Using Copyrighted Material in School

Many copyrighted works can help teachers and students in the classroom. It wouldn't make sense for them to buy licenses for works they use to demonstrate an idea or back up an assertion on a term paper. There are copyright protection laws educators and students must follow.

The Fair Use Doctrine allows teachers and students to use certain copyrighted works for free in school. The use must be for educational purposes.

While the law allows people to use original works of authorship for educational reasons, it requires them to pay a fee if their use goes beyond what one considers fair. Institutions should educate their students and faculty about what constitutes fair use and when intellectual property law requires them to pay copyright holders.

This FindLaw article explains what the law means by fair use. It also describes the types of intellectual property rights educators must respect. Finally, it touches on how the internet and social media impact authors' and creators' exclusive rights to their work.

Copyright Law and Protected Works

A person can copyright something tangible that they create. This could be a book, recipe, screenplay, or sound recording. They can apply to the U.S. Copyright Office and request a copyright registration for their work. Entrepreneurs and small-business owners act as agents of their companies and can register works.

How Is a Copyright Different From a Patent or Trademark?

It can be easy to confuse a copyright with a patent or trademark. Suppose you don't want to commit copyright infringement and pay attorney's fees and damages. In that case, it's essential to understand the basics of:

• Copyrights: Artists, authors, and musicians can protect their work with a copyright. A copyright owner holds exclusive rights to use the protected work. They can license others to use it for a fee. Someone who writes a jingle for a product advertisement may apply for a copyright to ensure that other manufacturers or songwriters don't use the same jingle or tune in commerce.
• Trademarks: A trademark is similar to a copyright in protecting a creation from infringement. An example of a trademark is a business name. Companies like Coca-Cola and Dunkin' Donuts have trademarks, so others cannot profit from their protected corporate name and registered product names. Potential trademark holders must apply to the U.S. Patent and Trademark Office (USPTO) for trademark registration. Once the USPTO grants the trademark, others can't use it commercially. If someone attempts this, the trademark owner can sue them for infringement.
• Patents: People who invent new products, designs, or plants can apply for a patent to the USPTO. Inventors submit their patent applications to the USPTO and receive legal protection once the USPTO approves it. Other individuals and entities can't claim ownership of the invention once the inventor secures a patent. An example of something requiring a patent is a medication that treats diabetes. The USPTO may grant a patent if the drug is unique and works differently from other medicines. Other pharmaceutical companies cannot produce and market the medication without the patent holder's permission.

Once a creator holds a patent, trademark, or copyright, they can approve or deny derivative works. They also have the power to grant others the right to use their content, such as a nonprofit hospital or school. At the same time, creators don't have the blanket ability to prevent everyone from using or referencing their material. The law allows for fair use, which we discuss in more detail below.

Fair Use

Copyright protects works from unauthorized copying, performance, and display. This protection incentivizes creators to produce new content since they have the sole right to use or market it.

However, in certain situations, the Copyright Act recognizes it is in the public's best interest to allow people to use protected work without compensating the copyright holder. For example, quoting a small passage from a novel in a book report constitutes fair use.

If a student needs to quote or paraphrase several lines from a play for a term paper, it would not be copyright infringement. Suppose the same student decides to include the original content in a magazine article. The student is paid to write the article (commercial use). It's not fair use if the student does not attribute the work to the author.

There is no exhaustive list of fair uses, but the U.S. Copyright Office has a fair use index. Whether a use constitutes infringement depends on the circumstances surrounding it and whether it violates trade secrets.

Factors That Determine Fair Use

A content creator of a copyrighted work would rarely accuse a student or educator of copyright infringement. It's usually apparent when someone uses the content for educational purposes. But there are times when the courts must determine if an individual or group committed copyright infringement.

Courts consider four factors when determining whether a use is fair:

• Was the purpose and character of the use commercial or noncommercial?
• What was the nature of the copyrighted work? Was the new work creative or factual?
• What portion was used in relation to the entire work? Did the person use a substantial part or just a small part?
• What was the effect of the use on the work's potential market? Did the potential infringer's use affect demand for the copyrighted work?

The bottom line is that the law prohibits people from profiting from the work of others. It makes sense that the law would allow broad use of protected works in the classroom.

Intellectual Property Rights and the Public Domain

Educators and students can use some copyrighted works without worrying about copyright infringement. The law refers to these works as being in the "public domain." This means people can use this copyrighted content, even for commercial use, without permission from the creator or author.

According to the U.S. Copyright Office, the public domain includes:

• Work whose authors never sought a copyright
• Content that does not meet the requirements for copyrighted material
• Content that once had a copyright but is now available to the public because it was abandoned or expired upon the author's death (plus 70-100 years, depending on when the original copyright was secured)

Examples of works that are part of the public domain include:

• Titles of books, movies, and songs
• Some songs like "Happy Birthday" and "Star-Spangled Banner"
• Movies like "A Star Is Born" (1937)
• The work of William Shakespeare, Leonardo Da Vinci, and Wolfgang Mozart
• Essays and writings by Aristotle, Edgar Allan Poe, Plato, and Confucious

It can be challenging for educators to determine if a work is part of the public domain. One rule of thumb is that all content created before 1928 is available. Books, art, and other creative works before this date will not have a copyright.

Another general rule for determining if something is part of the public domain is that a work is only protected by copyright for 70 years after the author dies (or 95 years after creation for anonymous or works for hire). For example, if an author copyrighted their book in 1950 and died in 1970, their book is free for use in 2040.

If you need help determining whether a piece of work is in the public domain, you can do a quick online search. It shouldn't be difficult to determine whether the work is protected. But if you want to make sure, speak to an intellectual property lawyer.

Different Types of Media

Students and teachers learn using various media: books, internet articles, videos, and sheet music.

The USPTO has different rules for different types of creative works. For example, the Office established clear guidelines to help educators and students determine when, why, and how to copy television broadcasts for educational purposes.

If educators deviate from these guidelines, their use may still be fair. But it's best to err on the side of caution and follow the fair use guidelines.

Educators and Students: Need Legal Advice?

The fair use doctrine isn't an excuse to get out of paying for copyrighted works. But it does help students and teachers take advantage of the vast wealth of knowledge in the world without paying for every minor use of copyrighted work.

If you have questions about fair use, contact an experienced intellectual property lawyer today to avoid costly mistakes. Many intellectual property lawyers are small business attorneys who understand commercial use and licenses.