What we offer below is a step-by-step way to approach answering these usage rights questions.
Why do you need to think about copyright and other rights issues?
Are you using materials created by other people? Perhaps you're using photos, text excerpts, scientific drawings, or diagrams? You might need the author's permission to include them before distributing. This page explains when you need permission and how to get it.
Are you publishing information about particular living individuals? You might need to consider their privacy rights. This page will help you address privacy-related questions that affect how you can make your work available.
Are you working with culturally sensitive materials that may raise ethical concerns for you to share it? You may want to evaluate how or whether to publish certain materials digitally if sharing such materials could lead to exploitation of people, resources, or knowledge.
- Once you've finished creating your work, do you have questions about what you own, and what your rights as an author are? Read more below.
Here is the workflow for copyright, fair use, and other legal considerations, which we then explain in detail.
You don’t need the copyright holder’s permission to include an excerpt / photo / diagram / whatever-you’re-using if any one of the following is true:
- The work is in the public domain. Public domain works are open for use with no permission needed. Just because a work is online does not mean it’s in the public domain. Rather, public domain refers to works for which copyright protections have expired, or works that were ineligible for protection in the first place (facts, ideas, U.S. federal government materials, etc.).
- The copyright holder has already granted a license for you to include their work. Sometimes, authors have already provided permission through grants such as Creative Commons licenses. For instance, this is a photo of a hot air balloon that can be used for any purpose as long as you attribute the author because it has a Creative Commons Attribution, or CC BY license, applied to it.
- Publishing the content would be fair use. Fair use—which is meant to encourage teaching, research, scholarship, criticism, and parody—allows you to exercise the otherwise-exclusive rights of the copyright holder (distribution, creating adaptations, etc.) without having to seek the copyright holder’s permission. For a use to be fair, though, you have to consider four factors that collectively weigh in favor of “fair use.” Records of your fair use analysis—which you can create by filling out a checklist—can be very helpful to have on hand if there are ever questions about your reasoning or use.
If you can answer "yes" to any of these questions, skip to Step 3.
Remember: Attribution is not the same as permission! Even if you cite your sources (which, of course, you should!), this doesn’t mean you have permission to include the excerpts from them in the first place. And, if you’re linking to an authorized (e.g. not illegally-posted) source, it’s always fine (at least in the U.S.!) to link to the content online rather than including the item itself.
If you couldn’t answer “yes” to anything in Step 1, you’ll need to seek the copyright holder’s permission to include the work or excerpt. (In fact, as a matter of policy, a publisher of your work may require express permission even if you, personally, believe the use would be fair.)
Obtaining permission can take a long time, so plan in advance. You’ll need to research and locate the copyright holder and then ask, in writing, for permission covering all your intended uses. Here are some useful sample permission request letters:
- University of Texas Libraries: Template letter for requesting permission
- George Washington University Library: Sample permission letter
- UCLA Library: Sample permission letter
Remember: A copyright holder’s silence is not permission. If you do not hear back in response to your request, you are now faced with a question of risk assessment, and whether to keep seeking permission or embrace the likelihood (or not) of the rights holder challenging your use down the road. In some of these situations, you may ultimately decide to limit your use further, or use a different work entirely—but you’ll need to make a decision one way or the other.
Additionally, while copyright protects copyright holders’ property rights in their works, privacy law protects the interests of people who are the subjects of those works. Privacy rights in scholarship most often arise if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. But, they expire at death—meaning, you can’t be liable for disclosing private facts about a person no longer living.
There are typically two additional important defenses to claims for invasion of privacy: newsworthiness and permission. If the material you wish to include reveals private facts that are of public interest or concern (which your scholarship may be), or if the person who is the subject of the information has given you permission to include it (which you may have obtained), then an invasion of privacy claim should not be sustainable.
Publicity rights are also tied to the subject (i.e. person) who is depicted in the work. As with privacy laws, there is no generally-applicable rule across U.S. jurisdictions. If a state recognizes the "right of publicity," such laws typically prevent unauthorized commercial use of an individual’s name, likeness, or personal attributes. Unlike privacy rights, publicity rights usually survive an individual's death, such that a person's estate may enforce them even if the person is no longer alive. Further, remember that the right of publicity is a protection independent from copyright. Thus, even if photographs of a famous historical figure may be in the public domain, that person's estate may still choose to enforce publicity rights against unauthorized commercial appropriation of their likeness.
Remember, the important foundation of and thus limitation on publicity rights: They are typically intended to prevent unauthorized commercial use of one's identity. Thus, they are often inapplicable unless you collect royalties or publish a book.
You may want to evaluate how or whether to publish certain materials digitally if sharing such materials could lead to exploitation of people, resources, or knowledge. For example, you may determine not to publish materials if there is substantial concern that disclosure of geographic locations or persons could put the materials at those sites or particular individuals at risk. Alternatively, perhaps your scholarship could threaten the safety of individuals who could be punished for having spoken out against various regimes. These are concerns and precautions to discuss with faculty in your department, and in reference to the publishing ethics and norms of your discipline.
Now that your work is complete, you have some decisions to make about how you want to share your work and manage your own copyright.
Should you register your copyright with the U.S. Copyright Office? As a Berkeley faculty member or student, in most cases, you automatically own the copyright in your scholarship. However, registering copyright in your work offers certain distinct advantages: It provides public record that you are indeed the author and owner, and also enables greater enforcement of your rights against infringers or plagiarists. Of course, if you are going to be assigning your copyright to, say, a journal publisher, it's not necessary for you to register anything. This question is really most pertinent if you're self-publishing or creating digital projects online.
Licensing Beyond Fair Use
Do you want to license your work beyond fair use? As with any other copyrighted work, other scholars can make fair uses of your creation in their own research. You can also decide to license your work beyond what fair use allows by applying a Creative Commons license to it. There may be publisher or discipline-specific reasons to decide to—or not to—license your work. And again, if your publishing agreement is assigning copyright to your publisher, then the agreement itself will likely govern the usage rights of others—so read that agreement closely.
What rights, if any, should you negotiate with your publisher to retain? On the Managing Your Copyrights page, we discuss the issues surrounding negotiating publishing agreements so that, where possible, you retain certain usage rights for yourself or others that are important to you.
For even more information, check out our Copyright & Digital Publishing guide that digs deep on all of these steps.
You can also contact us at firstname.lastname@example.org!