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Copyright Basics

This guide contains information about using copyrighted materials for instruction.

If you know that the work you wish to use (all or some) is protected by copyright, how do you find out whether your proposed use is allowed or whether you must get permission from the copyright holder?  If you think you do need permission, how do you find out who to ask? 

Keeping in mind that the resources collected here are generally geared for the academic higher educational setting, you can explore by

•  Type of Work

Text [see extensive discussion in copyright basics]

Music/Theater (Dramatic Arts)/Film


•  Type of Use

Teaching: Face-To-Face


Fair Use


Permission [Obtaining]

Copyright law is very supportive of performances or displays of copyrighted works "by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made." Section 110(1)

This means that any type and any amount of a copyrighted work can be displayed in the traditional class setting (images, text, other static works) and/or performed in that class setting (such as an entire movie), with the only caveat being that the movie/audiovisual work must have been lawfully made, i.e., not a bootleg or pirated copy.  Note that the requirement is "lawfully made."  A 'fair use' copy of a work is lawfully made. A purchased, loaned or rented copy is lawfully made and qualifies under this provision unless the owner of the physical copy has entered into a specific agreement that governs how and where the work can be used.  Note also that under this provision the showing (performance) of a work must be for educational purposes, not, for example, entertainment.  

Section 110(1) thus enables students to watch movies, live experiments, hear lectures, view materials and listen to music.  They left the classroom with new ideas, facts, memories, and their notes. All lawful uses not requiring permission of the copyright holder.  Why so easy?  Because it is nonprofit educational use. Because there is no lost market.  No copies are being made, except for perhaps a single overhead slide or projector copy (fair use); students have no copies of the works seen or heard and the law recognizes that such public performances and displays, under these specific circumstances, are so beneficial as to outweigh any harm to a market for the works used.
IF:                                                                  THEN:                                                                      
A teacher or student                                     DO NOT need copyright permission
In a physical classroom                                 to perform (movie, AV, music, plays)
For an educational purpose                           to display (show photo, image, text, etc.)
At a nonprofit educational                             ANY work
institution                                                     ALL of the work (no pirated copies)

A significant percentage of university courses are now taught online and/or have an online component. Logically, it would seem that whatever can be lawfully used in a traditional class setting should also be lawful to use in a university's access controlled online course settings, available only to students enrolled in that class.  Unfortunately, logic has little to do with the distinction and restrictions that copyright law makes between what can be used in a face-to-face setting as opposed to its online counterpart.

So, what are the copyright issues involved in using copyrighted materials in an online teaching course management system?  When can works be digitized?  How much can be used? Can a work be streamed? When is permission necessary?  Is linking ok?

First of all, "online teaching" is intended to refer to courses that are presented entirely online as well as courses that have both a face-to-face setting and an online component. For our purposes in examining copyright issues, the course does not have to be designated or identified as a "distance education" course (the Copyright Act never uses the term) or be offered only remotely; the online course simply has to be transmitting performances and/or displays of 3rd party copyrighted material as part of the educational activities of a nonprofit educational institution, such as LSU.  

Reminder: Educational uses are favored under the copyright act since they directly support copyright's Constitutional purpose of promoting progress of science and the useful arts.  Because of this, Congress crafted a number of exceptions to the copyright holder's exclusive rights that allow such uses without the need for prior permission from the copyright holder.

Unlike traditional classroom teaching, there are not any easy answers for online teaching uses; only complicated ones.  It is likely that the differences relate to the relative ease with which digital materials can be reproduced without any degradation in quality and widely disseminated via the internet.

When placing the copyrighted materials of others within an online course, there are basically three options:

1.  Comply with the requirements of the TEACH Act amendment to the copyright act [Section 110(2)];
2.  Determine whether your proposed use qualifies as a fair use; or
3.  Obtain permission from the copyright holder.

How Do I Decide Which Option To Use?

As in the classroom teaching of this site, I recommend trying the following process:
The Five-Step Approach to Analyzing Copyright Use Questions for Online Teaching

Note:  It is important that these questions be evaluated in chronicle order.
1.  Is the work copyrighted?  If not, no further analysis is needed and the work can be freely used. However, most works created or published in the 20th century remain protected by copyright; and works created after 1989 are not even required to display a copyright notice.  It is recommended that you review this section here. If it is or you are not sure, continue through the questions.

2.  Is the work covered by a license, such as those governing the library's electronic journals and databases or, accompanied by terms and conditions of use or a Creative Commons license?  

3.  Is there a specific provision in the copyright law that supports your proposed use? [Those commonly helpful in the academic setting are found in Section 108 (the library provisions) and Section 110 (the performance and display exceptions).

4.  Does the fair use provision of the copyright law support my proposed use?

5.  Do I need permission from the copyright holder for the use I propose?

The above is a brief summary of the 5 Steps to Analyzing a Copyright Use Question and operates as a reminder of the steps, not as a substitute for working through them.

Original art, photographs, images, drawings, illustrations, and so forth are all works fully protected by copyright as soon as they are fixed/created.  Like other types of copyrighted works, publication, registration and/or a copyright notice is not required for works created after 1989.

The particular characteristics of photographs and other similarly situated artwork present their own unique challenges with respect to copyright law, derivative works, transformative uses, and application of fair use.  For example, what constitutes "publication?"  Can you register an unpublished photo?  What is a derivative work and is it infringing?  Is it ever legal to start with someone else's copyrighted photo/image/art and alter 'enough' of it to make it your 'own' work? Does a copyright arise if an exact photo is taken of a public domain artwork?  When is a work so "substantially similar" to a previous work as to be infringing?  Can two people take the same picture of a publicly accessible view or building?  What are scenes a faire?  Is it an infringement of a building's architecture to take a photograph of it?  What is a 'fair use' of a photo?

You can find answers to these questions as well as other helpful information in the following resources:

•  Copyright/Copywrong A Study of Copyright Law by the Picture Archive Council of America

This ppt presentation is a very good walk-through of basic copyright law specifically tailored to photographs and images.  It includes a discussion of 'substantial similarity' with examples, including visuals, of specific court decisions.

•  The American Society of Media Photographers (ASMP) has a very good copyright guidelicensing guideFAQ on copyright law, and definition of published and unpublished.

•  When Is An Image A Derivative Work?

“Whenever you take an existing image and modify it to create a different image, you are making a "derivative work." For example, you might composite several images in the darkroom, or you might use Photoshop’s tools to distort a digital photo. Another kind of derivative is the compilation, such as a coffee-table book. In law, it does not matter whether the change is great or small, or whether the result is recognizably like the original; what matters is whether your creative process began with an existing image.”

•  Scenes a Faire:  Principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.  Wikipedia

•  Pros and Cons of Registering Your Art

•  While the appearance of objects in the public domain or as they occur in nature is not protected by copyright, (Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13:03[B][2][b] (1999)), building designs after December 1, 1990 are protected.  The Digital Media Licensing Association (DMLA), formerly known as PACA, offers a Special Releases list "of properties and objects that may cause problems if shown photographically" although it appears to have been last updated in 2004

•  Fair Use: Code of Best Practices in Fair Use in the Visual Arts

This Code, developed in the past few years, presents five practices/principles intended to reflect shared respected practices.  Of particular relevance for teaching are principles No. 2 Teaching About Art and No. 3 Making Art.

•  Fair Use or Infringement from the Graphic Artists Guild

•  Images Available For Use (either public domain or no restrictions)

     - Public Domain Images

     - Google Advanced Image Search [define 'usage rights]

     - Flickr Commons

     - Pixabay

     - openclipart

     - Free Clip Art and Image Digest

Figuring out when you can use music, even in a nonprofit educational setting like LSU, is no easy matter.  There are a number of ways that all or part of a musical composition might used or shared and the same can be said of a particular sound recording.  Outside of a limited face-to-face classroom exemption, most uses of music are generally viewed as requiring a license and/or permission from one or more entities in control of particular uses and specific copyrighted musical materials.

First, consider that there are at least two separate copyrightable items that may be copyrighted:

  1. The musical composition, that is, the sequence of musical notes, including rhythm, melody, and harmony plus the lyrics and
  2. The sound recording, which covers the rendition or performance of the musical composition; the particular combination of sounds recorded and expressed in the physical medium.

The musical composition – the music and the lyrics – can have multiple authors and, thus, multiple copyright holders.  Typically, the music publisher controls (via an agreement or a © transfer) the copyright in the musical composition. (The Harry Fox Agency specifically represents music publishers so check here first. Another way to find a music publisher is to check a PRO -performing rights organizationmusic repetoire like BMI's music repertoire or ASCAP's ACE repertory (ASCAP's Clearance Express).  See also The Music Publishers Association, searching here.

[For a very informative article on basic music copyrights for a composer, as well as getting a good overview, see Now You Know Everything About Music Publishing… by Paul Resnikoff.

The sound recording also likely has multiple copyright holders including the vocalist, the musicians, the musical director or producer, the recording engineer, etc.  Usually any potential holders transfer their rights to the record company who then manages the copyright.

Using Music: The Reproduction, Distribution, and Performance Rights:

• If you want to reproduce © music, i.e., the music and/or lyrics, in print (like sheet music), you need a print license, usually from the publisher.

•  If you want to reproduce and distribute © music in physical formats - that is, you are going to perform the musical composition & distribute on cds, you need a mechanical license from the © owner or more likelythe Harry Fox Agency.

•  If you want to use a specific recording of a © work, you need a master license, usually from the record label who owns the specific recording;  if you wish to further distribute the specific recording, you also need a mechanical license, the Harry Fox Agency, again.  If the copyright holder of the underlying musical composition has not transferred copyright to the record label/producer, you will need to get permission from both the holder of the musical composition as well as the holder of the sound recording.

•  If you want to use the musical composition or the sound recording with a visual image(s), you need a synchronization license, from the music publisher.   Many U.S. publishers are represented, for purposes of a synchronization license by the Harry Fox Agency.  See HFA's eSynch.

•  If you are going to also pair the music or sound recording with a dramatic work, like a play, you need grand performance rights, from the © holder or the publisher.

•  If you want to publicly perform a © musical work or sound recording [e.g., you are a radio station, concert venue, business establishment), you need a performance license, usually from a performance rights organization (PRO), like ASCAPBMI, and SESAC.

•  If you are publicly performing digital music such as satellite radio, internet radio, cable TV music channels, and similar platforms for streaming digital sound recordings, you will need to pay statutory royalties, usually through SoundExchange.  Additionally, BMI has reached an agreement with Pandora over license rates, ending very lengthy litigation.



• The Harry Fox Agency

• Broadcast Music Inc. [BMI]: "A music performing rights organization." see BMI FAQs

• American Society of Composers, Authors, and Publishers. [ASCAP]

Music Copyright Information:

• BMI's Copyright information and BMI's Songwriters and Copyright page.

BMI's Copyright Short Subjects is excellent basic copyright law specific to music.

What Can You Use Without a License?

•  Use of Copyrighted Music on College and University Campuses

   A report from ACE, the American Council on Education

•  © C in a Circle - Exceptions To The Rule: When Unlicensed Uses of a Copyright Are Not Infringements:  This is a concise, accurate explanation of ten uses of © music that does not require permission and includes the educational exceptions such as face-to-face classroom settings and 'closed-circuit' transmissions that translate to online courses.  From BMI.

•  Legal Music for Videos from Creative Commons

•  Free Music Archive

•  Copyright For Music Librarians

•  The Ohio State University University Libraries Music Copyright Series

    in particular see Copyright Duration for musical compositions and sound recordings

Determining when permission is required to perform a play, who to ask for permission and what kind of rights are needed begins with a complete understanding of the play and the performance, including who your performers are (amateur vs. professional), the venue and the audience, the number of performances, and whether or not music is involved. 

To begin, if you and/or your students are performing any kind of work, including a play or a musical, as part of a course at LSU and only other students enrolled in the course are performing as well as viewing the performance, the copyright law (17 U.S.C. Section 110(1)) permits this without requiring any sort of license or performance fee.  Additionally, works that have entered the public domain, e.g., Shakespeare, are free to use.

Beyond that, you should assume that you need permission, most likely through a license, for a proposed public performance of a play, musical, or other theater performance.  The specifics of your production will dictate whether and how much this license will cost.  Keep in mind that licenses to publicly perform a play usually do not include copies of the script (or anything else) nor do they include a grand performance right as discussed under the Music Copyright section.

Here are some helpful resources:

•  Obtaining rights to produce a play or musical (Yale, part way down page adapationg of Rachel Durkin's original piece)

•  Obtaining Copyright Permissions: Theatre (libguides UMichigan Library)

•  Statement of Best Practices In Fair Use of Dance-Related Materials 

Sources of Licenses:

• Samuel French [appears to contain the Baker’s Plays] musical and non musical theater, especially the FAQ

• Dramatists Play Service (DPS), especially their FAQ

•  Rodgers & Hammerstein

•  Tams-Witmark Music Library

If the work to be used is covered by a license, i.e., a contract, then the terms of that license will govern all proposed uses.  That is to say, any uses potentially authorized by provisions in the Copyright Act, such as fair use, may not be available, if specifically excluded by the license.  The terms of the license agreement will govern instead.

This makes it very important that the terms of the license be reviewed carefully - whether you are responsible for negotiating and signing the license or whether you simply wish to access and/or use the works covered by the license.  Unless your work requires you to license materials for use by your employer and its authorized users, such as the licensed e-resources of a university library (see LSU Libraries E-Resources Terms and Conditions), you will most likely encounter licenses on the internet, most commonly click-through licenses, browse-wrap licenses, often presented as site "terms and conditions." 

Click-through licenses, that is those requiring an affirmative 'click' of the mouse on an "I Agree" box, are both ubiquitous and enforceable, whether you actually read the terms or not.  Browse-wrap licenses, usually designated as "Terms and Conditions" linked to a website are not uniformly enforceable.  Courts are divided on this and it often depends upon the particular facts of a situation.  You should proceed with caution and would be best served by assuming that these terms and conditions are enforceable. 

Both click-through and browse-wrap terms are non-negotiable.  The only option left to a user who wishes to access and/or use materials falling under these licenses, but who finds the terms unacceptable, is to forego the resource entirely.

Conversely, if you are authoring and making your own works available online, you should include your own terms and conditions.  Consider using a Creative Commons license - these licenses are recognized world-wide and you can tailor a license to your needs.

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