Copyright Policy & Guidelines For Fair Use


The objective of the Alverno College Library Copyright Policy and Guidelines for Fair Use is to provide the Alverno College teaching and learning community with access to practical solutions and productive means for respecting and using intellectual property rights. The Library's policy also supports the principles in the Technology Use Policy and the Alverno Educator's Handbook.

Please note that this web page is intended for informational purposes only and should not be considered legal advice.

General Copyright Information

The first copyright law was enacted in 1790 to "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." A copyright is a property right attached to an original work. Copyright exists for three basic reasons:

Examples of Works Protected by Copyright:

  • Literary works
  • Dramatic works
  • Choreographic works
  • Pantomimes
  • Sound recordings
  • Musical works (including lyrics)
  • Graphic, pictorial and sculptural works
  • Web sites
  • Computer software
  • Art
  • Photographs
  • Paintings
  • Architectural works

Copyright is a statuary privilege extended to creators of works that are fixed in a tangible medium of expression. Thus, copyright protection for original works do not apply to:

  • Ideas
  • Principles
  • Concepts
  • Systems
  • Procedures
  • Process
  • Discovery Methods of Operation
  • Works of the U.S. Government

Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, 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 the use made of a work in any particular case is a fair sue the factors to be considered shall include-

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of ALL the above factors. Also:

The Digital Millennium Copyright Act (DMCA) was enacted by the U.S. Congress and signed into law by President Clinton in October 1998. This legislation amended Title 17 of the U.S. Code to comply with terms of two World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

The DMCA increased criminal penalties for circumventing anti-piracy technology.

It outlawed the manufacture, sale, and distribution of software or hardware to evade Data Rights Management (DRM) systems.

The DMCA created a "safe harbor" for Internet service providers from liability for the actions of customers who are guilty of copyright infringement. Online service providers are obligated to remove infringing content from their servers and to implement a procedure for copyright owners to request the removal of material. Many online service providers have a counter-claim process for Internet users to dispute the removal of "infringing" content.

The DMCA allows computer repair personnel to make temporary copies of software for the purpose of repairing computers or computer programs. It permits software designers to reverse engineer software for the purpose of testing the interoperability of computer programs.

Another exemption allows broadcasters to create ephemeral copies of audiovisual materials, especially for the purpose of broadcasting radio programs without the necessity of changing discs or tapes.

The DMCA authorizes the U.S. Copyright Office to issue exemptions on a triennial basis.

The DMCA mandated the U.S. Copyright Office to undertake a study of how Copyright law effects Distance Education.

For a quick overview of the Digital Millennium Copyright Act consult the following article in Wikipedia: http://en.wikipedia.org/wiki/DMCA

Both the U.S. Copyright Office and the American Library Association offer detailed summaries of the Digital Millennium Copyright Act:
http://www.copyright.gov/legislation/dmca.pdf
http://www.ala.org/ala/issuesadvocacy/copyright/dmca/index.cfm

For a discussion of issues arising from the DMCA such as Fair Use consult the Electronic Freedom Frontier's website: http://www.eff.org/issues/dmca

The Electronic Freedom Frontier has published white papers on "Unintended Consequences: Ten Years under the DMCA" and "Unintended Consequences: Seven Years under the DMCA":
http://www.eff.org/files/DMCAUnintended10.pdf
http://www.eff.org/files/DMCA_unintended_v4.pdf

For an example of how online service providers respond to claims of copyright infringement, consult Youtube's DMCA policy: http://www.youtube.com/t/dmca_policy

For Alverno Faculty & Staff


Copyright Permission Request Form

Each copy is required to contain notice of copyright. Each copy must have notice of copyright holder. (copyright year, publisher). Three tests are required for each instance of multiple copying:

Fair Use Rules of Thumb for Print Materials An instructor may copy (or ask to have copied) for purposes of research, teaching, or preparation for teaching:

Suggested alternatives to photocopying or digitizing material:

Applying Fair Use in the Development of Electronic Reserves Systems

Contact Charles Elftmann x6193 with questions.

From Georgia Harper and the University of Texas System


Limit coursepack materials to:

Include:

Obtain permission from the copyright owner for material that will be used repeatedly by the same instructor for the same class.

From Cornell University


Texts no longer covered by copyright and therefore in the public domain are freely permitted on course web pages. Works published before 1923 can generally be assumed to be out of copyright. An instructor may (copy or scan or ask to have copied or scanned) for the purposes of research, teaching, or preparation for teaching:

The text, images, etc., on a course webpage should never be extensive enough to substitute for the purchase of textbooks or course packets. All posted materials covered by copyright must include complete citations to original works and clear copyright notices. The documents section of the webpage should be restricted to the students enrolled in the course, the professor, and necessary system administrators. If you are going to use the same copyrighted material repeatedly on a course webpage, get permission and pay a reasonable fee for it. To fall within the "safe harbor" where permission of the copyright holder does not need to be obtained:

From the Music Library Association. Copyright © 2006. All rights reserved.

  1. The guidelines were developed to apply only to off-air recording by non-profit educational institutions.
  2. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by Alverno College for a period not to exceed the first forty-five consecutive calendar days after date of recording. At the conclusion of this retention period, the recording must be destroyed or erased.
  3. Off-air recordings may be used once by individual instructors in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building on campus, as well as in the home of students receiving formalized home instruction during the first consecutive school days in the forty-five calendar day retention period. School days are school session days only, with the forty-five calendar day retention period.
  4. Off-air recordings may be made only at the request of and used by individual instructors, and may not be recorded in anticipation of program requests. No broadcast program may by recorded more than once at the request of the same instructor, regardless of the number of times the program is broadcast.
  5. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of instructor under these guidelines. Each additional copy will be subject to all provisions governing the original recording.
  6. After the first ten consecutive in-session school days, off-air recordings may be used up to the end of the forty-five calendar day retention period only for instructor evaluation (whether or not to include the broadcast program in the teaching curriculum), and may not be used in Alverno College for student exhibition or any other non-evaluation purpose without permission or authorization.
  7. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from the original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
  8. All copies of off-air recording must include the copyright notice on the broadcast program as recorded.
  9. Alverno College is expected to and will establish appropriate control procedures to maintain the integrity of the guidelines.
  1. The guidelines apply to lawfully acquired copyrighted works not included under section 110(2), whether dramatic or audiovisual, transmitted over a satellite, secure computer network or by closed circuit.
  2. The transmission can be made to a classroom or similar place or to a site controlled by Alverno College to officially enrolled students.
  3. Classes, as part of the college's systematic instruction, must be either
  4. Copies of the transmission may be retained for 15 consecutive class days.
  5. Permission is required for any commercial use and for any use of the resulting tape beyond 15 days.

From Georgia Harper and the University of Texas System

The following guidelines state the minimum and not the maximum standards of educational fair use.

Permissible Uses

  1. Emergency copying to replace purchased copies that for any reason are not available for an imminent performance purchased replacement copies shall be substituted in due course.
  2. (a) For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole that would constitute a performable unit such as a section, movement or aria, but in no case more the 10% of the whole work. The number of copies shall not exceed one copy per student.
    (b) For academic purposes other than performance, a single copy of an entire performable unit (section, aria, movement, etc.) that is confirmed by the copyright proprietor to be out of print, or unavailable except in a larger work, may be made by or for a teacher solely for the purpose of his or scholarly research or in preparation to teach a class.
  3. Printed copies that have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or any lyrics altered or lyrics added if none exist.
  4. A single copy of recordings or performances by students may be made for evaluation or rehearsal purposes and may be retained by Alverno College or the individual instructor.
  5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by Alverno College or an individual instructor for the purpose of constructing aural exercises or examinations and may be retained by Alverno College or the individual instructor.

Prohibitions

  1. Copying to create or replace substitute or anthologies, compilations or collective works.
  2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.
  3. Copying for the purpose of performance, except in "Permissible" (1).
  4. Copying for the purpose of substituting for the purchase of music except as in "Permissible" 2(a) and 2(b).
  5. Copying without the inclusion of the copyright notice that appears on the printed copy.

A format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer reasonably available in the commercial marketplace.

For Alverno Students

  1. Students have the exclusive right to produce derivative works and to publish, perform and display any that they have created. Alverno College must obtain student permission before publishing the work on the Internet and give proper copyright attribution to the student. Permission forms may be obtained for this from the library.
  2. In the event that a student wishes to use another individual's work by publishing it on the Internet, the student must obtain the owner's permission.
  3. If a student downloads a copyrighted piece of material from the Internet, the material can be used within the classroom setting without violating copyright.
  4. Educators who use the Internet are subject to copyright laws
  5. A website is a copyrightable form of expression. When employees (faculty & staff) create websites as a condition of employment, the website becomes the property of Alverno College.
  6. If a website created by an employee of Alverno College becomes an issue involving legal action, the college may be liable for contributory infringement, if it is found to have knowledge that material used to create the website has violated copyright.
  1. Guidelines, which are subject to portion and time limitations, permit students to:
  2. The guidelines permit instructors to incorporate others' works into multimedia creations to:
  3. Students and faculty may retain their multimedia creations for no more than 2 years after the creation of the work.
  4. Students and faculty may use not more than:
  5. Performance rights are key to the permissions available for use.
    Videos are sold with and without "non-theatrical-public-performance rights." Section 110(1) of the copyright law allows showing videocassettes labeled "for Home Use Only" in classrooms under the following conditions: Legitimately-made copies may be shown only to teachers and students in face-to-face instruction, in courses given for academic credit, in classrooms or other location devoted to instruction (e.g. laboratories, gymnasiums, libraries, etc.). Educators may claim fair use for their own productions providing these productions are:
  6. Videotapes licensed for "home-use only" may be used in a classroom if:
  7. A format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.


When working with visual images produced by other people, it is imperative to be cognizant of copyright law. Artists, from as far back as the Renaissance have used parts of other people’s work in their own work. The key word is “part”. One artist may use a figure from another’s painting. Another may use imagery from popular culture or advertising. An example is Andy Warhol’s use of Campbell’s soup cans. He was not the original designer of the soup can. Warhol also made art based on photographs taken by others. Examples are the use of photographs of Jacqueline Kennedy, Chairman Mao, and Marilyn Monroe. Many artists have used photography from mass media in their art work. Sometimes they get sued for copyright infringement. Everyone holds copyright ownership of their images. If you take a photograph, someone else cannot use it without your permission. As a student, knowledge of copyright law is important so that you do not infringe on the rights of others.

It is considered ORIGINAL ART if you:

  1. Substantially change an image that is in the public domain (artist has been dead for 50 years) to make it your own. An example is Robert Colescott deriving his composition and title from Emanuel Leutze’s George Washington Crossing the Delaware. He painted the figures dark skinned and changed the name to George Washington Carver to make a statement on race. His painting cannot be confused with Leutze’s. It is not an infringement since he is making a socio-political commentary on the Leutze painting.
  2. Parody or offer social commentary on an existing artwork. That is why there are so many artworks that include the image of the Mona Lisa. Marcel Duchamp’s painting a mustache on a representation of the Mona Lisa makes it no longer THE Mona Lisa and changes the Leonardo Da Vinci painting’s meaning and historical context.
  3. Use appropriation or pastiche to make a unique art work. Appropriation is using part of another person’s art in your work. Since the early 1900’s artists have been insisting that other artists’ work is fair game as subject matter just as is an apple or pear in a still life. See Pablo Picasso’s series of works based on Diego Velazquez’ Las Meninas painting. Sherrie Levine has based a large body of work on appropriation, with a lot of attendant controversy. Appropriation of imagery calls into question rightful ownership of an image. It makes a society bring up the discussion to decide where to draw the line on property rights. Pastiche is a collection and arrangement of imagery derived from a variety of sources that are not the artist’s own.
  4. Do not take away the owner’s ability to earn income from the work in question. For example, people will not stop going to the Louvre Museum in Paris to see the Mona Lisa because another artist parodied the painting.

Artists have been successfully sued for copyright infringement.

A lawsuit is costly to the artist. An example is the case made over Jeff Koons’ ceramic work made from an unacknowledged photograph titled String of Puppies. Koons did not ask permission of the photographer to use the image. The court ruled that it was “not significantly different” from the original photo to meet criteria #1 above. Koons was required to pay damages to the photographer

As a student, an instructor or gallery director may question the originality of your work as related to copyright. Many course assignments are intended to make you think and to come up with your own ideas. By using images that you find that are made by others, you may not be meeting an instructor’s criteria for originality. If this issue is in question, it should be discussed with the instructor. This issue comes up often in technological contexts. Students often search the internet for images to combine to make a work they consider their own. The instructor may want the student to generate original work to combine and experiment with compositions. For many students, searching the internet for readymade imagery has become an easy way out of difficult assignments. The goal of an art education is to teach students basic skills that will be used lifelong. These skills cannot be learned if a student uses others’ imagery. These skills cannot be learned if a student uses others’ imagery without significant creative purposes of parody, pastiche or socio-political commentary. Artistic intent is crucially important when considering issues of appropriation of others’ images.

Coursework and Copyright

In some of your coursework, you may be asked to study or copy the style of a particular artist to learn from that exercise. For example, in A134 Two Dimensional Design, you may examine a color reproduction to translate it into black and white. This is an extremely good learning exercise for measuring the picture plane to accurately draw the image, figuring out what value a color is, and learning how to mimic the look of a surface with an art medium. This challenges the student to try techniques that are unfamiliar and therefore to learn something new. Since the work is a learning exercise, if you chose to submit it to a gallery show, it would need to be titled “Study After…Artist’s name here.”

  1. The use of digital images is permissible when:
  2. Students and educators engaged in instructional activities can use such images as long as:
  1. Computer programs fall under the category of "literary works" and are protected by copyright in the same manner. The author of copyrighted software retains exclusive right to control the copying or distribution of the program.
  2. The Copyright Software Rental Amendments Act provides an exemption for nonprofit libraries provided that a warning of copyright is affixed to each package. The notice reads:
    "Under certain condition specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program, except as permitted by Title 17 of the U.S. Code, may be liable for copyright infringement. This institution reserves the right to refuse to fulfill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law."
  3. This notice must be durably attached to the package that is loaned.
    ***This exemption for lending software is for the library only. Alverno College academic department, administrators, or computer or technology directors do not qualify for this exemption! The educators of Alverno College must comply with the legal and ethical issues involved in copyright laws and publisher license agreement and must accept responsibility for enforcing and adhering to these laws and agreements. Budget and time constraints do not justify illegal use of software.

May photocopies be placed on reserve and may students copy them?
Instructors may place photocopied articles on reserve for one semester only. After that, permission must be sought from the copyright owner. Students may produce one copy to be used for private study, scholarship, or research. If electronic transmission of reserve material is used for purposes in excess of what constitutes "fair use" that user may be liable for copyright infringement.

I want to make some slides of artistic works. Is this allowed?
A single slide or transparency may be made for the purposes of research or private study. The guidelines permit instructors to incorporate others' works into multimedia creations to:

May I photocopy an article/book chapter I recently found for my students?
For the purposes of research, teaching, or preparation for teaching, instructors may make a single copy of a chapter from a book or a single copy of an article from a periodical or newspaper. Copying is limited to the number of students in class; one copy per student. The same instructor may not repeat copying with respect to the same item from term to term without permission from the copyright owner. There shall be no copying from works intended to "consumables" in the course of study or teaching. These include workbooks, exercises, standardized tests, test booklets, answer sheets, and similar consumable material.

Can I record a TV program and show it to my students?
A broadcast program may be recorded off-air simultaneously with broadcast transmission. Off-air recordings may be used once by individual instructors in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary. Off-air recordings may be made only at the request of and used by individual instructors, and may not be recorded in anticipation of program requests. No broadcast program may by recorded more than once at the request of the same instructor, regardless of the number of times the program is broadcast.

May I show rented videos/DVDs in class?
Videotapes licensed for "home-use only" can be used in a classroom if:

These guidelines constitute "fair use."

I wish to remove objectionable or irrelevant scenes from a movie I plan to show. May I edit the scenes out?
--Although you are not required to show the entire video, you may not edit it. If you wish to skip scenes, you can fast forward past it.

Is it ok to make a backup copy of a videotape?
Back-up copies of videotapes may not be made unless you have purchased archival rights from the copyright holder or received written permission prior to making the copy.

I have an old record. May I copy it to cassette and use that instead?
You may transfer a recording to a usable format.

Are computer programs subject to copyright?
Computer programs fall under the category of "literary works" and are protected by copyright in the same manner. The author of copyrighted software retains exclusive right to control the copying or distribution of the program. Copying of computer software is not an infringement if:

I want to scan some diagrams and include them in my PowerPoint presentation. Is this permitted?
Material included in a PowerPoint presentation is stored in electronic form, and as such is not covered by any licensing scheme.

How do I obtain permission to copy?

For information and forms for permission, consult:
Copyright Clearance Center at http://www.copyright.com

What are the limits of fair use?
Copyright law provides several instances in which reproduction of copyrighted items is permissible (Section 107 of Title 17 of copyright law). These are considered "fair use exemptions." In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

Who is liable for copyright infringement? What are the penalties?
The penalty for copyright infringement is not a minor inconvenience. Damages can be actual or statutory, depending on how the suit is filed and whether the copyright to the infringed work was registered before the infringement commenced. Statutory fines range from $750 to $30,000 per infringement, with each individual work constituting a separate act of infringement. For complete information about potential penalties and liabilities, see Chapter 5 of U.S. copyright law at www.loc.gov/copyright/title/chapter05.pdf

How can I tell if something is in public domain?
The public domain is a space where copyright protection does not apply. When copyrights and patents expire, innovations and creative works fall into the public domain. They may then be used by anyone without permission and without the payment of a licensing fee. Public domain refers to the legal availability for public use, without charge of materials that are not protected by copyright, either those documents that have never been under copyright and those on which copyright has lapsed. Included in the public domain are most government documents, other documents for which there is a statement of public domain, and materials that were published before 1923. This chart is helpful: Public Domain Reference Chart


Alverno College Library  •  3401 South 39th Street  •   Milwaukee, WI 53215  •  414-382-6062
Last updated 09/01/11