Using Copyright-protected Materials

Describe the Work | Define Your Use | Identify Owners | Determine Copyright Status | Consider Other Rights

There are many reasons why one may want to include or incorporate copyright-protected material in a new work of original authorship. Consider songs that sample older songs or documentary films that include audio or visual material from myriad sources to create a new cinematic work. The use of copyright-protected work is also very common in academia, specifically for uses of scholarship, education, research, and publishing. 

Prior to using a work created by someone else there are many factors to consider about the work itself as well as defining how the work will be used or incorporated into a new original work. 

This section is designed to help you identify whether a work you would like to use requires permission and, if so, how to go about obtaining that permission. 

Unless you have determined or otherwise are confident that the work you’d like to incorporate is already in the public domain (such as older works whose copyright term has ended or works produced by the United States government) it is almost certain that a copyright exists for a fixed tangible work of original authorship and you will need to either acquire permission or a license to use that work, or will need to determine that there is an exception to the copyright in how you plan to make use of the work. 

Before trying to use copyright-protected work, it will be important to know the following things about the work:

1. A description of the work.
2. The portion of the work to be used. 

For example, if the portion of work you want to use is text from a book, you should be able to identify whether you want to use a passage, a page, or an entire chapter. Similarly, if using a music track, you’ll need to identify whether a selection of the track or the whole song is being used.

A description of the work should include:

1. Core information about the work: the type of work, title, author, publisher, copyright owner, and date of publication. 
2. Part of the work: for example, Pages 17-22 or chapter 12 from a book, 50 words from a poem, 30 seconds of a song, two minutes of a video, an entire photograph. 
3. Amount: Describe the amount you to use in terms of what percentage of the total work this represents, such as “three pages from a 250 page book” or “10% of a music or video selection.” 

The reason to know such exact information about the work you would like to use is because you’ll need to understand whether that work falls under fair use, whether you’ll need to seek permissions from the copyright owner(s) or otherwise acquire a license for the use, or whether there are multiple authors from which you’ll need permissions or licensing from in order to use the work. 

As copyright gives the owner many exclusive rights, it is likely that any permission or license requested for use will have to cover multiple rights. Remember that copyright owners enjoy the exclusive rights:

1. To reproduce the work in copies
2. To adapt the work to a new form
3. To distribute copies of the work to others
4. To display the work in public
5. To perform the work in public

Therefore, in defining your use, you will need to determine whether you are reproducing, adapting, distributing, displaying, or performing the work. You might want a combination of these rights which will require multiple permissions. 

Once you have established what you want to use and how you want to use it, you’ll need to determine who owns the work. If you need to seek permission for your use, you’ll need to contact the owner.

• Copyright notice
  Many works protected by copyright contain a copyright notice (look for the word “Copyright” or the symbol ©). If there is a copyright notice on the work, the owner’s name is listed. A copyright notice is not required to maintain copyright protection, so the absence of a notice does not mean the work is not copyrighted.
• Creator of the work
  If there is no copyright notice on the work, try to identify who created the work. There may be a contact name or some other information that will be able to lead you to the owner.
• Publisher
  It is important to remember that the person who created the work may not be the copyright owner. For example, many publishers ask authors to assign the copyright to the publisher. In such cases, the publisher is the copyright owner rather than the person who wrote the article.
  
  If the work is published, take note of both the name of the creator of the work as well as any information you may have on the publication in which it appeared. You may have to contact both the creator and the publisher to determine who owns the work or has the right to grant permission to use it.

Individuals may search these records at the Library of Congress or pay the Copyright Office to conduct searches. The Copyright Office also has publication that provides detailed information on this topic: Copyright Office Circular No. 22: How to Investigate the Copyright Status of a Work.

Pre-1978: The Copyright Office maintains records of registered works in the “Catalog of Copyright Entries (CCE)” for the years 1891-1978. 

Post-1978: Records from 1978 through the present are in a searchable online catalog.

This is not uncommon. Use whatever information you have as a starting point.

Title or Author: If you have some information about a work, such as the title of an article or the name of the author, you may be able to find information on the publication by searching through the UW Libraries databases. There are many databases available for a wide variety of periodicals. UW librarians can assist you in identifying an appropriate database to search.

If you cannot identify the author, owner, or date of creation or publication of a work, it can be difficult (if not impossible) to determine if the work is still protected by copyright and, if so, who holds the rights to the work.

If your project involves using such works, you need to proceed with caution. If your use seems to be a use that does not require permission (such as classroom use or fair use) you may be able to use the work. If the use appears to be one that requires permission, such as a publication or development of an unrestricted website, it is recommended that you do not use works that you cannot clear the rights to use.

The date of publication (or creation) is essential in determining whether or not any copyright in a work is still in effect. To make this determination you will need:

• Date of publication
• Date of creation, for an unpublished work.

Most published works contain a copyright notice that indicates the date the work was first published, so look for this information on the first page of a website or the title page of a book or journal. If you can’t locate a copyright notice or don’t know the exact date of creation or publication, see if you can estimate the approximate date. For example, you may be able to determine that a photograph is likely from the 1930s from the subject matter depicted in the photograph.

The term of copyright protection has changed over the years and determining whether a work is still protected by copyright can be a bit of a challenge. Currently, any work created today is protected for at least 70 years.

University libraries can be excellent sources for tracking copyright terms and when works fall into the public domain. 

In addition to copyright, other rights may be implicated by:

• images of people (publicity)
• company slogans and logos (trademark)
• novel ideas and inventions (patent)

Right of Publicity: Many states recognize an individual’s right to govern how his or her name, image, voice, or other identifying characteristics (as a whole termed the “persona”) may be used.

State Laws: The laws of each state vary widely, and if a project is intended for wide distribution, such as on the internet, it is recommended that the project be able to clear the law of the state with the most restrictive law in this area.
If you are not sure if your use of someone’s likeness in your project is appropriate, it is recommended that you route your question to the Attorney General’s office for a legal opinion.

Under Washington State Law: (RCW 63.60) Every individual or personality has a “property right in the use of his or her name, voice, signature, photograph, or likeness, and such right shall be freely transferable, assignable and licensable, in whole or in part.” This right survives the death of the individual or personality and exists whether or not the right was commercially exploited during the individual’s or personality’s lifetime. Use of the persona of any person, on or in goods or products, advertising, or fund raising, without permission of the owner of the right, constitutes an infringement. The infringement may occur even if the activity is not for profit.

Names in the News: Many educational, newsworthy, and public interest uses may be made without permission, however, this should not be interpreted as a blanket exemption for any and all educational, newsworthy, or public interest uses. If your project contemplates unrestricted publication or dissemination of works containing images and characteristics of individuals or personalities, it is recommended that you obtain permission for current and possible future uses as you are creating the project. This will enable you to ensure your work is publishable and eliminate the need to go back and obtain permissions in the future if a new use arises.

A trademark is a symbol used to identify and distinguish the source of a product. Service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

The mark itself may be a word, acronym, phrase, or design, or a combination of these elements. Trademarks are generally marked with the symbol “TM” (“SM” for service mark) or “®” for federally registered marks.

Using Copyrights Which Contain Trademarks: In using copyrighted works that also contain trademarks, such as images depicting logos or cartoon characters, care must be taken to ensure that your use of the trademark does not infringe the rights of the owner or infer an association between your project and the owner of the mark. For example, if you build a site that provides troubleshooting tips for Microsoft Word and you include logos from Microsoft, this might be an infringement because use of the logo might lead some to believe that your site is operated by, associated with, or endorsed by Microsoft. Quite simply, if you aren’t affiliated with a company, don’t use their logos on your site.

University of Washington Trademarks
The University of Washington controls the use of its trademarks. This includes the following:

• Husky logos
• Name “University of Washington”
• Letters “UW” in certain fonts and styles

Use and Permission: The University allows its trademarks to be used in official publications of the University and other uses deemed appropriate. If you are interested in using the University’s name or logos in your project, you need to read the rules and adhere to certain use requirements. Most uses require permission from the Office of Trademarks and Licensing.

The U.S. government grants exclusive rights to useful, new, and non-obvious inventions or designs in the form of a patent.

• A patent may be granted to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof.”
• The owner of a patent can prevent others from the manufacture, use, offer for sale, or sale of the patented invention in the U.S. and the importation into the U.S. of the same.

Copyrights and Patents:
If a patent has been obtained on an idea, anyone wishing to use the idea must obtain a license to use the invention, even if the use is unintentional or without knowledge that a patent exists. UW CoMotion for any questions about creation or use of patentable inventions.