Do I Need Permission?

...

  1. Is the work protected by copyright?
  2. Does CUNY have a license to use the work or is it otherwise made freely available for educational use?
  3. Do you want to display, perform or transmit the work for educational purposes, including for distance learning?
  4. Does the proposed use constitute "fair use"?
  5. How do I get permission to use the work?

1. Is the work protected by copyright?

If the work is not copyrightable or is in the public domain, permission is not required to use the work. If the work IS copyrightable and is NOT in the public domain, go to Question 2.

Some examples of works not protected by copyright are:

  • facts and factual works, such as directories;
  • works that lack originality, including unoriginal reprints of public domain works;
  • most U.S. government works;
  • ideas, processes, methods and systems described in copyrighted works;
  • works that are specifically put into the public domain by their authors or the owner of the copyright, such as freeware; and
  • works in the public domain.

The following chart can help determine whether the work is in the public domain: Copyright Term and the Public Domain in the United States, by Peter Hirtle of Cornell University Library

The Copyright Office offers several resources for searching copyright, including on-line searches and Circular 22: How to Investigate the Copyright Status of a Work <pdf> to assist copyright research.

Back to Top


2. Does CUNY have a license to use the work or is it otherwise made freely available for educational use?

CUNY Licenses

CUNY has licenses with many providers of on-line databases of academic journals, news articles, images, etc. These databases may be accessed from the E-Journals and Reference Databases page of the CUNY Office of Library Services web site on cuny.edu. Your college library may also have licenses for other databases, such as the image database ARTstor, that aren't available CUNY-wide.

Some licenses allow educational uses such as making copies for classroom use and linking directly to the article for educational purposes. If CUNY has a license for the work that covers your proposed use, no further authorization is required. If your use is NOT covered, go to question 3.

CUNY also has licenses with ASCAP, BMI and SESAC, performing rights organizations which license and distribute royalties for the nondramatic public performances of the copyrighted musical works of their members. CUNY's licenses permit the University community to perform music from the organizations' catalogues, including such uses as dance performances, concerts, and student club events. Other uses of music, such as college radio broadcasts and webcasts, dramatic music performances (opera, musicals, etc.), and making copies of or re-recording existing records, tapes and CDs, may require different and/or additional licenses.

Works Freely Available for Educational Use

Many online sources provide visual images, music and books that may generally be used freely and without further authorization for non-profit educational purposes. Some examples are:

AICT - Art Images for College Teaching is a database of art and architectural photographs by art historian and photographer Allan T. Kohl. Images may be used by academic institutions freely and without further authorization in conjunction with educational activities such as teaching, research, and scholarly publication.

The Creative Commons search tool can help you find music, image and media works that are available for use under a Creative Commons license.

Digital Imaging Project consists of art historic images of sculpture and architecture from pre-historic to post-modern, by Mary Ann Sullivan, Bluffton College. Images may be used freely for personal or educational purposes.

Flickr has a group pool of high quality photos that are free to use under Creative Commons licenses.

Free Music Archive and the Creative Commons Legal Music for Videos page are sources for music files.

The Library of Congress Digital Collections include print, image, music and audio-visual materials.

Except for works under copyright, Metropolitan Museum of Art permits schools to put unaltered images or text from the Museum's website on a file server at the school if electronic distribution is of limited term to the school only, the images remain unaltered, all of the accompanying caption information is included without alteration, and the citation includes the URL "www.metmuseum.org."

Project Gutenberg has been providing free ebooks since 1971.  Another source for free online books is the Online Books Page hosted by the University of Pennsylvania Libraries.

U.S. Government Image Libraries include thousands of public domain photographs of everything from fish to firefighters.

WorldImages provides access to the California State University IMAGE Project. Its images may be freely used for non-profit educational purposes.

Back to Top


3. Do you want to display, perform or transmit the work for educational purposes, including for distance learning?

The Copyright Act exempts certain educational uses from liability for infringement. These are bright-line rules. If your proposed use meets these requirements, permission is not required to use the work. If your proposed use does NOT fall within any of these exemptions, go to Question 4 to see if the general fair use provisions apply.

Use in Face-to-Face Teaching (Sec. 110(1) of the Copyright Act)

Who: Teachers and students at nonprofit educational institutions

What: Perform or display copyrighted works, including showing lawfully made copies of movies and videos, playing music, performing plays, showing art works, etc. in the course of face-to-face teaching in a classroom.

Excludes: Photocopying of materials for classroom use, making of course packs, on-line uses, or any other reproduction, distribution or making of derivative works.  See below and refer to Question 4 for these uses.

Electronic Transmission of certain works [TEACH Act] (Sec. 110(2) of the Copyright Act)

Who: Accredited nonprofit educational institutions

What: Teachers and students may transmit (e.g., via the internet):

  • the performance of ALL of a non-dramatic literary or musical work (poetry & short story readings, all music other than opera, musicals and music videos)/li>
  • REASONABLE AND LIMITED PORTIONS of any other performance (includes all audiovisual works, plays, opera, musicals and other dramatic musical works)
  • displays of any work in AMOUNTS COMPARABLE TO TYPICAL FACE-TO-FACE displays (includes photographs and other still images)

Excludes:

  • works produced or marketed primarily for in-class use in the digital distance education market;;
  • works the instructor knows or has reason to believe were not lawfully made or acquired;
  • textbooks, course packs and other materials in any media typically purchased by students for their independent use.

Additional Conditions: The performance or display must be:

  • A regular part of a systematic mediated instructional activity;
  • Made by, at the direction of, or under the supervision of the instructor;
  • Directly related and of material assistance to the teaching content; and
  • For and technologically limited to students enrolled in the class.

CUNY must:

  • Have policies and provide information about, and give notice that the materials used may be protected by, copyright; /li>
  • Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session and further distributing them;
  • Not interfere with technological measures taken by copyright owners that prevent retention and distribution.

In a nutshell: The TEACH Act is intended to cover classroom-type instruction delivered on-line. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. For these uses, the instructor must continue to rely on the principals of fair use.

Additional resources on the TEACH Act:

TEACH Act Toolkit - A joint project of the North Carolina State University Libraries, Office of Legal Affairs and DELTA

The TEACH Act - A description of the law and checklist from The Copyright Crash Course at the University of Texas

Back to Top


4. Does the proposed use constitute "fair use"?

Section 107 provides that the fair use of copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether a use is fair, four factors must be considered. A fair use analysis involves balancing the four factors. If the weight of the factors leans towards "favorable to fair use," then permission is not required. If the weight of the factors leans towards "unfavorable to fair use," then the use is not likely to be considered fair use and permission from the copyright owner should be obtained.

Conducting a fair use analysis can seem complicated.  The links at the end of this section go to web sites with fair use guidelines for specific situations faced by educators and may be helpful to you.
If after conducting a fair use analysis you think that permission is required, go to Question 5.

FACTOR 1 - Purpose and Character of the use

Favorable to Fair Use
Unfavorable to Fair Use
Teaching Intent is to derive a commercial benefit
Scholarship
Research
Non-profit use
Personal use

 

NOTE: In general, "transformative" uses are likely to be fair.  These are uses such as parody, criticism, commentary, and news reporting that repurpose or recontextualize the copyrighted material to present it to a new audience for a different purpose than that for which the material was originally intended.  For example, use by a faculty member of clips of popular media for purposes of illustration or commentary within the context of a course is likely to be transformative.

FACTOR 2 - Nature of the copyrighted work

Favorable to Fair Use Little Effect

Unfavorable to Fair Use

Factual Mixture of factual and imaginative

Imaginative

Published   Unpublished
   

Consumable material, such as workbooks and answer sheets

 

FACTOR 3 - Amount and Substantiality of portion used

Favorable to Fair Use Unfavorable to Fair Use
Small amount relative to the entire work More than a small amount
Amount necessary to accomplish a transformative purpose More than the amount necessary to accomplish a transformative purpose

 

NOTE: There is no "percentage" rule in the law regarding how much of a work is too much.  However, in Cambridge University Press v. Becker (the "Georgia State Case"), the judge articulated a standard for determining a fair amount of nonfiction educational text that could be posted on e-reserves for non-commercial educational use.  She stated that use of no more than 10% of a text that is not divided into chapters, or has fewer than 10 chapters would be fair, as would use of one chapter of a text that has 10 or more chapters.  This is true even if a license for digital copies is readily available.  Although this case was decided in the 11th Circuit and New York courts do not have to follow it, it nevertheless creates a reasoned standard and helpful guidance for non-transformative "mirror" copying of nonfiction educational texts.

Note that the 10%/1 chapter formula is not a rule; it may still be a fair use to exceed these amounts in some situations involving nonfiction educational texts, particularly if the other three factors weigh in favor of fair use.

Note also that the Georgia State Case does not apply to non-textual media, nor was it a case involving making transformative uses of works originally intended for another audience and a different purpose.  In these cases, use of a large portion or even an entire work might weigh in favor of fair use if (1) the use transformed the work by using it for a broadly beneficial purpose different from that of the original and (2) the material taken was appropriate in kind and amount, considering the nature of the copyrighted work and of the use.

FACTOR 4 - Effect on the potential market for the work

Favorable to Fair Use Unfavorable to Fair Use
Original is out of print Use substitutes for purchase of the original
License is not readily available at a reasonable price in the format needed Use avoids payment in an established permissions market for the type of license needed
Copyright owner cannot be found or is nonresponsive  

 

NOTE: Courts have ruled that this factor cannot convert an otherwise fair use to an infringing use. If, after evaluation of the first 3 factors, the proposed use is favorable to fair use the analysis ends and the use is fair. On the other hand, if the proposed use is tipping toward infringement, or there is a "tie," this factor should be considered.
This chart is adapted from The Copyright Crash Course copyright 2001, 2012 Georgia K. Harper.

Other considerations that support a finding of fair use:

  • Access to the material is limited to students who are enrolled in the class, and then only for the term of the course.
  • Students are reminded of the limitations of copyright laws and their rights and responsibilities with respect to the material.
  • There is a clear articulable nexus between the instructor's pedagogical purpose and the kind and amount of the material involved.

Additional Resources:

Fair Use Codes & Best Practices from the Center for Social Media at American University – includes best practices relating to academic and research libraries, documentary films, online videos, poetry, OpenCourseWare, dance-related materials, film/media studies and others.
Fair Use Rules of Thumb from the University of Texas - Fair use guidelines for using copyrighted works for coursepacks and reserves, digitizing image and audio/visual resources, creative uses, and research.
Visual Resources Association Intellectual Property Rights Committee - includes image collection guidelines and a "digital image rights computator" to help determine the rights in a particular image
Music Library Association Copyright for Music Librarians - includes MLA's guidelines on fair use, including reserve digital audio files

Back to Top


5. How do I get permission to use the work?

If your proposed use of a copyrighted work does not fall within any of the categories described earlier, you must obtain permission to use the copyrighted materials. Permission must be obtained from the copyright holder or the holder's agent.

Obtaining permission can take time. Submit requests as early as possible so that if your request is denied or the license fee is too high, you will have time to choose other materials or limit the use so that it qualifies for fair use.

Sample Permission Request Forms:

Textual Material

The copyright holder of a text is typically the author or publisher of the work. If you want permission to use a journal article or an excerpt from a book, one place to begin is by contacting the Copyright Clearance Center. CCC is the largest licensor of text reproduction rights in the world. It grants licenses for the reproduction and distribution of copyrighted materials in print and electronic formats throughout the world, including for classroom use, course packs (hard copy and electronic), reserves and distance learning.

If CCC doesn't handle the material for which you are seeking permission, or if you think you may be able to negotiate a better deal through a direct contact, you should contact the copyright holder. You can typically find the name of the copyright holder on the page with the copyright notice. The following resources should help you in finding and contacting the correct copyright holder:

The Authors Registry handles copyright permissions and royalties for many freelance writers, writers' organizations and literary agencies.

Publication Rights Clearinghouse represents the National Writers Union to collect royalties for freelance writers.

The WATCH File (Writers, Artists, and Their Copyright Holders) is a database containing primarily the names and addresses of copyright holders or contact persons for authors and artists whose archives are housed, in whole or in part, in libraries and archives in North America and the United Kingdom. WATCH is a joint project of the Harry Ransom Humanities Research Center at The University of Texas at Austin and the University of Reading Library, Reading, England.

Other Copyrightable Works

Some resources for seeking permission to use other types of copyrighted works are:

Comics & Cartoons

Film & TV

Contact the movie studio or television station.

MGM Clip & Still Licensing. The FAQs on this site give a good description of the permissions that may be required in addition to that of the studio (e.g., actor, director, writer, stunt person, etc.)

Sony Pictures Entertainment Film Clip & Still Licensing. Handles licensing of materials (feature film clips, stills, posters, dialogue, etc.) owned or controlled by Sony Pictures Entertainment or its companies Columbia Pictures, TriStar Pictures, Screen Gems, Sony Pictures Classics and Columbia TriStar Home Entertainment.

20th Century-Fox Clip Licensing Department: (310) 369-3605.

Universal Studios Media Licensing

Warner Bros Clip & Still Licensing Department. Handles licensing of materials from Warner Bros. Entertainment Inc., Turner Entertainment Co., Castle Rock Entertainment, and Hanna Barbera Feature, Television and animation libraries

Swank Motion Pictures issues public performances licenses to educational institutions for many popular and classic films.

Image Libraries

Music

Contact the publisher. You can obtain publisher information at the on-line databases of these performing rights organizations:

Theatrical Rights

Rachel Durkin, Manager of the Performing Arts Center at the University of Texas, Austin, has written a helpful article on Obtaining Rights to Perform a Play or Musical.

The major play/musical publishing houses are:

Visual Art

Artists Rights Society represents the intellectual property rights interests of over 30,000 visual artists and estates of visual artists from around the world (painters, sculptors, photographers, architects and others).

Visual Artists and Galleries Association, Inc. (VAGA) is an artists' rights organization and copyright collective representing reproduction rights for approximately 500 American artists and, through agreements with affiliated organizations in other countries, thousands of foreign artists worldwide.

Back to Top