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Highlighted Resources

Fair Use Reference Guide 1.0
  » Table of Contents
  » Download the PDF

  » Copyright 101
  » Fair Use
  » Cease and Desist 101
  » DMCA § 512 Takedowns

Will Fair Use Survive?

Intellectual Property and Free Speech in the Online World (a report about online service providers and takedown notices)

Copyright Holders, Licensing & Permissions

People may run into questions about who holds a copyright in two common scenarios. First, if permission is necessary, then users have to try to figure out who holds a copyrighted work before they can ask permission to use it. Second, users may sometimes be contacted by copyright holders after they have already used a work.

Deciding Whether to Ask for Permission

It is not necessary to ask for permission for a fair use. Indeed, a major purpose of fair use is to protect critical commentary by not allowing owners to deny permission to quote or copy. However, in some instances, a user may want to seek permission, whether to be polite, to gain the approval of the original creator for the new project, to avoid risk when the user is unsure whether the use is really fair, or for other practical reasons.

In trying to decide whether or not to ask for permission, the user should consider whether the use is fair or otherwise permitted; whether she wants to risk the copyright holder's possible attempts to stop the use; and whether there are any third parties (publishers, employers, or insurers) who should also be consulted. Asking for and being denied permission doesn't affect the chances of a court finding a fair use, but it will bring the use to the attention of the copyright holder, who may then try to impose conditions. It may be appropriate to consult an attorney to decide whether a use is likely to be fair, or whether it is advisable to ask for permission.

Finding the Copyright Holder

If the user does ask for permission, the first step is to try to figure out who holds the copyright. While this is sometimes easy, for older or obscure works it can be one of the trickiest parts of using a copyrighted work. The original author may not hold the copyright because she has "assigned" the rights to someone else. Or, the copyright holder may have given permission ("licensed") the work to someone else (or multiple someone elses).

To try to track down who holds a copyright, users may search the Copyright Office's registration database. However, many works published since 1964, and many works published outside the US, are not in the database. There are a number of agencies that handle copyright clearance or permissions, or can refer users to copyright researchers.

More information on finding copyright holders:

Sometimes it is impossible to track down the copyright holder, or even find out if the work is still copyrighted. These is the problem of "orphan works" — created when Congress dispensed with notice and registration requirements. In 2006, Congress began considering legislation so that creators could use orphan works without fear of unreasonable copyright infringement penalties if the original copyright holder turns up later. Until orphan works legislation is passed, however, creators have to consider the risks and benefits of using such works.

Responding to Claims from Copyright Holders

Occasionally, there may seem to be something fishy about a copyright claim. Older works may be in the public domain, but some people still try to claim they hold a copyright to the work. Recently, for instance, the Woody Guthrie estate attempted to suppress distribution of a cartoon using "This Land Is Your Land" as the soundtrack. With a little investigation, the cartoonists' lawyers at EFF showed that the song was actually in the public domain.

So, the recipient of a cease and desist letter, or DMCA § 512 takedown notice, should carefully evaluate the letter or notice, and the validity of the claims, before taking action.

More information on assessing and responding to claims from copyright holders:

Below we discuss some common questions and misconceptions people have about holding copyrights.

Are works on the Internet public domain?

Not necessarily. While some old public domain works are available on the Internet, most works on the Internet have been created fairly recently and are still in copyright. These works are only in the public domain if their creators have explicitly put them in the public domain. Mere publication or distribution on the Internet does not put a work in the public domain.

What are Creative Commons and open source licenses?

Even if works are not in the public domain, it may be possible to distribute or re-use them if they have a Creative Commons, open source, or similar license. These licenses generally allow broader — but not necessarily absolute — rights to copy and distribute the work. For instance, Creative Commons licenses that include a "No Derivatives" term would forbid abridging or otherwise transforming the work — except, of course, within the contours of fair use. Creative Commons or open source licenses may also include a clause that permits reuses but requires them to be distributed with the same kind of licensing terms as the original work.

Who holds the copyright in a photograph?

The photographer, not the subject of the photo, generally holds the copyright. The subject may have a right to privacy relating to the photograph, though.