Copyright Guide for Academic Use: Is Work Protected by Copyright?

The first question in determining whether you can use a work that may be copyrighted is whether the work actually is the type protected by copyright.  If it is not, then you may be able to use the work and not run afoul of copyright law.  To determine this, consider:

• Is it the type of work protected by the Copyright Act?
• Is it the type of work excluded from protection under the Copyright Act?
• If it is the type of work protected by the Copyright Act, has it fallen into the public domain?

To help answer these questions, see the resources on this page.

The Copyright Act does not protect all works.  It covers original works of authorship fixed in any tangible medium of expression, including, but not limited to, literary, musical, dramatic, pantomime, choreographic, pictorial, graphic, sculptural, motion picture, audiovisual, sound recording, and architectural works.  17 U.S.C. § 102.  

If the work you want to use does not fit in this definition, for example if the work is not original or fixed, then you may be able to use it.  Copyright does not protect ideas standing alone, it only protects the expression of ideas.  Copyright also does not protect facts alone, as those are not original, but may protect the original expression of facts.

Resources:

• For the statutory sections discussing what is covered by copyright, see Chapter 1 of the Copyright Act, Subject Matter and Scope of Copyright.
• For the general definition of what is covered by copyright, see 17 U.S.C. § 102, Subject Matter of Copyright: In General.
• For a list of the rights of the copyright owner, see 17 U.S.C. § 106, Exclusive Rights in Copyrighted Works.
• For a Copyright Office explanation of what is protectable under copyright, see Circular 1 Copyright Basics and Circular 33 Works Not Protected by Copyright.
• For a discussion of works outside the scope of copyright, see Kenneth Crews, Copyright Law for Librarians and Educators, Fourth Edition, Chapter 3, KF 2995 .C74 2020.

Particular types of works excluded from copyright protection:

• Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which they are described, explained, illustrated, or embodied in such work.  See 17 U.S.C. § 102(b); 37 C.F.R. § 202.1; Circular 33 Works Not Protected by Copyright.
• Words and short phrases, such as names, titles, and slogans.  See 37 C.F.R. § 202.1; Circular 33 Works Not Protected by Copyright.
• Familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring.  See 37 C.F.R. § 202.1;  Circular 33 Works Not Protected by Copyright.
• Mere listing of ingredients or contents.  See 37 C.F.R. § 202.1; Circular 33 Works Not Protected by Copyright.
• Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not actually convey information.  See 37 C.F.R. § 202.1; Circular 33 Works Not Protected by Copyright.
• Works consisting of information that is common property without original authorship, such as: calendars, height and weight charts, tape measures, rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.  37 C.F.R. § 202.1.
• Works of the United States federal government. 17 U.S.C. § 105.

Resources:

• Subject matter of copyright: In general, 17 U.S.C. § 102.
• Material not subject to copyright, 37 C.F.R. § 202.1.
• Subject matter of copyright: United States Government works, 17 U.S.C. § 105.
• For a general discussion from the Copyright Office of what is not covered by copyright, see Circular 1 Copyright Basics and Circular 33 Works Not Protected by Copyright.

Even if a work may have been protected under copyright, it can fall in the public domain:

• after its term expires;
• or if it was published before January 1, 1978 without a copyright notice or with inadequate copyright notice.

Resources:

• For information on copyright term, see 17 U.S.C. Chapter 3 - Duration of Copyright; Circular 15a Duration of Copyright. 
• For information on works falling in the public domain because they were published before January 1, 1978 without proper copyright notice, see 37 C.F.R. 202.2; Circular 3 Copyright Notice. 
• Is It Protected by Copyright? -- Handy tool for determining copyright protection from the American Library Association Office for Information Technology Policy.
• Copyright Term and Public Domain in the United States -- Another handy tool for determining when term expires from Cornell University's website.
• Public Domain Day -- A list of works falling into the public domain every January 1 from Duke Law Center for the Study of the Public Domain.  Website includes an archive of past years.