The courseware materials greatly enhanced the faculty member's teaching. Many students were enthusiastic and seemed to be learning more. It wasn't long before other faculty members, even some outside her institution, became interested. She contacted the publisher of the textbook on which she based the courseware materials to discuss publishing her work. They were very interested but they asked many questions, some of which surprised her.

Questions from the publisher:

Is she the only copyright owner of the materials?

No, she is not, but she can get assignments from other owners.

Did she use copyrightable expression belonging to someone else?

Yes, she did - a lot of it in fact.

Does she know who the copyright owner for each piece is?

Well, that might take some time to figure out and she's not sure where to start.

Has she gotten permission for all materials owned by others?

Well, uh, she was relying on fair use for most of those materials. Why does she need permission now?

And, of course, the publisher expects her fully to indemnify the publisher against any harms that might happen to a copyright owner if her work infringes the owner's rights.

Fully indemnify? What exactly does that mean?

Now she has a lot of questions too:

What happened to fair use?

If she used the fair use test, she would see that the first of the four factors asks whether the work is for nonprofit educational purposes or commercial purposes. The answer to this question affects the evaluation of the other three factors. Sometimes a use that is fair in a nonprofit educational context is not fair in a for-profit commercial context. That's the nature of the test - change the facts and the results change, sometimes dramatically.

Most publishers limit their reliance on fair use to narrow circumstances such as using short quotations in works of commentary and criticism.

Does the publisher or the artist own copyright in illustrations in a book?

She should remember that the author/artist owns copyright initially, though the publisher might have required the artist to assign the copyright to the publisher as a condition of publishing his work. In general, she should usually start with the publisher; if he says he does not have the right to grant permission for a particular image, she'll need to contact the artist.

Whom do you ask for the right to use music in the background?

Use of short clips of music may be a fair use. For more extensive uses, the music industry has an elaborate scheme for licensing rights. There are performance rights, mechanical rights, synchronization rights and compulsory licenses to make records, among others. The Harry Fox Agency in New York is authorized by most music copyright owners to license the right to use their music as background.

She can find more information in Getting Permission.

Where is that student author today?

Good question. Good luck.

Are any of the images in the public domain?

For materials that were published before March 1, 1989, the absence of a copyright notice would, in most cases, place the work in the public domain. Other works published before 1923 would also be in the public domain. There's a handy chart online that explains more about When Works Pass Into the Public Domain.

Unpublished works created before 1978 begin to pass into the public domain on December 31, 2002.

What if she can't locate an owner or doesn't get a response; who decides how much risk is acceptable?

There is risk involved in everything we do. In this area, we prefer to eliminate it altogether. If it cannot be completely eliminated, it should be up to those who will have to pay the cost of an infringement lawsuit to decide the level of risk with which they are comfortable. For example, the University has accepted a certain level of risk by creating its Copyright Policy with explanations of how to use the fair use test. Similarly, publishers decide to accept a certain level of risk when they establish their policies that set word limits for unlicensed quotations.

An unlocated or unresponsive copyright owner presents a risk that the owner will some day "appear" and be upset with a use of his or her work. This may not be a great risk, especially when a thorough search has revealed no owner. Nevertheless, it's a decision in which the University or the publisher should participate, not one for the faculty member alone.

What if someone says no?

If the faculty member decided that the use was not fair and therefore she had to ask permission and the owner says no, that's the end of it.

On the other hand, if there is a reasonable argument to be made that the use is fair, and she was asking permission to be on the safe side (since fair use is always somewhat nebulous), she can still rely on fair use even if the owner says no. She should be very sure of herself in this instance, however, because she may very well be challenged regarding the use.

Fair Use Home Final Quiz