the center for language study resolving copyright issues for language faculty

THE CENTER FOR LANGUAGE STUDY

RESOLVING COPYRIGHT ISSUES FOR LANGUAGE FACULTY

The Answer to All Questions The Answer to All Questions Pertaining to Copyright and Pertaining to Copyright and the Scope of Protection ~the Scope of Protection ~

““IT DEPENDS”IT DEPENDS”

Role of the CLSRole of the CLS

Work with foreign language facultyWork with foreign language faculty

Assist them in preparing multimedia Assist them in preparing multimedia instructional materialsinstructional materials

Combine audio and video materials with Combine audio and video materials with photos and artwork photos and artwork

Some materials Some materials are original faculty are original faculty creationscreations

Most reproduce Most reproduce works created by works created by third partiesthird parties

CLS COPYRIGHT HANDBOOKCLS COPYRIGHT HANDBOOK

Obtaining copyright protection for Obtaining copyright protection for original faculty worksoriginal faculty works

Assisting faculty in using the Assisting faculty in using the materials of others in multimedia materials of others in multimedia presentationspresentations

WORKS CREATED BY WORKS CREATED BY LANGUAGE FACULTYLANGUAGE FACULTY

Copyright vests in Copyright vests in person who person who creates a work creates a work fixes it in a fixes it in a tangible mode of tangible mode of expressionexpression

Creator of a Work Does Not Always Creator of a Work Does Not Always Own the CopyrightOwn the Copyright

Work created during the ordinary Work created during the ordinary course of employmentcourse of employment

work made for hire owned by work made for hire owned by the employer, absent any the employer, absent any agreement to the contraryagreement to the contrary

Yale does not claim ownership of Yale does not claim ownership of scholarly worksscholarly works

Yale retains ownership of works:Yale retains ownership of works:

created as part of assigned created as part of assigned task; ortask; or

for which it has committed for which it has committed substantial university resourcessubstantial university resources

What if someone other than the What if someone other than the faculty member contributes faculty member contributes original material to the work?original material to the work?

that person owns copyright in this that person owns copyright in this contributioncontribution

faculty member must obtain faculty member must obtain assignment of copyright from assignment of copyright from creator of this contributioncreator of this contribution

ASSIGNMENT OF COPYRIGHT

FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby

acknowledged [INSERT NAME OF AUTHOR] ("Assignor"), located at [INSERT

ADDRESS OF AUTHOR], hereby irrevocably transfers and assigns to Yale

University, a Connecticut not-for-profit corporation (“Assignee”), located at 105 Wall

Street, New Haven, Connecticut 06520, its successors and assigns, in perpetuity,

all right, title, and interest, throughout the world, including any copyrights and

renewals or extensions thereto, in a work titled [INSERT TITLE AND/OR SHORT

DESCRIPTION OF WORK, TOGETHER WITH REGISTRATION NO. IF

REGISTERED IN THE U.S. COPYRIGHT OFFICE].

IN WITNESS THEREOF,

Assignor has duly executed this Agreement. Dated: ___________________________________ Name: [Print Name of Assignor]

ASSIGNMENT OF COPYRIGHT

FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby

acknowledged [INSERT NAME OF AUTHOR] ("Assignor"), located at [INSERT

ADDRESS OF AUTHOR], hereby irrevocably transfers and assigns to Yale

University, a Connecticut not-for-profit corporation (“Assignee”), located at 105 Wall

Street, New Haven, Connecticut 06520, its successors and assigns, in perpetuity,

all right, title, and interest, throughout the world, including any copyrights and

renewals or extensions thereto, in a work titled [INSERT TITLE AND/OR SHORT

DESCRIPTION OF WORK, TOGETHER WITH REGISTRATION NO. IF

REGISTERED IN THE U.S. COPYRIGHT OFFICE]. IN WITNESS THEREOF,

Assignor has duly executed this Agreement. Dated: ___________________________________ Name: [Print Name of Assignor]

hereby irrevocably transfers and

assigns to Yale

all right, title, and interest, throughout the world, including any copyrights and renewals or extensions thereto

Using name or likeness of a person in Using name or likeness of a person in original work may require permissionoriginal work may require permission

Right of privacy – right to be left aloneRight of privacy – right to be left alone

Right of publicity- right to control Right of publicity- right to control commercial exploitation of name or commercial exploitation of name or likeness of celebritylikeness of celebrity

Obtain release prior to using name or Obtain release prior to using name or likeness of person in projectlikeness of person in project

Obtain releases from persons appearing Obtain releases from persons appearing and speaking in videosand speaking in videos

Spanish project using video tapes of Spanish project using video tapes of interviews of Paraguayans discussing interviews of Paraguayans discussing prisons and domestic violence prisons and domestic violence

Hindi project producing video tape of Hindi project producing video tape of shopping trips in New York Cityshopping trips in New York City

Incidental appearance does not require Incidental appearance does not require releaserelease

RELEASE FORM

I authorize Yale University and those acting pursuant to its authority to:

a. Record my participation and appearance on video tape, audio tape, film, photograph or any other medium.

b. Use my name, likeness, voice and biographical material in connection with these recordings.

c. Exhibit or distribute such recording in whole or in part without restrictions or limitation for any educational or promotional purpose which Yale University, and those acting pursuant to its authority, deem appropriate.

Name: _______________________________________________ Address:______________________________________________ Phone No.:____________________________________________ Signature:_____________________________________________ Witness Signature:______________________________________ Parent/Guardian Signature (if under 18):_____________________

RELEASE FORM

I authorize Yale University and those acting pursuant to its authority to:

a. Record my participation and appearance on video tape, audio tape, film, photograph or any other medium.

b. Use my name, likeness, voice and biographical material in connection with these recordings.

c. Exhibit or distribute such recording in whole or in part without restrictions or limitation for any educational or promotional purpose which Yale University, and those acting pursuant to its authority, deem appropriate.

Name: _______________________________________________ Address:______________________________________________ Phone No.:____________________________________________ Signature:_____________________________________________ Witness Signature:______________________________________ Parent/Guardian Signature (if under 18):_____________________

Record my participation and appearance

Use my name, likeness, voice and

biographical material

Exhibit or distribute such recording . . . for

any educational or promotional purpose

Copyright NoticeCopyright Notice © © or “Copyright”or “Copyright” Year of publicationYear of publication Name of copyright ownerName of copyright owner

Faculty name or Yale UniversityFaculty name or Yale University

Register in U.S. Copyright OfficeRegister in U.S. Copyright Office Prerequisite for filing infringement Prerequisite for filing infringement

action action

USING THIRD PARTY MATERIALS USING THIRD PARTY MATERIALS

Create inventory listing each Create inventory listing each element of the presentationelement of the presentation

Identify parts of the materials Identify parts of the materials reproduced from other sourcesreproduced from other sources

Gentle Creature Vision Project

Permission Spreadsheet

ID No. Photos/Location SourcePermission

NeededPermission

RequestedPermission

Granted

P1Building with Obilisk/Part I, Preface,

Page 2

P2 Slide 1/St. Petersburg Tour

















Gentle Creature Vision Project

Permission Spreadsheet

ID No. Photos/Location SourcePermission

NeededPermission

RequestedPermission

Granted

P1 Building with Obilisk/Part I, Preface, Page 2


















Identify each element of Identify each element of the reproduced workthe reproduced work

Identify source

Determine whether Determine whether third party work is third party work is

copyrighted or in the copyrighted or in the public domainpublic domain

Determine whether permission is needed,

requested and obtained

If permission not obtained,consider risk incopying materials

Depends on whether copying of Depends on whether copying of materials is a “fair use”materials is a “fair use”

Good news – fair use offers Good news – fair use offers defense to claim of copyright defense to claim of copyright infringementinfringement

Bad news – defense is very Bad news – defense is very subjective in its applicationsubjective in its application

FACTORS FOR DETERMINING FAIR USEFACTORS FOR DETERMINING FAIR USE1. Purpose and character of the use1. Purpose and character of the use

whether commercial or for nonprofit educational whether commercial or for nonprofit educational purposes purposes

2. Nature of the copyrighted work 2. Nature of the copyrighted work 3. Amount of portion used in relation to copyrighted 3. Amount of portion used in relation to copyrighted

work as a whole work as a whole 4. Effect of use upon the potential market for or 4. Effect of use upon the potential market for or

value of the copyrighted work value of the copyrighted work

FACTORS FAVORING FAIR USEFACTORS FAVORING FAIR USE

purpose is for criticism, comment or purpose is for criticism, comment or teaching (including multiple copies for teaching (including multiple copies for classroom use) classroom use)

use for non-commercial purposes, use for non-commercial purposes, such as educational or nonprofit use such as educational or nonprofit use

not a substitute for purchasing copy not a substitute for purchasing copy of entire copyrighted work of entire copyrighted work

copied material identifies the author, copied material identifies the author, publisher, etc. publisher, etc.

copied work is out of print and copied work is out of print and otherwise unavailable otherwise unavailable

copyright owner could not be located copyright owner could not be located after a good faith search after a good faith search

PRACTICAL CONSIDERATIONS FOR PRACTICAL CONSIDERATIONS FOR USING WITHOUT PERMISISONUSING WITHOUT PERMISISON

Classroom materials often remain below Classroom materials often remain below radar screenradar screen

Materials may be so ephemeral as to be Materials may be so ephemeral as to be of less concernof less concern

Insufficient monetary interest in taking Insufficient monetary interest in taking action against copyingaction against copying

Different approach required when Different approach required when project is to be commercializedproject is to be commercialized

Permission becomes imperativePermission becomes imperative

Copyright owner has interest in Copyright owner has interest in sharing profits from sales of materials sharing profits from sales of materials

Example of Example of Jules et JimJules et Jim

Fair use is defined by courts in Fair use is defined by courts in infringement actionsinfringement actions

leads to conflicting resultsleads to conflicting results

Kinko’s Kinko’s Case (narrow application of fair Case (narrow application of fair use)use)

presumption that copying of works presumption that copying of works by copy shop for profit is by copy shop for profit is nevernever fair fair useuse

Pretty Woman Pretty Woman Case (broad application Case (broad application of fair use)of fair use)

Supreme Court expressly recognizes Supreme Court expressly recognizes educational copying as fair useeducational copying as fair use

rejected presumption against all rejected presumption against all commercial photocopyingcommercial photocopying

What to do in the face of conflicting What to do in the face of conflicting judicial decisionsjudicial decisions

1. Conservative – “bright line” test1. Conservative – “bright line” test

publishers and educators adopt publishers and educators adopt minimums as to permissible copying minimums as to permissible copying

line is drawn to exclude copying that line is drawn to exclude copying that is arguably fair useis arguably fair use

chilling effect on creation of chilling effect on creation of instructional materialsinstructional materials

Copyright Clearance CenterCopyright Clearance Center

Works to expand types of copying that Works to expand types of copying that require payment of a feerequire payment of a fee

Recent efforts at providing users of Recent efforts at providing users of Blackboard to pay CCC for permission Blackboard to pay CCC for permission to copy licensed materialsto copy licensed materials

May compel faculty to pay for copying May compel faculty to pay for copying that could otherwise constitute fair usethat could otherwise constitute fair use

2. Institutions adopt rules of thumb for 2. Institutions adopt rules of thumb for fair use copyingfair use copying

one journal article or book chapterone journal article or book chapter

set number of charts, graphs, set number of charts, graphs, illustrationsillustrations

still can be overly restrictivestill can be overly restrictive

some copying still requires fair use some copying still requires fair use analysisanalysis

3. Yale CLS avoids adopting black and 3. Yale CLS avoids adopting black and white standardwhite standard

operating in a gray area of the lawoperating in a gray area of the law

take common sense approachtake common sense approach

advise faculty when permission is advise faculty when permission is necessarynecessary

Seeking permissionSeeking permission

Start process at early stage of projectStart process at early stage of project

Identify party authorized to give Identify party authorized to give permissionpermission

More difficult if copyright has been More difficult if copyright has been transferredtransferred

Letter requesting permissionLetter requesting permission

Precise as to scope of permission and Precise as to scope of permission and duration of useduration of use

Dear Sir or Madam: I am on the faculty at Yale University where I teach [Language] language and literature. As part of my language classes, I have been making available to my students [describe type of project that will incorporate the work for which you are requesting permission]. I recently came across the above-referenced work to which I believe you hold all rights, including copyright. I believe that this work would have significant educational value for my students, and I would like to make it available to them in a manner intended for use by students enrolled in my classes. I can assure you that your work will be used only for this limited purpose and will not otherwise be reproduced or commercially exploited. If you are not the entity that holds rights in the above referenced work, I would greatly appreciate any information (i.e., name, address, phone, fax, e-mail) that you might have as to the entity that would be in a position to provide the requested permission.

Assuming that you are the rights holder, I ask your consent to this limited use of the above-referenced work for students in my classes. I am willing to place any notice or credit that you may ask to be displayed in conjunction with your work. Your cooperation in this matter is greatly appreciated. Please contact me if you have any further questions either by phone [(Phone No.)] or e-mail [(Email Address)]. Otherwise, please acknowledge your willingness to grant the requested permission by signing the enclosed copy of this letter and returning it to me in the enclosed stamped, self-addressed envelope. Sincerely yours, Permission granted for the use of the material as described above: Name & Title: ____________________________________________ Company/Affiliation: ______________________________________ Date: __________________________________________________

Dear Sir or Madam: I am on the faculty at Yale University where I teach [Language] language and literature. As part of my language classes, I have been making available to my students [describe type of project that will incorporate the work for which you are requesting permission]. I recently came across the above-referenced work to which I believe you hold all rights, including copyright. I believe that this work would have significant educational value for my students, and I would like to make it available to them in a manner intended for use by students enrolled in my classes. I can assure you that your work will be used only for this limited purpose and will not otherwise be reproduced or commercially exploited. If you are not the entity that holds rights in the above referenced work, I would greatly appreciate any information (i.e., name, address, phone, fax, e-mail) that you might have as to the entity that would be in a position to provide the requested permission.

Describe project that will incorporate the work for which you are requesting permission

Identify work to be copied

Use will be limited to students enrolled in classes

Assuming that you are the rights holder, I ask your consent to this limited use of the above-referenced work for students in my classes. I am willing to place any notice or credit that you may ask to be displayed in conjunction with your work. Your cooperation in this matter is greatly appreciated. Please contact me if you have any further questions either by phone [(Phone No.)] or e-mail [(Email Address)]. Otherwise, please acknowledge your willingness to grant the requested permission by signing the enclosed copy of this letter and returning it to me in the enclosed stamped, self-addressed envelope. Sincerely yours, Permission granted for the use of the material as described above: Name & Title: ____________________________________________ Company/Affiliation: ______________________________________ Date: __________________________________________________

request limited consent offer to display

credit with copy of workowner of copyrighted

work should give consent by signing letter and returning copy

Initial permission letter does not offer Initial permission letter does not offer compensationcompensation

Owner can request paymentOwner can request payment

Depending on amount of material Depending on amount of material reproducedreproduced

Whether educational (non-profit) or Whether educational (non-profit) or commercial (for profit)commercial (for profit)

What if owner cannot be located ~What if owner cannot be located ~

Or ignores permission requestOr ignores permission request

Work may be old or out of printWork may be old or out of print

No one with ongoing interest in workNo one with ongoing interest in work

Does not excuse copying of copyrighted Does not excuse copying of copyrighted work work

Weigh risk of proceeding without Weigh risk of proceeding without consentconsent

Consider other fair use factorsConsider other fair use factors

Copying without consent could Copying without consent could constitute copyright infringementconstitute copyright infringement

Liability for monetary and injunctive Liability for monetary and injunctive reliefrelief

Commercial product heightens Commercial product heightens visibility and likelihood of objection visibility and likelihood of objection

If you decide to reproduce work ~If you decide to reproduce work ~

Scope and duration of use may never Scope and duration of use may never come to attention of copyright ownercome to attention of copyright owner

Document all attempts to contact ownerDocument all attempts to contact owner

Always credit owner of copied workAlways credit owner of copied work

whether copied with or without whether copied with or without permissionpermission

EIGHT MYTHS ABOUT COPYRIGHTEIGHT MYTHS ABOUT COPYRIGHT1. It is difficult to get a copyright.1. It is difficult to get a copyright.

copyright is automaticcopyright is automatic

registration requires simple form and costs registration requires simple form and costs only $30only $30

2. Copyright does not concern me as an 2. Copyright does not concern me as an educator. educator.

fair use does not give fair use does not give carte blanchecarte blanche to copy to copy

at some point copying will go beyond at some point copying will go beyond permissible fair usepermissible fair use

3. I can always copy a work that does not 3. I can always copy a work that does not have a copyright notice. have a copyright notice.

copyrighted works do not have to bear copyrighted works do not have to bear copyright noticecopyright notice

4. I can never copy a work with a copyright 4. I can never copy a work with a copyright notice.notice.

copyright may have already expiredcopyright may have already expired

copying may occur as fair usecopying may occur as fair use

5. I can copy as long as I give credit to 5. I can copy as long as I give credit to the author or copyright owner.the author or copyright owner.

presence of credit may not be enough to presence of credit may not be enough to excuse what is otherwise an infringementexcuse what is otherwise an infringement

6. I can copy a copyrighted work as long 6. I can copy a copyrighted work as long as it is not for commercial purposes.as it is not for commercial purposes.

non-commercial nature of copying is only non-commercial nature of copying is only one factor in fair use analysisone factor in fair use analysis

7. I can make copies of copyrighted 7. I can make copies of copyrighted materials available to students as long as materials available to students as long as access is password protected. access is password protected.

shows educational purpose and reduces shows educational purpose and reduces access by unauthorized personsaccess by unauthorized persons

never excuse for otherwise impermissible never excuse for otherwise impermissible copyingcopying

8. Educators never get sued for copyright 8. Educators never get sued for copyright infringement infringement

let the copier bewarelet the copier beware

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