To avoid infringement, it’s important to understand the basics of copyright law. The primary act regulating copyright in the United States is the 1976 Copyright Act and its subsequent amendments. Together they form Title 17 of the United States Code.

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What Is Copyright Law?

At its core, copyright law grants exclusive rights to the work’s owner, such as:

  • the right to create new copies of the work,
  • the right to distribute them as the owner sees fit, with or without charge,
  • the right to create derivative works, and
  • the right to perform the work publicly.

The most important aspect of copyright is that it applies to all works, regardless of whether they are published or not. Therefore, unless a work is specifically stated to be in the public domain, you should always assume that it is protected by copyright and seek permission from the rights-holder to use it. Without their permission, you will infringe upon the copyright unless the use of the protected work qualifies as “fair use.”

What Is Fair Use?

Fair use is one of the most misunderstood provisions of Title 17. It is specifically designed to limit copyright for the purposes of criticism, commentary, news reporting, teaching, scholarship and research. In order to claim a given application as fair use of a protected work, four factors need to be taken into account:

  • the purpose for which the work is used,
  • the nature of the work,
  • the portion of the work used, and
  • the effect of the use on the potential market or value of the protected work.

In general it’s only possible to claim fair use if only small portions of the work are used for non-commercial purposes, and it does not significantly affect the copyright holder’s ability to sell the work. In other words, fair use isn’t a provision that allows you to deflect all charges of copyright infringement. There are a few exceptions, however. Works of parody are permitted to reference other works more broadly, and educators also have more leeway when it comes to copyright restrictions.

What Isn’t Protected by Copyright Law?

Of course, not everything is subject to the protection of the law. In order to receive copyright protection, a given work has to show at least a minimal level of creativity in order to be a protected expression of original thought. For example: facts and other raw data cannot be protected, however, journalism surrounding those facts can. In general, this also applies to geometric shapes and words—though you should tread carefully here, as certain symbols, shapes, words and phrases may be registered under trademark law. Furthermore, certain works that would normally be subject to protection can be ineligible for copyright. Examples include works created by federal employees as part of their duties (and that are not copyrighted by them separately) and those that have entered the public domain. A word of caution: You should always identify the source and copyright status of a given work, especially if you suspect it is in the public domain.

How to Avoid Infringement of a Copyright

Perhaps the best way to avoid copyright infringement is to create original content. As long as you avoid using other works directly (which would qualify as creating a “derivative work”), you will be the sole owner of all the rights to the finished product. However, if you use other works as sources of information and data, make sure to cite them as common courtesy and to avoid misrepresentation. In addition, you can always request to use specific works from the copyright owner--here’s a template for a Copyright Request so you can easily put it in writing. 

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