reach out to copyright@usnwc.edu
Congress has the power, “…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
- U.S. Constitution, Article I, Section 8, Clause 8 and Congress.gov's explanation
View the full text of U.S. Copyright Law (U.S. Code: Title 17. Copyrights)
This legislation grants the creator (author, artist, composer, etc.) the exclusive right to control several aspects of their work for a limited period of time: the right to reproduce the work; the right to prepare derivative works based on the copyrighted work; the right to distribute copies of the work by sale (or other transfer of ownership), rental, lease, or lending; the right to perform a work publicly; and the right to display a work publicly. The rightsholder may authorize others to do these things as well. 17 U.S.C. § 106 sets out these rights. As with every rule, there are limitations and exceptions to copyright law.
Copyright Law of the United States (Title 17)
What is protected?
Copyright law gives the rightsholder (often the author or publisher) the right to control certain uses of works that are protected by copyright for a limited period of time. Copyright law also gives users the right to make certain uses of those works protected by copyright without requiring permission from the rightsholder. “Copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work” (Feist, 499 U.S. at 349–50, 111 S. Ct. at 1290).
In the United States, copyright protects only “original works of authorship fixed in any tangible medium of expression.” To be eligible for copyright protection, a work must be:
Works are protected the moment they become fixed. There is no need to register a work with the U.S. Copyright Office to receive this protection. Despite this, registration may be beneficial because it is required before a federal lawsuit can be filed in the event that someone infringes on a creator’s copyright.
Copyright is designed to adapt with the times and is malleable to cover works created by new technologies or innovations (as long as the work has human authorship).
In many cases, state common law copyright protections may be able to protect unfixed expressions.
What is not protected?
Copyright does not cover everything. Materials excluded from this legislation include ideas, titles, facts, processes, works prepared by the federal government (with some exceptions), or works in the public domain. See 17 U.S.C. § 102 for more information.
The fact that ideas are not protected by copyright law is one of the more difficult concepts to understand. A person can have an idea for a short story, but until that idea is fixed in print, it is not covered by copyright law. It is also for this reason that people can have two short stories about the same general topic or theme. Copyright protects only the expression of the idea and the order of the physical words on the page, not the idea itself.
To the extent however, facts or pre-existing material is selected, arranged and presented in an original manner, such original selection and arrangement is eligible for copyright protection. In such situations, it may be necessary to obtain permission to utilize any such compilation copyrights.
United States copyright law only protects works of human creation (not works created, for example, by animals).
Many people confuse copyright with patents and trademarks. For clarification, please visit the U.S. Patent and Trademark Office (USPTO) site on the Difference Between Patents, Trademarks, Servicemarks, and Copyrights.
Please see Project Gutenberg's site for an explanation of "Sweat of the Brow" and copyright, "Work performed on a public domain item, known as sweat of the brow, does not result in a new copyright. This is...founded in a study of case law in the United States. This is founded in the notion of authorship, which is a prerequisite for a new copyright. Non-authorship activities do not create a new copyright."
Copyright and Artificial Intelligence
Copyright laws have changed over the years so not all works follow these exact rules. Under current laws, the copyright for works created now begins when the work is created and lasts throughout the author’s life plus seventy years (more if created by a corporation). Works created earlier follow a variety of different rules.
Works that are not subject to copyright are in the public domain. They may be used without permission. In the United States, a copyrightable work is in the public domain if:
For more guidance, please see the public domain page and the Copyright Term and the Public Domain chart (Cornell, updated yearly).
The best resource to identify copyright registration (1978-present) is the U.S. Copyright Office's public catalog (and their pilot site).
It is worth noting that every country has its own rules about when a copyrightable work enters the public domain.
Duration of Copyright
Most works, subject to copyright protection, created in the United States today will be protected until 70 years after the death of its last surviving author. Other rules apply for certain works. For instance, if a work was created by the employee of a corporation acting within the scope of their employment, the copyright will last either 95 years after publication or 120 years after creation of the work, whichever results in a shorter term.
Before March 1, 1989, duration for published works was tied to compliance with formalities or conditions. Thus, publication date, publication status, registration, notice, and renewal all impact copyright duration. In addition, because of international treaty obligations, the nationality of the author(s) and the location of publication(s) can also impact duration.
As of 1 January 2024, all works with authorized publication dates in the United States before 1929 are in the public domain in the United States.
Copyright Formalities
In the United States today, copyright protection automatically covers all new copyrightable works. The moment a copyrightable work is fixed in a tangible medium of expression (e.g., written on a piece of paper, recorded on video, saved on a hard drive, or posted on the web), it is subject to copyright protection.
In the past, authors had to comply with certain formalities or conditions in order to obtain copyright protection. These formalities included registering the work with the U.S. Copyright Office and placing a copyright notice on the work. Copyright law no longer requires that authors comply with these formalities merely to obtain copyright protection. However, registering a work and putting a copyright notice on a work still come with legal benefits, so authors often do these things anyway.
Copyright Renewal
Prior to 1964, U.S. law divided copyright terms into two parts: the initial term and the renewal term. At the end of the initial 28-year copyright term, the copyright holder would have to renew the copyright in order for the work to remain protected during the renewal term (for a total of 95 years after publication date). If you are trying to determine whether the copyright in a work published before 1964 was renewed, the following resources are useful for renewal research:
Typically, you will find renewals for all works published after 1950 in the U.S. Copyright Catalog, while the Catalog of Copyright Entries can be useful for finding renewals of works published prior to the early 1950s. You may also want to consider working with the U.S. Copyright Office to perform a search of its records.
To understand the abbreviations and codes used in the U.S. Copyright Office Catalog Record, please see this abbreviation and code guide. For details on the U.S. Copyright Office's Administrative Copyright Classification Systems, please see this guide. For details on supplementary registration, please see this link from the U.S. Copyright Office.
Copyright Notice
Under current U.S. law, you do not have to provide a copyright notice on your work to receive copyright protection. However, if you are making your work publicly available, you may want to.
Putting a copyright notice (the copyright symbol (©), the year of publication, and the name of the copyright holder) on a work tells the rest of the world that the work is protected by copyright. If the copyright holder later sues someone for infringing their copyright in the work, they can point to the notice to show that the defendant is not an “innocent infringer," a point which can lead to higher damages. A copyright notice also lets others know whom to contact if they would like a license to use the work.
This PDF publication from the U.S. Copyright Office explains the basics of copyright law, including copyright notice.
How to Investigate the Copyright Status of a Work: U.S. Copyright Office Circular 22
Under current U.S. law, you do not have to register your eligible work to receive copyright protection because it is protected by copyright the moment it becomes fixed.
You may want to register it anyway, because copyright registration comes with certain legal benefits. If the work is registered within three months of its publication date or before a particular infringement occurs, the copyright holder can recover statutory damages (monetary awards that need not be connected to actual harm suffered by the copyright holder) and attorney’s fees if a federal infringement suit is successful. However, despite these benefits, many works are never registered because registration takes time and money.
For copyright registration instructions and forms, visit the U.S. Copyright Office website. If you have any questions regarding copyright registration, the U.S. Copyright Office has a toll-free help line at 1-877-476-0778. You may register a work at any time while it is still in copyright.
Registration costs can vary depending on the type of work and whether or not you are the sole author. The U.S. Copyright Office's Circular 4 has the most up to date information about registration fees.
Copyright and Artificial Intelligence
As the United States Copyright Office explains, there is no single law governing "international copyrights." The laws of the individual country govern as do international treaties and agreements.
Copyright law is national in scope; national law will apply to acts of infringement committed in a particular country, regardless of the national origin of the work infringed.
The U.S. adheres to the leading copyright convention, the Berne Convention, which is administered by the World Intellectual Property Organization (WIPO). Works published in the U.S. as well as ones published in other countries are under the copyright protection in this country if the country in which the work has been created is a signatory of international copyright agreements.
One provision that may apply to a researcher attempting to use information in the United States that originates from a foreign country is 17 U.S.C. § 104A. That section of U.S. law restores copyright protection to international works that would have otherwise fallen into the public domain due to a failure to follow United States legal formality requirements (for example, between the years 1924 and 1968, a failure to register the work with the U.S. Copyright Office or a failure to renew such a registration).
However, there is an exception to restoration in the United States for works that were in the public domain in their home country as of January 1, 1996 (which is why it is important to also understand the term limit for copyright in the international country as well).
If § 104A does operate to restore protection to an international work (this provision is limited to countries adhering to the Berne Convention, the WIPO Treaty, etc.) then the term of protection in the U.S. for the international work becomes 95 years from the date of publication of the work.
For additional information, please see TerraLex's Cross-Border Copyright Guide 2019 that provides an overview of copyright law in 18 countries and is written by local experts.
Per UPENN's Online Books Page, in the U.S., works are not eligible for copyright protection unless they are published or created in a country that has copyright relations with the U.S.
Note: government works from other countries and global institutions (like the United Nations or the World Bank) are not in the public domain (consider using URL direct links and if links are not possible, permission is required).
Economic Rights
Economic rights form the bulk of a copyright holder’s fundamental rights under U.S. law. They stand in contrast to moral rights, which are less recognized under U.S. law.
In U.S. law, the economic rights of copyright holders are listed in 17 U.S.C. § 106:
Subject to §§ 107-122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
Derivative works include translations. These exclusive rights may be referred to as the "bundle of rights" and are cumulative and may overlap. Each of the enumerated rights may be subdivided indefinitely and may be owned and enforced separately.
The Right of Reproduction
The right of reproduction is implicated if:
If one of these conditions is not met, the reproduction right is not implicated. In addition, if the user’s new work is not literally or substantially similar to the original, creating it does not implicate the derivative works right, distributing it does not implicate the distribution right, and performing and displaying it does not implicate the rights of public performance and display.
As an example, an artist holds the copyright in a photograph they take. That artist has the right to control reproduction of their work. However, copying the photograph does not implicate the author’s reproduction right unless the copy is substantially similar to the original. If someone photocopies or scans the original, they will likely produce a copy that is substantially similar to the original, implicating the reproduction right. If someone posts that copy to a website, they will also likely implicate the rights of public distribution and public display.
To further that example, suppose instead that a painter uses the above artist's photograph as a reference work while creating a painting of the same subject as the photograph. In that case, the painter will only implicate the reproduction right of the photographer if the painting is substantially similar to the photograph. If the painting is not substantially similar, the painter will not implicate the reproduction right, and can also distribute and display the painting without implicating the photographer’s rights of public distribution and public display.
Substantial Similarity
Courts disagree on how to assess substantial similarity, so the rules in this area vary from one part of the United States to another. Substantial similarity is a level of similarity that shows improper appropriation of the plaintiff’s work, one of the requirements for a prima facie infringement claim. If the similarity of the defendant’s work to protectable elements in the plaintiff’s work is minimal, or if similarity only exists with regard to unprotectable elements of the work, then there is no substantial similarity. For a more detailed case review, please see University of Michigan Library's Substantial Similarity Guide.
The Rights of Public Performance and Display
Under U.S. law, public performance and public display are among the rights of the copyright holder. If a performance or display of a work does not qualify as public, it does not implicate any rights of the copyright holder. The U.S. Copyright Act defines "public" as follows:
To "perform" or "display" a work "publicly" means—
Therefore, an academic setting would be considered a place of public performance and display.
The definition of "transmit" is to communicate a performance or display "by any device or process whereby images or sound are received beyond the place from which they are sent." This definition is broad enough to include all conceivable forms and combinations of wired or wireless communications media that may reach the public.
Moral Rights
The legal doctrine of moral rights recognizes the personal reputation of an artist or creator. Moral rights include the right of attribution and the right of integrity. The right of attribution means that that the creator has the right to have their name associated with their work -- or disassociated if the work is damaged or modified in a way that leads the artist to feel that the work is no longer an embodiment of their intended expression. The right of integrity means that the work may not be changed, altered, distorted, or mutilated. In 1928, these concepts were included in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work, which governs international copyright.
Moral rights stand in contrast to the economic rights that are more broadly protected under U.S. copyright law, such as the right of reproduction and the right of distribution. The U.S. Copyright Act recognizes moral rights in a very limited way in 17 U.S.C. § 106A, the Visual Artists Rights Act. This provision was passed in 1990 as part of the entry for the U.S. into the Berne Convention. It applies only to "works of visual art,” either a painting, drawing, print, or sculpture, or a photograph produced for exhibition purposes only, where the work exists in a single copy or in 200 or fewer copies signed and numbered by the artist. Many types of works are specifically excluded from this protection, including works made for hire. The provision allows artists to waive these rights under contract.
For more information, please see the U.S. Copyright Office's report Authors, Attribution, and Integrity: Examining Moral Rights in the United States 112–116 (Apr. 2019). This report discusses how such interests are generally protected under state right of publicity laws.
Rights of First Sale
Copyright owners have the right to control the first public distribution of an authorized copy or phonorecord of their work (by sale, gift, loan, or some rental or lease arrangement). 17 U.S.C. § 109 ("First Sale Doctrine") makes clear that the copyright owner’s rights under § 106(3) cease with respect to a particular copy or phonorecord once they have parted with ownership of it. This is why libraries can lend out physical copies to patrons and why second-hand bookstores may sell their inventories.
Resources on the Rights of Copyright Holders
The seventh of the CopyrightX video lectures focuses on the copyright holder’s rights to reproduce and modify the work.
The eighth of the CopyrightX video lectures focuses on the copyright holder’s rights to distribute, perform, and display the work publicly.
This module from the Copyright for Librarians (Berkman Klein Center) online course explains economic and moral rights from an international perspective.
Copyright law gives users the right to use copyrighted material without permission under certain circumstances (17 U.S.C. §§ 107-122) notwithstanding the provisions of 17 U.S.C. §§ 106 and 106A (the exclusive rights of the author). These provisions are often called exceptions and limitations to copyright law. In the U.S., these statutes include fair use, certain uses during face-to-face teaching and distance education, and certain uses by libraries and archives. If a use falls within the statute's parameters, then permission from the rightsholder is not needed.
If one's planned use implicates one of the rights of copyright holders and does not fall under a user right, then one will need to get permission from the copyright holder or change their plans (find alternative resources).
FAQ
If there's no specific exception, such as face-to-face teaching, does one have to first ask permission from the copyright owner before using a particular item?
Not necessarily. Remember to consider fair use, which is a more global exception, before determining if one must ask for permission from the copyright owner.
How does licensing play a role in considering whether one can use a particular item?
U.S. federal law's codified user rights can always be contracted away through licensing. Even if one might otherwise have a specific right to use an item, for instance, a face-to-face teaching exception to show a legal copy of a movie in class, licensing may prevent them from showing a movie from a particular source. Netflix is a good example of this type of situation. When someone sets up an individual account with Netflix, they agree (in a click through license) to use it only for "personal use." Thus, many experts agree that one generally cannot show a work from Netflix in class because they would be violating the agreed upon license. Netflix does not offer institutional or educational accounts (though they do offer educational screenings of certain documentaries).
Also, the NWC Library licenses most of its electronic collections (journals, eBooks, etc.) and those resources have vendor-specific contractual permissions and restrictions that supersede copyright law and can sometimes restrict user rights. Please see individual resource license terms in the library catalog for guidance.
Copyright Infringement
Copyright infringement occurs when a user of a work takes advantage of one of the rights granted to creators under the law without their authorization:
For details in the law, see Infringement of copyright
Remedies for Infringement
Money damages in copyright infringement actions are commonly awarded under some combination of three legal theories:
Statutory damages are specified in the Copyright Act as follows:
17 U.S.C. § 504 (c)(2): "...The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords."
For details in the law, see Remedies for Infringement: Damages and profits
U.S. Copyright Law defines terms used in Title 17 in § 101.
Under U.S. law, the initial copyright holder is the author of the work. In most cases, copyright law treats the creator(s) of the work as the author(s). Copyright is automatic; it applies to the work as soon as it is fixed (or recorded) in some way. If one writes an essay or article, they are the owner of that article unless and until they contract away their rights (such as in a publishing agreement).
If multiple people create a work, only those who have contributed copyrightable elements are considered authors for the purpose of copyright law. Coming up with the idea for the work alone is not enough to be an author. See "joint ownership of a copyrighted work" for more information about multiple authors.
If someone creates a work as an employee (or in certain cases, as a contractor), that person’s employer is considered the author of the work. See "works made for hire" for more information.
Copyright law gives the author certain rights. In the United States today, those rights can be separated and subdivided by the author. Giving away the bundle of rights that constitute copyright to another is often called a grant. The author can give others permission to exercise some or all of those rights. That is called a license. If the author agrees only to give that permission to one entity at a time, it is an exclusive license.
If an exclusive license lasts until the end of the copyright term, it is a transfer of copyright. To be valid, a copyright transfer must be in writing and must be signed by the rightsholder or the rightsholder’s agent. The recipient of a copyright transfer can then license or transfer the copyright.
If the transfer is exclusive it has to be in writing. With books or articles, this usually occurs in a publishing agreement. In the academic context, licenses and transfers of copyright are particularly common in publishing agreements. In many cases, the author transfers all or part of the copyright in their publication to the publisher.
Creative Commons has developed a series of licenses that allows copyright holders to retain control over their works, but still make them available under terms more favorable than copyright allows. Essentially, under Creative Commons licenses, owners of copyright have allowed others to use their work with certain limitations specified in the Creative Commons license.
A work is considered joint if it meets the following conditions:
If two or more people make copyrightable contributions to a work with the intent that their contributions be merged into one unitary whole, then they are joint authors under U.S. law. No written contract is necessary to create a joint work. As joint authors, they hold equal shares of the copyright from the time the work is created. A joint rightsholder owes their co-rightsholders their shares of the profits from uses or licenses they make of the work. Joint rightsholders can grant non-exclusive licenses unilaterally. Each author owns an undivided portion of the entire work. So, one author can grant another person permission to use the work without the agreement of the other author. The only obligation is to share in any profits received. To transfer the copyright or grant an exclusive license, all joint rightsholders must agree.
When one of the joint authors passes, the rights to the work function like a tenancy in common. What this means is that if one of the joint authors dies, their share is conveyed to their heirs, not the other authors who are still alive.
There is precedent that it can be difficult for a contributor to a collective work to qualify as a joint author. The contributor's claims as a joint author can be defeated if any of the other contributors did not want to share authorship and made that clear in some way.
In the case of a “work for hire,” the author under U.S. copyright law is the person who employed or commissioned the creator of the work, rather than the actual creator of the work.
There are two exclusive ways a work can be a work for hire:
Neither moral rights nor termination provisions are applicable to works for hire. Duration of copyright protection for a work for hire is 95 years from first publication or 120 years from creation, whichever results in a shorter term.
In the first exclusive way a work can be a work for hire above, courts have noted that to determine if a party is considered an employee, the hiring party would have the right to control the means of the work that party creates. Other factors that courts have viewed as determinative of an employer/employee relationship (though no one factor has been determinative) include the skill required for the work, source of the tools, location of the labor, duration of the relationship of the two parties, right to assign additional projects, control over hours of work, method of payment, role in hiring assistants, business of the hiring party, the provision of employee benefits, and tax treatment of the hired party.