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Office of General Counsel

Copyrighted Materials

Members of the Clemson community, and especially faculty members, often have occasion to duplicate or make copies of copyrighted works for use in their teaching or research. While generally these kinds of educational uses do not constitute a violation of federal copyright laws, there are some specific guidelines that have been mutually negotiated and agreed upon by educators (represented by the American Council on Education) and publishers, which set forth clear guidance on what is and is not appropriate duplication of a copyrighted work. There are three ways to comply with copyright law when using the work of others:

  • Determine whether the work is protected by copyright. Some works are not protected by copyright.
  • Qualify for "fair use" of work. See below.
  • Obtain permission from the copyright holder, which may take time and require fees or royalties.

1. Determination of Whether Work is Protected by Copyright

It is important to realize that all copyrighted work is protected from unauthorized use or duplication. Prior to March 1, 1989, any book, periodical, poem, film, recording, photograph, chart or picture bearing the distinctive “© “ symbol or the word “Copyright” has complied with U.S. copyright law and this means that any subsequent user has been “put on notice” that the work cannot be reproduced without the permission of the copyright holder. Today, copyright protection is automatic, so no registration, inclusion of a copyright symbol, or notice is necessary anymore. However, the copyright symbol serves as a useful indicator that the copyright holder cares about his or her copyright. There are stiff penalties for violations of copyright law and unauthorized use of a work usually results in fines in excess of $5,000, plus attorneys’ fees. Fortunately, in the higher education context, it is relatively easy to avoid copyright infringement violations by adhering to the “Fair Use Guidelines” mutually agreed upon by the U.S. publishing industry. The Guidelines may be viewed in the section below and are fairly self-explanatory. A faculty member or student may use copyrighted materials consistent with the Guidelines and will not be prosecuted for infringement as a result.

2. "Fair Use Guidelines" for Duplicating Copyrighted Works for Educational Purposes

There are four fair use factors that can be assessed to determine whether the use of the copyrighted material would be considered fair use:

  • What is the character of the use?
    • If Educational, it favors fair use.
  • What is the nature of the work to be used?
    • If the copyrighted work to be used is fact or published, then it favors fair use.
  • How much of the work will be used?
    • A small amount favors fair use. See Sections I, II, and the definitions.
  • What effect would this use have on the market or the original or for permissions if the use were widespread? (Meaning, if the use were widespread, and it were not fair use, would the copyright owner be losing money?)

If balancing whether work used is considered fair use and one of the factors tips in the other direction, it may favor the seeking of permission.

I. Single Copying for Teachers

A single copy may be made of any of the following by or for a single teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

A. A single chapter from a book;
B. A single article from a periodical or newspaper;
C. A short story, short essay or short poem, whether or not from a collective work;
D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:

A. The copying meets the tests of brevity and spontaneity as defined below; and,
B. Meets the cumulative effect test as defined below; and,
C. Each copy includes a notice of copyright and the appropriate citations and attributions.

Definitions

"Brevity"

i. Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages; or, (b) from a longer poem, an excerpt of not more than 250 words.

ii. Prose: (a) Either a complete article, story or essay of less than 2,500 words or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.

(Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)

iii. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

iv. Obtain permission for materials that will be used repeatedly by the same instructor for the same class.

"Special Works"

Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience, fall short of 2,500 words in their entirety. Paragraph "ii" above, notwithstanding such "special works," may not be reproduced in their entirety; however, an excerpt comprising not more than 10% of the words found in the text thereof  may be reproduced.

"Spontaneity"

i. The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

"Cumulative Effect"

i. The copying of the material is for only one course in the school which the copies are made.

ii. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

iii. There shall not be more than nine instances of such multiple copying for one course during one class term.

The limitations stated in "i" and "ii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.

Prohibitions as to "I" and "II" above:

Notwithstanding any of the above, the following shall be prohibited:

i. Copying shall not be used to create or replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefore are accumulated or reproduced and used separately.

ii. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

Copying shall not:

i. substitute for the purchase of books, publishers' reprints or periodicals;

ii. be directed by higher authority;

iii. be repeated with respect to the same item by the same teacher from term to term.

No charge for single copies shall be made to the student beyond the actual cost of the photocopying.

3. Permission from the Copyright Holder

There are some circumstances where the uses outlined in the Guidelines are not applicable or adequate for a proposed use. In those cases, the only way to use the copyrighted work without incurring legal liability is to obtain the permission of the copyright owner in advance. The owner is not always easy to determine and is frequently the publisher and not the author/artist. Our suggestion is to send a letter requesting permission to the publisher of the work (see sample letter at end of this section). The letter asks that it be forwarded to the copyright owner if the owner is someone other than the publisher of the work. Our experience is that publishers, authors and artists are generally very generous in granting permission to use their work in an educational context.

From time to time, situations arise that are not adequately addressed by either the Fair Use Guidelines or obtaining permission of the copyright owner. In those instances, we encourage faculty, staff and students to consult with an attorney in the Office of General Counsel to ensure that no unnecessary liability is being incurred on the part of the individual.

Agreed March 19, 1976
Ad Hoc Committee on Copyright Law Revision
By Sheldon Elliot Steinbach

Author-Publisher Group
Author League of America
By Irwin Karp, Counsel

Association of American Publishers, Inc.
By Alexander C. Hoffman
Chairman, Copyright Committee

Sample Letter Requesting Permission to Use Copyrighted Work

December 30, 2005

John Q. Publisher
Publishers & Company
New York, NY 10101

Dear Mr. Publisher:

I am a faculty member/student/employee of Clemson University and I would like permission to duplicate the following work:

Author/Artist Lawrence M. Friedman

Title of Work: "A History of American Law" Copyright: 1973

Material to be duplicated: pp. 27-91; pp. 295-323

Number of copies: 45

Form of distribution: Inclusion in handout of supplemental readings

Type of reprint: Photocopy

The material described above will be used as supplemental reading for a course on U.S. Legal History to be offered to undergraduate students at Clemson.

If you agree, please sign where indicated below and return this letter in the self-addressed, stamped envelope provided. If you are not the owner of the copyright in this work, I would be grateful if you would forward this letter to the owner.

Sincerely,

Professor T. G. Clemson
Clemson University

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