1. Creation of copyright
Copyright is created when an original expression is fixed in a tangible medium. Protection adheres upon creation (registration with the U.S. Copyright Office is not required for copyright protection to exist). Notice of copyright (e.g. the "©" symbol) is not required for copyright to exist. Notice is desirable, as it identifies the copyright owner (handy if later someone needs to contact the owner seeking permission to make use of the copyrighted material). Notice also negates a defense of innocent infringement in an infringement suit. Registration, while not required for protection, is desirable in that it establishes a public record of copyright in the work, is a prerequisite to an infringement suit, and is necessary (within three months of first publication of the work) for a plaintiff in an infringement suit to be eligible for statutory damages.
2. Rights granted to the copyright holder
Copyright entitles the holder to five exclusive rights:
the right to reproduce the work;
the right to prepare derivative works;
the right to distribute copies by sale;
the right to publicly perform the work;
the right to publicly display the work.
3. Works which cannot be copyrighted
Works which may not be copyrighted include:
works lacking sufficient originality;
works in the public domain;
works which the copyright holder has expressly made available to the public;
works developed by the Federal Government;
the ideas, methods, and processes underlying the work.
4. Penalties for infringement
Penalties for infringement activities can include:
Injunctive relief (e.g. court order to cease infringing activity);
Impoundment of infringing materials;
An award of actual damages and lost profits, or
An award of statutory damages (potentially up to $150,000 per work infringed, if the infringement is willful).
5. Fair Use
Title 17, Chapter 1, Section 107 of the U.S. Code creates the Fair Use exemption. Whether a given use is a "fair use" is determined in the context of a four factor analysis: 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality of the portion of the copyrighted work used, and 4) effect of the use on the potential market for the work. The TBR Office of the General Counsel is available to assist faculty and staff of TBR Institutions who want an opinion regarding whether a given use of copyrighted material qualifies as a "fair use".
6. Obtaining permission
TBR faculty and staff who wish to incorporate copyrighted material into their classroom or web-based instructional materials and who do not believe the use is exempted should obtain permission from the copyright holder for use of the material. Two approaches to obtaining permission are discussed below. Depending on your specific circumstances, other approaches may be appropriate. TBR faculty encountering difficulties with these two approaches should contact the TBR Office of the General Counsel.
The Copyright Clearance Center, http://www.copyright.com, is authorized by numerous publishers and other copyright holders to grant permission for the use of copyright and to collect fees for that use.
If the copyright holder is known and is willing to deal directly with requests for granting permission for use of copyright, a phone call to the holder followed by written correspondence may be an appropriate approach.