Intellectual property rights protect the authorship of original works, such as books, movies, and songs. In general, works that have this protection cannot be used without the permission of the author. Each country has its own copyright law, which means that even if a work is not protected in the United States, it may be protected by copyright in another country. To find out if a work is protected by intellectual property rights in the United States, first examine the work itself for clues. Works that are not protected by intellectual property rights are considered "public domain" and can be used freely. If you suspect that a work may be protected by intellectual property rights, do a search in the United States Copyright Office. Finally, even if a work is protected by these rights, consider using it in a limited way and within the parameters of "fair use".
Steps
Part 1 of 3: Find Clues in the Construction Site
Step 1. Examine the work for a copyright notice
Many works declare or not to be protected by these rights. You will know that a work is protected if it includes a "notice of intellectual property rights", which will be marked either by a "c" in a circle (©) or by the words "intellectual property rights" followed by the date of the first publication and the name of the owner of such rights.
- If the work is a book, look for an intellectual property rights page. You can usually find it on the front of the cover.
- If the work is a movie or TV show, you can usually find them at the end of the credits.
- If the work is a CD or LP, look for any references to intellectual property rights on the packaging.
- If the work is a magazine, the intellectual property rights are likely near the index and at the beginning of the issue.
- If the work is a digital photograph, the intellectual property rights will be indicated by means of a label. If it is a printed photograph, these rights will appear on the back of the image.
Step 2. Check the date
Some works enter the public domain because their intellectual property rights have expired. This applies to:
- All works published in the United States before 1923.
- Some works published with a notice of intellectual property rights after the year 1923 if, for example, these rights were never renewed. To find out whether or not the intellectual property rights have been renewed, you may need to search the records of the United States Copyright Office.
Step 3. Consider the type of work
Some works automatically enter the public domain at the time of their creation because they cannot be protected by intellectual property rights. These works include:
- titles, names, phrases and short catchwords, familiar symbols and numbers.
- ideas and facts (for example, the date of the Gettysburg Address).
- processes and systems.
- government works and documents.
Step 4. Look for the "CC0" mark in the public domain
Some owners of intellectual property rights decide to renounce their interests and place their works in the public domain through the "Creative Commons" website. To identify if a work belongs to the public domain you must look for the mark "CC0".
When searching for images on the Internet, look for an indication in small print under the image that says: "Copyright and related rights have been waived under the CC0 license."
Step 5. Determine if the work has not been published
Unpublished material is protected by copyright law, even if it does not contain any reference to an intellectual property right or has been registered with the Copyright Office. The law requires only that such works be fixed in tangible form. For this reason, you should be even more careful when using material that has never been published.
- To determine whether or not a work has been published, find out if the author's intention was to distribute it publicly. If only a few copies were created and distribution was limited, it is likely that it was not published.
- If you think a work has not been published, find out if the author is deceased. The intellectual property rights of an unpublished work will expire 70 years after the death of the author. If the author (or the date of his death) is unknown or if the author is a corporate entity, the intellectual property rights will expire 120 years after the date the work was created.
- Avoid using unpublished material in manuscript archives or collections, unless you know for sure that the intellectual property rights have expired. It is very likely that much of this material is still protected by these rights.
Step 6. Beware of "orphan works"
It is presumed that many works created after 1923 are still protected by intellectual property rights, although their authors cannot be found. These works are known as "orphan works". You must be careful to use the content of the orphan works, as the true owner could, sooner or later, show up and accuse you of violating their intellectual property rights.
Mass digitization projects, such as Google Books, are full of photographs, letters and texts whose authors are untraceable and which, technically, are still protected by intellectual property rights. Until Congress passes laws authorizing the use of such works, you run the risk of violating copyright law by using their content
Step 7. Access web pages that contain only works in the public domain
Some web pages collect books, images, illustrations, audios and films whose period of protection has expired or whose creator has not renewed the license of intellectual property rights. These works are in the public domain and can be used freely for any purpose. These web pages include:
- Public domain images from the Smithsonian Institution.
- The New York Times Public Domain Archives.
- The Gutenberg Project, which contains a collection of e-books in the public domain.
- Librivox, a website containing public domain audiobooks.
- The Prelinger Archives, which is a vast collection of advertising, educational, industrial, and hobby films.
Part 2 of 3: Search the Intellectual Property Rights Database
Step 1. Do your own search in the Copyright Office
Identify the author, title, and publisher of a particular work, then visit the United States Copyright Office to search for records related to that work. This office is located in the Library of Congress in Washington D. C. and is open to the public Monday through Friday, from 8:30 a.m. at 5:00 p.m.
- Register with the Public Information Office, which is located in room LM-401, on the fourth floor of the James Madison Memorial Building.
- Once you have registered, visit the Public Archives reading room of the Copyright Office (which is also located on the fourth floor of the James Madison Memorial Building.
- Your search method will depend on the date the work was copyrighted. This represents a great challenge, since you supposedly do not know if the work has been protected by these rights or not in the first place. Based on what you know about the work, try to guess if the work might have been protected by intellectual property rights before or after 1978. For works protected with these rights before January 1, 1978, use a catalog of physical cards to find information about a work. For works protected with these rights after January 1, 1978, use the online card catalog. If you think it could be either option, look in both catalogs.
- If you will be using the physical card catalog, ask the employee on duty at the Copyright Office for help to find the work and retrieve the registration certificate, as well as other documents on the ownership of said work.
- If you will be using the online card catalog, go to one of the available computers and click "Find Records" on the home screen. On the next screen, click "Search Catalog".
- Enter a search term in the top box. Then, enter the type of search term (for example, the title of the work, the name of the author, or a keyword) in the box below. If you are looking for a title, omit the opening article (for example, "the", "the" or "a", "an"). Click the "Search" button to search.
- The search will display a list of titles on the next screen. Find the title and date that match the work you are researching. Click on the correct work to view the certificate of registration, as well as other records related to that work.
Step 2. Examine the registration certificate
If you are conducting a search yourself through the Copyright Office, you will need to examine the registration certificate to determine who initially acquired ownership of that work. You will also need to review other transfer and renewal documents to see if the property was transferred to a third party.
- When reviewing the certificate of registration, look for the owner's name in the space in Section 4 titled "Applicant for Intellectual Property Rights."
- Look for documents evidencing assignments and other types of transfers to find out if the property was transferred to someone else.
- Examine the date of the copyright notice for the work. Remember that any work published before 1923 is in the public domain.
- Look for renewal notices. Works registered or published before 1964 whose intellectual property rights were not renewed are in the public domain. Works registered or published after 1963 could be protected by these rights, even if they were not renewed.
Step 3. Hire the Copyright Office to do the search for you
If you are unable or uncomfortable searching the Copyright Office records on your own, you can hire the Copyright Office staff to conduct the search and send you a written report. This search will cost you $ 200 for each hour of research and there is a minimum amount equal to two hours.
- Fill out the online application form on the Copyright Office website: www.copyright.gov/forms/search_estimate.html.
- The Copyright Office will respond and include an estimated fee for the search within two to five days.
- Provide any detailed information in your request, such as the title of the work, the names of the authors, the name of the owner of the intellectual property rights, the approximate year the work was published, and the type of work (book, play, musical composition, sound recording, photography, etc.).
Step 4. Hire a private investigation company
As an alternative to hiring Copyright Office staff to conduct your search, you can hire a private company to search the Copyright Office records for you.
- There are two advantages to hiring a private company to conduct your search. First, a private company can provide you with more reliable results and faster than the staff of the Copyright Office, within two to ten days after submitting your application. Second, in addition to determining whether a work is in the public domain or if you can obtain the necessary rights to use it, a private company may provide you with other services, such as tracking the history of the intellectual property rights of a fictional character or finding works. with similar titles.
- Private investigation companies charge from $ 75 to $ 300 per search.
- The largest and best known intellectual property rights research company is Thomson & Thomson Copyright Research Group (www.thomson-thomson.com).
Part 3 of 3: Limit Yourself to "Fair Use" of Intellectual Property Rights
Step 1. Create something new instead of copying
In determining whether the use of copyrighted material is "reasonable," courts consider the purpose and nature of such use. If the material is used in a transformative way, which means that the fundamental character of the original work is altered, the use is considered reasonable. However, if the new version simply copies or replaces the original work, then such use is unreasonable.
For example, a poet using a line from a poem by T. S. Eliot in his own poem is considered within the doctrine of "reasonable use", since he is using it to create a new poem
Step 2. Use the work only for certain purposes
The purpose for which you use the copyrighted work is also of vital importance. Generally, the following uses are considered "reasonable uses" of copyrighted material:
- Criticisms and comments: For example, while copying the lyrics of a song is not allowed, it could be considered "fair use" if it is reproduced in the context of a music review.
- News reports.
- Research and academic study.
- Non-profit educational use: For example, teachers photocopying limited portions of written works for use in the classroom.
- Parodies
Step 3. Consider the nature of the copyrighted work
Another factor that the courts take into consideration is the nature of the work protected by intellectual property rights. Certain types of works, such as those that have not been published or works with high creative content, are protected with greater emphasis. Therefore, your use of such works is more likely to violate copyright law.
- Determine if the work you want to use has been published or remains unpublished. If only a few copies were made and it was not the intention of the author to distribute it publicly, it is likely that it was not published and that its use creates certain risks.
- Ask yourself if the work is highly creative or is simply factual. If you choose to use material from a highly creative work, such as a poem or song, you are more likely to violate copyright law.
Step 4. Restrict your use to a small or relatively insignificant portion of the copyrighted work
Courts also take into consideration the amount of copyrighted material that was used and the importance of that section to the work as a whole.
- For example, copying a couple of lines from a novel might be considered fair use, unless those lines are critical to the heart of the overall work.
- On the other hand, even copying a line from a song could violate copyright law, as the total content of a song is very short.
Step 5. Evaluate how your use will affect the value of the original work
A final factor that courts take into consideration is the impact of your use on the current and potential market value of the original work.
- Ask yourself whether your use of the copyrighted work will deprive the copyright owner of a significant potential or existing source of income.
- For example, a sculptor used copyrighted photographs to create sculptures and sold them for several hundred thousand dollars. Although the sculptor used these photographs in a completely new way, the court found that the sculptor had violated copyright law by depriving the photographer of a potential market for his photographs.