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WHAT YOU NEED TO KNOW ABOUT COPYRIGHTS, INFRINGEMENT, FAIR USE, AND PLAGIARISM IN A UNIVERSITY SETTING Stephen E. Gillen Wood Herron & Evans LLP 2700 Carew Tower 441 Vine Street Cincinnati, OH 45202 513.241.2324 ext 470 Copyright © 2011 by Stephen E. Gillen Copyright is a bundle of rights • • • • • • Reproduction Distribution Adaptation Public performance Public display Digital transmission (for sound recordings) Who owns it • Human author • Work for hire – By employment – By contract – University exceptions • Joint authorship • Collective works (journals) What is protected by copyright • • • • • • • • • Literary works Musical works Dramatic works Pantomimes and choreographic works Pictorial, graphic, and sculptural works Motion pictures Sound recordings Architectural works Collective works and compilations What isn’t protected • • • • Works not fixed Titles, names, and short phrases Facts and ideas Blank forms and common tables How do you get a copyright • It’s automatic • No formality is required • Registration is available and recommended • Notice does not require registration How long does a copyright last • Life plus 70 years • 95-120 years in the case of WFH • Other rules for older works Transfer of Copyright • Requires a writing • Except for non-exclusive license • Can be terminated after 35 years Copyright ≠ Plagiarism • Plagiarism is passing the product of someone else’s intellectual labor off as your own (from the Latin plagiare – to kidnap) – Whether it is still under copyright – Whether it was ever under copyright • Using copyrighted 3rd party works may be infringing even if you provide attribution Avoiding infringement • Paraphrasing is okay (from the Greek para phrasien – to show alongside) – Taking the unprotected facts and ideas – while leaving the original expression behind • Won’t save you from a plagiarism claim if you do it without attribution Fair Use • Use without permission for criticism, comment, teaching, scholarship, or research is not infringing provided the use is fair. Is it fair – 4 factors • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; • the nature of the copyrighted work; • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; • the effect of the use upon the potential market for or value of the copyrighted work. No bright line test – each case considered ad hoc • Salinger – 200 words from unpublished letters not okay • Harper – 300 words from 20,000-word autobiography not okay • Maxtone-Graham – 7,000 words from interviews for critical socio political work okay No bright line test for other media • But there are some best practices – Center for Social Media – Fair Use Guidelines for Educational Multimedia Who owns the rights in your work • Co-authors • University • Journal publisher Questions ????