Copyright Law and the Doctoral Dissertation: Guidelines to Your Legal Rights and Responsibilities By Kenneth D. Crews Associate Professor of Business Law San Jose State University College of Business San Jose, CA 95192-0070 Copyright, 1992, University Microfilms, Inc. "This manual is not intended as a substitute for legal advice that should be obtained from qualified attorneys." TABLE OF CONTENTS PREFACE 1 PART I: COPYRIGHT AND SCHOLARSHIP 2 The Nature of the Problem 2 Spotting Problems in the Dissertation 3 PART II: WHAT IS COPYRIGHT? 4 The Rights of Authors 4 Fair Use 4 PART III: ROAD MAP FOR COPYRIGHT COMPLIANCE 6 Is the Work Copyrightable? 6 The Subject Matter of Copyright 6 Foreign Works 7 U.S. Government Publications 7 Is the Work Copyrighted? 7 Formalities of Copyright 7 The Duration of Copyright 8 Is the Proposed Use "Fair Use"? 10 Practical Guidelines from UMI 12 PART IV: HOW TO REQUEST PERMISSION 14 PART V: PROTECTING YOUR COPYRIGHT 16 CONCLUSION 18 APPENDIX A: SAMPLE PERMISSION LETTER 19 Instructions for permission letters: 20 APPENDIX B: FURTHER READING AND GUIDANCE 21 ABOUT THE AUTHOR 23 PREFACE Copyright is one of the most confounding and misunderstood laws affecting colleges and universities. The recent court decision against Kinko's Copies reaffirmed the importance of copyright.1 While it may have clarified the law, it also has exacerbated tensions on campus as academicians respond to the often bewildering duties that copyright entails. Copyright is especially perplexing for graduate students, who usually face these issues for the first time. Graduate students also overlook their copyright obligations in great numbers: nearly one-fourth of all doctoral dissertations sent to University Microfilms, Inc. for publication lack all necessary copyright clearances and permissions. The thousands of students who wrote those disserta tions then face the unwanted burdens of seeking late permissions or revising their work to eliminate potential infringements. This manual is intended to help graduate students and advisors understand legal rights and duties at an early stage, before they can become serious problems. It should help identify when writers need to seek copyright permissions and show how to obtain them. It should also help graduate students protect their own copyrights. Although this guide focuses on doctoral dissertations, its principles extend as well to master's theses and many other published works. Users of this manual will discover that copyright is never simple; no one has quick and streamlined answers. Indeed, this overview hardly touches the depth of copyright law--it is only an introduction to some of the most common situations. It therefore cannot serve as legal advice. If, after studying this text, your circumstances raise copyright issues that you are not prepared to address, talk with your faculty advisor and consult an attorney. Some campuses offer legal assistance services. Preparation of this manual was supported by University Microfilms, Inc. in conjunction with the Council of Graduate Schools. The author would like to thank David J. Billick at UMI for conceiving the project and making it possible, and Jules B. LaPidus, President of CGS, for supporting the publication of this manual and for bringing it to the attention of graduate deans and other university officials across the country. Several readers reviewed drafts of this manual and offered crucial comments and support: William Patry of the U.S. Copyright Office, Prof. Robert Cape of Skidmore College, Carol Diminnie of St. Bonaventure University, Dean of the Graduate School and CGS Dean in Residence, 1991-1992, Steven Welch, a graduate student at American University, and Erik H. Serr, attorney for UMI in Ann Arbor, Michigan. This extraordinary group includes a foremost expert on copyright, a practicing attorney sensitive to legal rights and responsibilities, a professor who recently completed his own dissertation, a former university graduate dean, and a current graduate student. Their help and diverse perspectives were of enormous value in assessing the accuracy and utility of this work. PART I: COPYRIGHT AND SCHOLARSHIP The Nature of the Problem Completing your dissertation and earning the graduate degree can be one of the most exhilarating and satisfying moments of your career. It is also a time of enormous responsibility. In addition to meeting the demands of your committee and university, you must comply with a regime of rights and duties under copyright law. You have created a dissertation that should advance the knowledge in your field; the law establishes important rights of ownership and control over your new work. But copyright also imposes some important responsibilities when you use the creative works of other authors. Your dissertation will likely include quotations, pictures, charts, standard tests, or other materials created by other authors. Just as the law gives you rights, it also gives other authors the rights to their materials. You may therefore need to seek permission before borrowing the text or "expression" of the other works. The struggle between copyright and academics is often sensitive and confusing. The growth of knowledge depends heavily on using the earlier efforts of other scholars. Some academicians object when permission requirements seem to sidetrack scholarly inquiry, or when permissions are not forthcoming. Obtaining those permissions is often simple and expedient, but the process can be time-consuming, costly, and disappointing if permissions are not immediately granted. To ease tensions between scholarly growth and owners' rights, copyright law provides a right of fair use that allows limited copying--such as short quotations--without consent. Fair use is especially applicable to scholarship, teaching, and research, although its limits are not precise. Congress deliberately left them vague, and the amount of allowable copying depends on a variety of circumstances. This manual will explore fair use and explain how it can apply to your dissertation. It will help you make decisions about the amount of copying that may be allowed, and when you should seek permission. You must dispel one common misconception: scholarly uses, even after giving full credit and citations, are not exempt from the obligations of copyright law. Notice the difference between copyright and plagiarism. You long ago learned to footnote your use of other writer's words and ideas. Claiming them as your own is unethical and intellectually dishonest. But copyright is concerned about more than credit--a proper footnote is not enough. If you use someone else's protected work beyond lawful limits, you may have committed an infringement, even if you attribute full credit to the original author. Copyright is also concerned only with "expressions." Ideas are not copyrightable. Your dissertation may expound on the latest scientific or literary theories without necessarily raising copyright issues, but you must scrutinize uses of someone else's words, pictures, and other tangible expressions. Amidst these obligations you can find important reassurance from the law's balance: just as you must show respect for others, so must they respect the new dissertation you are about to complete. For most graduate students, the dissertation is your first major work. It may be the first piece of research predominantly within your control; it may be the first significant expression of your thinking and study. It may also be your first independent publication. A copy will probably be available at your university's library, and you will probably give University Microfilms, Inc. ("UMI") permission to sell copies to the public. You will have done your best to contribute to the scholarship of your discipline, but now you also have the opportunity to strike a legal and ethical balance: protecting your rights under the law, and showing respect for the rights of others. Spotting Problems in the Dissertation A central objective of this manual is to prevent problems that graduate students often discover only after filing their dissertations. Once your dissertation reaches UMI offices, staff members prepare it for publication and identify substantial uses of copyrighted materials that may need permission. Missing permissions may delay publication of your work. Without the permissions, the copied material may be deleted, or you may need to alter your work to eliminate the potential problems. If the copying is extensive, UMI may choose not to publish your dissertation at all; it may be listed in the database of dissertations, but not be available for purchase. UMI receives thousands of dissertations each year. Nearly one-fourth of them lack all needed permissions. Avoid the agony of that large group. Once you file your dissertation and receive your degree, further revisions would probably be the least welcome task. Look critically at the dissertation, and obtain permissions at the earliest opportunity. Now is the time to develop a good habit; you will likely write articles and books for years to come, and you will likely need permissions for those future works as well. You may also publish articles or a book based on your dissertation. You will find that other publishers face the same issue: substantial copying requires permission from copyright owners. PART II: WHAT IS COPYRIGHT? The Rights of Authors To effectively protect your rights and to respect the rights of others, a brief summary of copyright law is in order. The U.S. Constitution empowers Congress to enact copyright law. The current statute--fully revised in 1976--gives authors exclusive rights to reproduce, distribute, and make most other uses of their original works. Copyright also applies to much more than traditional writings--it protects artwork, sculpture, sound recordings, videotapes, motion pictures, maps, graphs, computer programs, databases, and a host of other original creations. You need to consider the copyright implications of duplicating any of these materials in your dissertation. Fair Use Copyright law, however, is not so simple. If it were merely a set of rights belonging exclusively to authors, we would have to seek permission for every use. But the law also grants a right of "fair use" to the public. Fair use is both a privilege and source of confusion. Nearly everyone will disagree on what is "fair," and no one has a definitive, legally binding "answer." In fact, Congress deliberately created an ambiguous fair use statute that gives no exact parameters--fair use depends on the circumstances of each case. The law offers four factors to consider: (1) the purpose of the use, including a non-profit educational purpose; (2) the nature of the copyrighted work; (3) the amount of the copying; and (4) the effect of the copying on the potential market for, or value of, the original work. Applying these factors, observers generally would agree that most short quotations from published works in a scholarly dissertation are fair use. But reproducing the full text of an article or other work--even in an academic publication--would not likely be "fair." These examples are relatively easy to grasp, but difficult questions surround more complex cases--the longer quotations, or the uses of distinctive materials, such as standardized survey instruments, questionnaires, videotapes, or computer software. Possible "fair use" examples are innumerable. Many uses require a fresh analysis, and they may never produce easy or absolute answers. Most universities have policies explaining fair use for such common activities as photocopying for research or classroom distribution, but policies on using materials in publications-- such as your dissertation--are rare. Courts also have provided little guidance. The fair use of materials in scholarly works is rarely the subject of judicial decisions--the litigation costs and attorneys' fees are prohibitive. Yet courts are not insensi tive to academic needs, and the fair use statute acknowledges the importance of educational uses. Some rulings have recognized that the growth of scholarship depends on using previous works, particularly in writing biographies or history.2 Nevertheless, courts generally give greatest emphasis to effects on the potential market for the original work. Therefore, courts have ruled that a teacher may not draft new arrangements of copy righted music and distribute copies to a school choir,3 and an educational television station cannot broadcast a protected motion picture without permission.4 Another court ruled that the recipient of unpublished letters could not read them to students without the copyright owner's permission.5 Courts have found other infringements in borrowing a book's "manner and style," or the "organizational scheme" of a manual on guitar playing, or the "total concept and feel" of computer software.6 In a case that all graduate students should appreciate, fair use did not allow a magazine to copy scales measuring "love and liking" that originated in a doctoral dissertation.7 The "road map" below will detail a few of the most important cases. PART III: ROAD MAP FOR COPYRIGHT COMPLIANCE Massive treatises survey the problems of copyright and the difficulty of applying fair use. This manual can only acquaint you with the basics. The following procedures should help you determine whether you need permission for using the works of another author by responding to three questions: (1) Is the work copyrightable?; (2) Is the work in fact copyrighted?; and (3) Is the proposed use "fair use"? Is the Work Copyrightable? The Subject Matter of Copyright Copyright does not apply to everything--it applies only to "original works of authorship" that are "fixed in any tangible medium of expression." The law applies only if the work is "original," and the courts give a broad reading to the concept of originality. The ancient writings of Socrates may not be copyrighted, but a new translation is an "original" work. Courts generally have little difficulty finding originality, so most observers were surprised when the Supreme Court ruled in 1991 that a telephone book--with little more than names, addresses, and phone numbers--was not suitably "original" for copyright protection.8 The "tangible medium" requirement expands copyright from traditional writings and pictures into the realm of video, sound recordings, and computer disks. If you can see it, read it, watch it, or hear it--with or without the use of a computer, projector, or other machine--the work may be eligible for copy right. Foreign Works This manual focuses on materials created and used in the United States, without attempting to encompass the myriad of foreign and international legal rules. In general, however, the same copyright principles apply to materials created in most countries of the world. The U.S. and most countries are parties to treaties--notably the Universal Copyright Convention and the Berne Convention--that grant mutual protection to the copyrights of each other's citizens. Until you determine otherwise, you should assume that a foreign work is subject to the same copyright principles as a domestic work. Contact the Copyright Office to determine whether the United States has a treaty with the country where a particular work in question may be copy righted (see Circular R38a in Appendix B). U.S. Government Publications The United States government produces numerous works that are not copyrightable. A specific statute prohibits copyright protection for federal government works, but no rule is ever so simple. Reports written by members of Congress and employees of federal agencies, as part of their public function, are not copyrighted. But projects written by non-government officials with federal funding may be copyrighted. Certain government works, such as postage stamps, are copyrighted under specific statutory provisions. You need to examine each item closely, and inquire with the author or the issuing agency if you are in doubt. Keep in mind that the exemption applies only to works of the United States federal government. States are left to decide whether their own works will have copyright protection. Inquire with the appropriate state agency about possible copyright protection for its materials. Is the Work Copyrighted? Formalities of Copyright Not all copyrightable works are in fact copyrighted. Some works are never protected, whether by accident or intent. For example, protection for the Academy Award "Oscar" statue was nearly lost, because the Academy of Motion Picture Arts and Sciences did not register the work or place a copyright notice on it until twelve years after the first awards ceremony.9 By contrast, medical centers often prepare brochures on public health issues, sometimes choosing not to copyright them in order to encourage duplication and distribution. Under prior law, the lack of a copyright registration or formal notice--such as the " c " symbol with the year and copyright owner's name--indicated the lack of copyright protection. But Congress since has eliminated those requirements. The 1976 Act made registration optional, and beginning in March 1989, Congress also dropped the notice require ment. The absence of formalities today does not place the work in the public domain. Their absence is no longer even a reliable clue about whether a work is protected. Two general rules can help determine whether the work is copyrighted. First, if the work was published before 1978 without a notice or registration, you may use the material without copyright restrictions. Registration records are public, and the Copyright Office will conduct searches for a fee (see Circular R6 in Appendix B). Computer on-line searches are also available through some database providers, such as Dialog. Second, if the work was published in or after 1978, the lack of a copyright notice or registration is not conclusive. You should proceed as if the work is protected until you learn otherwise from the author or publisher. If you learn that a work is not copyrighted, write a letter to the author or publisher confirming that fact. Keep a copy for your records. The Duration of Copyright Copyright limits do not last forever; protections can lapse, and the work enters the public domain. The U.S. Constitution specifies that copyright shall last only for limited times, and the current law grants privileges in most cases for the life of the author, plus fifty years. The law protects anonymous and pseudonymous works--and "works made for hire"--for seventy-five years from their first publication, or 100 years from their creation, whichever term expires first. The duration of copyright went through several changes before passage of the 1976 Copyright Act, but works published before 1978--when the new law went into effect--are now generally protected for seventy-five years. Protection for pre-1978 works still depends on proper registration and possibly renewal registration. In general, dissertations completed in 1995, for example, may copy from materials published before 1920 without copyright permission. If the work was created before 1978, but never published, a stringent set of rules applies. The old law granted "common law" copyright for works that remained unpublished. A manuscript left in the desk drawer had common law privileges, and the statutory privileges began only upon publication and registration. The principal difference between the statutory and common law regimes was that statutory rights lasted only for the limited period (previously twenty-eight years, plus a possible renewal for twenty-eight more years), while common law rights lasted in perpetuity. As long as the manuscript, letter, or other work remained unregistered and unpublished, the creator's rights never expired. The author may be dead for centuries, but the copyright lived on. The 1976 Act rescinds all common law copyright, and subjects all works to a statutory term of protection: generally life plus fifty years. To prevent abrupt termination of long-standing copyrights, however, the law provides that none of the former common law rights will expire until after December 31, 2002. Thus, in 2003 and in each subsequent year, the unpublished works of authors who died fifty years before will enter the public domain. Until then, the privileges of copyright and the limits of fair use apply to the manuscripts, letters, and diaries of even America's leading historical figures. The following table should help clarify the fundamental rules of copyright's duration. Creation of the General Rule of Work Duration In or after 1978 by Life of the author, a named author plus fifty years In or after 1978 by The earlier of an anonymous or either seventy-five pseudonymous author years from Includes works by publication, or 100 corporate authors years from creation and works for hire. Before 1978, but The later of either not published fifty years after the death of the author, or January 1, 2003. The date may be extended to January 1,2028 if the work is published before the end of 2002. Before 1978, and Seventy-five years published, from the date of originally securing the registered, and copyright. renewed as required. Is the Proposed Use "Fair Use"? If you conclude that the work is protectible, and is in fact protected by copyright law, you must then assess whether your use is "fair use." If it is not, you must seek permission from the copyright owner, a process described below. Consider again the four factors of fair use and their possible application to your needs. Keep in mind that all four factors--and other possible circumstances--work together in the fair use equation. Be careful not to reach hasty conclusions, such as assuming that all academic uses are "fair." Here is how the four factors might work in common situations: 1. Purpose of the Use. Academic uses are preferred over commercial uses. Your dissertation is fundamentally "academ ic," but once you make it available for sale through UMI, it takes on characteristics of a commercial product. After all, UMI is a commercial operation, and you are eligible to receive royalty payments from the sales. If your dissertation went no further than your faculty committee and your university's library, this factor would likely work strongly in your favor. But once published, the "purpose" of the work changes, and you need to exercise greater caution about copyright. You might also plan to publish your dissertation in another form. If so, you might as well attend to these obligations of publication at this early stage. 2. Nature of the Work Used. Evaluate carefully the work you are proposing to use. Is it a scholarly work? Is it the type of material from which quoting is normal, expected, or even encouraged? Fair use of these works may be greater than for other materials. Is it published? Fair use for unpublished manuscripts is more restrictive than for published works. The fair use of workbooks and other "consumable" works is also limited. Courts have yet to give even basic guidance for the fair use of videotapes, software, and other relatively new media. You should use these materials with considerable caution. 3. Amount of the Use. This factor may be intuitively the easiest to assess, but still without quick answers. Many people will tell you that quoting is allowed only within certain word counts, but such simple assurances are more myth than law. Look critically at easy "answers"; study instead the substan tiality of your quotations or other uses of copyrighted works. Evaluate their proportion of the whole from which they come. Evaluate whether you are using the central "essence" of the original work. 4. Effect on the Potential Market for or Value of the Original. Courts often state that this factor is most critical. Is your proposed use any competition--or even potential competition-- for the original work? Is your copy or except likely to substitute for purchasing the original? Many people make photocopies or software copies with the rationale "I would not buy one anyway," but that explanation will not save you in court. The issue here is whether your excerpt or copying is so extensive that it reasonably displaces the value or potential sale of an original. Thus, even a short excerpt might not be "fair" if it is a substantial portion or the central signifi cance of a commercially valuable work. A few recent cases offer useful insights on the meaning of fair use and the nature of your obligations. In Marcus v. Rowley, a school teacher prepared a twenty-four page pamphlet on cake decorating for her adult education classes. Eleven of those pages were taken directly from a copyrighted pamphlet prepared by another teacher for her classes. Even though both pamphlets were of limited circulation and were for teaching purposes only, the court held that the copying was not "fair use." Important in this case were that the copying was a substantial part of the original pamphlet, that the copying embraced the original pamphlet's most significant portions, and that the second pamphlet competed directly with the original pamphlet's educa tional purpose.10 Your copying in a dissertation is not likely to be so substantial, but this case makes clear that educational purposes alone do not support a claim of fair use. The lack of any real monetary damage to the original author also did not preclude an infringement claim; an author today may claim "statutory damages" of up to $20,000 for each infringement--or up to $100,000 for willful infringements--plus reimbursement of attorneys' fees. In Salinger v. Random House, Inc., the court held that fair use did not allow a biographer of J.D. Salinger to quote from the reclusive author's unpublished correspondence. The court even prevented close paraphrasing of the letters, despite their availability in research archives.11 The decision was no doubt motivated by Salinger's obsessive protection of his privacy, but the narrow reading of fair use for unpublished materials was a blow to all historians and biographers. Writers have had to revise their books, and publishers have canceled projects if permission was not granted to quote from unpublished manuscripts.12 S Supreme Court, which rationalized that unpublished materials should have greater protection, because claims of fair use may directly erode the original's market potential and usurp the author's privilege to determine the time and circumstances of first publication.13 The Supreme Court case involved the surreptitious taking of the manuscript to President Ford's memoirs and the publication of key excerpts in a popular magazine- -hardly the practice of good scholars. Yet the tendency today is to apply a narrow right of fair use to all unpublished works. One recent case was more sympathetic to the particulars of history and biography, and it found a fair use in the exceptionally brief excerpting and paraphrasing of unpublished correspondence and journals.14 Congress is also reviewing bills that would broaden those scholarly uses. For now, however, if your dissertation makes use of unpublished materials, you should quote only with great prudence and lean toward seeking permission from the copyright owners. You must also be attuned to the possible confidential nature of correspondence and other writings.15 Practical Guidelines from UMI Confused? Confusion and uncertainty are endemic in copyright law. The object of this manual is to make you more sophisticated about your rights and duties, so you can find a clearer and more accurate trail through the morass. In the end, you should be respectful of the rights of copyright owners, and you should find practical and useful ways to build on the intellectual accomp lishments of scholars who came before you. The best way to address fair use is by evaluating the four factors, but practicalities often demand more expedient guidance. Moreover, writers have been quoting and borrowing from other authors for centuries. We can at times learn from the long record of experience, rather than repeating every fair use evaluation anew. As another practical matter, the copyright issues are arising here from the prospect of publishing your dissertation through UMI. UMI therefore shares your concerns about copyright and must make every reasonable effort to avoid publishing material that infringes the rights of others. For your guidance and to help ease your dissertation through its pre-publication review, staff members at UMI offer these guidelines from their years of experience. As with any other measure of user rights, if your use is not deemed to be "fair," you must then proceed with obtaining permission. 1. Long quotations. In general, UMI raises questions about quotations from pre-existing materials that extend for more than one and one-half single-spaced pages. 2. Reproduced publications. Avoid reproducing copies of any material in the form in which it was originally published elsewhere. Examples include copies of standard survey instruments or questionnaires and articles. This scrutiny applies even if you are the author of the original work; you may have assigned the copyright to the original publisher. 3. Unpublished materials. Recent court rulings that narrow the scope of fair use for unpublished works have led UMI to question most uses of manuscript materials. 4. Poetry. Poetry, like most other works, is copyright able, but subject to fair use. Reproductions of complete poems, even if the entire work is short, may exceed fair use. 5. Music. Many owners of copyrights to musical works- -whether the music itself or the lyrics--have aggres sively asserted a limited scope of fair use. Thus, any excerpting of music or song lyrics must be made with caution.16 6. Dialogue from a play, screenplay, broadcast, or novel. Here, too, the right of fair use is construed narrowly, and any excerpts of dialogue are tested rigorously against the legal limits. ch chart, graph, drawing, or cartoon often constitutes copying the owner's entire work; thus, the right of fair use is narrowly applied. Through its wealth of experience with copyright, UMI also has compiled specific examples of permitted copying. UMI has identified lists of publishers who routinely approve limited copying that may otherwise exceed fair use. UMI also has obtained many blanket licenses with publishers of commonly used materials, such as some standardized tests and surveys. Those advance clearances mean that you do not need to secure permission or worry about fair use limits, at least for the particular works covered by the license agreements. Through its experience, UMI also has identified copyright owners who have not been forthcoming in granting permissions. UMI's awareness of difficulties in working with some proprietors might spare you the time and agony of requesting permission and being rejected. These lists of publishers and licenses are lengthy and constantly changing. You should contact UMI for a copy of the latest list and to inquire about any aspect of UMI's review and the possible need for copyright permissions. Call the UMI Copyright Unit at (800) 521-0600, ext. 3887. PART IV: HOW TO REQUEST PERMISSION Now you have come the full copyright analysis. If your use is either unrestricted or "fair," you may proceed without further ado. If your proposed use exceeds fair use, you need permission from the copyright owner. Prepare a direct and concise letter; you will find a sample form in Appendix A to this manual. A good permission letter includes a thorough description of the material to be used and a detailed explanation of how it will be used. The letter also includes a place for the recipient to sign indicating permission is granted. You must have an affirmative response. Silence is not permission. Perhaps the most important part of the letter is the addressee. You need to spend considerable effort identifying the proper copyright owner. The creator of a new work owns the copyright at its inception, but copyrights may be sold, given away, or assigned. Writers frequently transfer copyright privileges to their publishers. Most published works do include a copyright notice, which should indicate the original claimant of ownership. Write to the party named in the notice. The reference department of your university library should have biographical resources and directories of publishers to help you locate addresses. If the work does not name the author or publisher, or if you have doubts about copyright ownership, a search of records in the Copyright Office--described earlier in this manual--might identify an original registrant. The Copyright Office also records documents transferring rights to new owners. Copyrights may also be jointly owned by co-authors or successors. To avoid the potential difficulties of jointly held rights, you should obtain permission from all owners. The search for copyright owners may be simple, or it may be a major detective adventure. For example, an early Philadelphia newspaper merged with a competing paper. The surviving company later went out of business. Its remaining assets--including copyrights--ended up in the hands of an oil company in Jackson ville, Florida. Writing to a newspaper should be easy, but not after several generations of corporate transition. Journals also change names and are sold to different publishing houses. You need to find the current owner. The original author of a work might have retained the copyright, but the author might also be dead. Copyright may be devised by the author's will, but few wills specifically mention copyrights. So the copyrights pass to some relative or other beneficiary who may have no idea that he or she has inherited the rights at all. This situation is most common when working with unpublished manuscripts and correspon dence. Consult with the manuscript curator or archivist for names of owners or relatives. The library's ownership of the documents does not necessarily include ownership of the copy rights. Newspaper obituaries may also name surviving family members. You may find yourself calling on unsuspecting descen dants for information and permissions. Be prepared for some curious and seemingly bewildering exploits. Be prepared to explain clearly your reason for calling or writing. Throughout this process, the telephone can be your most efficient ally. Before sending any letter, call to confirm the address and the name of someone to address personally. Call to be sure you have found the current copyright owner. Call to be sure your recipient understands the copyright issues and will cooperate in granting permission. If permission will eventually be denied, better to learn early. You might also find that the copyright owner has a preferred permission form, instead of using your form. Although some publishers discourage calls, a few long- distance calls can ordinarily relieve much uncertainty, focus your quest, and ultimately save enormous time and energy. You will also find that some copyright owners will quickly give permission over the telephone. Graciously accept their genero sity, but confirm the conversation with a permission letter that asks for the grantor's signature. The written permission can eliminate possible disagreements, and UMI and other publishers will need the documentation. Writers are constantly plagued by silence from copyright owners. You make your best efforts to obtain permission, you send the proper letter, and you hear nothing. Begin sending your letters four months or more before filing the dissertation; send a reminder request each month until you have a response. Send your letters certified mail, requesting a return receipt, if you doubt they are being received. Most authors and publishers will understand your request and give a prompt answer. But remember: copyright owners have no obligation to respond. They have no obligation to grant or deny permissions or to offer any explana tion. If you do not get permission you face some difficult choices. You might delete, rewrite, or reduce that portion of your dissertation to remove the potential infringement. Consult with your faculty advisor about the appropriate action and the relative importance of the material for your dissertation. Copyright owners may also request a fee for the permission- -ranging from nominal to prohibitive. You need to decide whether the use of the material is sufficiently important to justify the fee. Submit copies of your permission letters when filing your dissertation, and be sure to keep copies for your records. Common courtesy means thanking the grantors in an acknowledgment section of your dissertation. Copyright owners may also dictate a credit line to include with the reprinted material. You should also send a letter of thanks to each grantor, and let them know how they might purchase a copy of the dissertation from UMI. Few people will expect you to give a copy of the dissertation in exchange for the permission, unless their consent was imperative for conducting your study. PART V: PROTECTING YOUR COPYRIGHT Like every new Ph.D., you no doubt hope your work will influence future research. You would probably be honored to have someone quote from your dissertation, but you would likely appreciate at least a simple request for permission before anyone reprints lengthy excerpts. You also would probably like to promote sales of your dissertation, and you might spend a few more years revising your study for publication as a book or as one or more journal articles. Your writing is the product of your intellect, and copyright law now gives you the exclusive privileges. You have the opportunity to promote scholarly work both by protecting your dissertation and by granting rights of use to others. Remember that copyright privileges now vest immediately upon creating your work, without the requirement of notice or registration formalities. But you should nevertheless include a copyright notice on your dissertation. It signals to readers that you acknowledge your legal rights and that you are the copyright owner. It also tells the year you first published the project. Typical copyright notices take this form: Copyright 1995 Jane Student or 1995 Jane Student The notice must appear in a conspicuous location, customarily just after the title page. You might see additional language and other explanations about rights and restrictions in various other publications. These supplemental statements are strictly optional and are not part of the Copyright Act. Their legal effect might also be dubious, although a few countries give legal significance to the phrase "All Rights Reserved." Some publica tions, especially scholarly journals from non-profit organiza tions, include statements specifically granting rights of copying for educational purposes, enabling some users to exceed fair use without further permission. Unless you have good advice and have considered fully the implications of these provisions, you should keep your copyright notice simple. Registration is also optional, but still recommended. It establishes a public record of your dissertation, the copyright, and your name and address. At least for American publications, registration is required before you can file an infringement lawsuit. You should therefore register before that possibility ever arises--then hope it never does. Timely registration also bestows additional legal rights, particularly the ability to receive "statutory damages" and attorneys' fees in an infringe ment action. Those remedies may easily be your sole monetary award from an infringer, as in the Marcus v. Rowley case described above. You may secure your right to make those claims only by registering within three months after the date of first publication. One final reason for registration is the possibility of your dissertation joining the Library of Congress collection-- a flattering prospect indeed. Generally two copies accompany the registration application, and they may eventually be added to the Library's collection. If your work is not registered, you may still have to submit the copies. Thus, early registration secures your rights and satisfies the deposit requirements. You may register your copyright yourself by filing the appropriate forms. Appendix B lists various materials from the Copyright Office to guide you. You may also allow UMI to prepare the registration forms on your behalf. UMI's instructions for submitting dissertations describe the registration service. Consult with your faculty advisor and your graduate dean if you have any unusual complications in claiming ownership to your dissertation's copyright. For example, are you actually a co- author of the dissertation with another student or faculty member? Did you receive support from a foundation or the university? Some funding sources may claim ownership of the resulting copyrights. Review the terms of your grant and your university's copyright ownership policies. Does your disserta tion reprint material that you published elsewhere? If you had earlier published portions of the dissertation as an article, for example, you may have assigned the copyright to those portions to the publisher. Consult your publishing agreement and the journal editors. CONCLUSION Much of this manual has been a somewhat technical overview of the law and a series of elaborate procedures for compliance. You may have the impression that copyright is one more legal drudgery, with tedious obligations and specious benefits. Compliance may have all the charm and attraction of completing an income tax return. But you need to keep the spirit of the law in mind. The United States Constitution empowers Congress to enact copyright laws to "promote the Progress of Science and useful Arts." The law gives you rights of ownership over your creative works, ideally to encourage their development and publication. Your exclusive rights are intended to foster your creative energies. The same law also gives rights of fair use. No intellectual achievement occurs in a vacuum. All new creativity builds on the efforts that have gone before. Fair use is intended to further those essential gains without stifling the original author's incentives. No one has drawn absolute lines around the scope of fair use, and not everyone will agree whether the law serves its purpose. Yet the copyright system is an important attempt to spearhead greater intellectual accomplishment. Keep in mind not only its rigors, mandates, and procedures, but its opportunities and encouragement as well. Let copyright be a part of your new contributions to scholarship. APPENDIX A: SAMPLE PERMISSION LETTER * * * * * * * * * * * * * * * * * * * * * * * * * * * * [letterhead stationery or return address] [Date] [Name and address of addressee] Dear _______: [Optional beginning sentence: This letter will confirm our recent telephone conversation.] I am completing a doctoral dissertation at __________ University entitled "__________." I would like your permission to reprint in my dissertation excerpts from the following: [Insert full citation to the original work.]t The excerpts to be reprinted are: [Insert detailed explanation or attach copy] The requested permission extends to any future revisions and editions of my dissertation, including non-exclusive world rights in all languages, and to the prospective publication of my dissertation by University Microfilms, Inc. These rights will in no way restrict republication of the material in any other form by you or by others authorized by you. Your signing of this letter will also confirm that you own [or your company owns] the copyright to the above-described material. If these arrangements meet with you approval, please sign this letter where indicated below and return it to me in the enclosed return envelope. Thank you very much. Sincerely, [Your name and signature] PERMISSION GRANTED FOR THE USE REQUESTED ABOVE: __________________________ [Type name of addressee below signature line] Date: ____________________ Instructions for permission letters: 1. Be sure to include your return address, telephone number, and the date at the top of the letter. 2. Spare no effort in confirming the exact name and address of the addressee. Call the person to confirm the copyright ownership. 3. State clearly the name of your university and your dissertation's title. 4. Describe precisely the proposed use of the copyrighted material. If necessary or appropriate, attach a copy of the quotations, diagrams, pictures, and other materials. If the proposed use is extensive, such as the general use of an archival or manuscript collection, describe it in broad and sweeping terms. Your objectives are to eliminate any ambiguities and to be sure the permission encompasses the full scope of your needs. 5. The sample signature form at the end of the sample letter is appropriate when an individual grants the permission. When a company, such as a publishing house, is granting permission, use the following signature format: PERMISSION GRANTED FOR THE USE REQUESTED ABOVE: [Type name of company] By: __________________________ Title: _______________________ Date: ________________________ APPENDIX B: FURTHER READING AND GUIDANCE Goldstein, Paul. Copyright: Principles, Law and Practice. 3 vols. Boston, MA: Little, Brown and Co., 1989 (with annual supplements). Johnston, Donald F. Copyright Handbook. Second edition. New York: R.. Bowker Co., 1982. Nimmer, Melville B. and David Nimmer. Nimmer on Copyright 5 vols. New York: Matthew Bender, 1992 (with periodic supple ments). Patry, William F. Fair Use Privilege in Copyright Law. Washington, D.C.: Bureau of National Affairs, Inc., 1985. Polking, Kirk, ed. The Writer's Friendly Legal Guide. Cincin nati, OH: Writer's Digest Books, 1989. Strong, William S. The Copyright Book: A Practical Guide. Fourth edition. Cambridge, MA: The MIT Press, 1992. The U.S. Copyright Office offers a wealth of information "circulars" and registration forms. Call the forms hotline day or night at (202) 707-9100 to request copies. The following items may be of greatest interest: Form TX Registration application for published and unpublished non-dramatic literary works Form VA Registration application for published and unpublished works of the visual arts (pictorial, graphic, and sculptural works) Circular R1 Copyright Basics Circular Selected Bibliographies on R2b Copyright Circular R6 Obtaining Copies of Copyright Office Records and Deposits Circular Mandatory Deposit of Copies R7d or Phonorecords for the Library of Congress Circular Duration of Copyright R15a Circular Reproduction of Copyrighted R21 Works by Educators and Librarians Circular How to Investigate the R22 Copyright Status of a Work Circular The Copyright Card Catalog R23 and the Online Files of the Copyright Office Circular International Copyright R38a Relations of the United States Circular Copyright Registration for R61 Computer Programs ABOUT THE AUTHOR Kenneth D. Crews is a professor of business law in the College of Business at San Jose State University. He received a Ph.D. from the University of California, Los Angeles in 1990. His dissertation, a study of copyright policies and fair use at American research universities, earned awards from both the Association for the Study of Higher Education and the Association of College & Research Libraries. Prof. Crews also studied history as an undergraduate at Northwestern University and received a law degree from Washington University in St. Louis. He began practicing law in California in 1980. _______________________________ 1 Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). For commentary on the Kinko's case and its significance for education, see Kenneth D. Crews, "Federal Court's Ruling Against Photocopying Chain Will Not Destroy 'Fair Use'," Chronicle of Higher Education, April 17, 1991, p. A48. 2 See, for example, Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967). 3 Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962). 4 Rohauer v. Killiam Shows, Inc., 379 F.Supp. 723 (S.D.N.Y. 1974), rev'd on other grounds, 551 F.2d 484 (2d Cir. 1977), cert. denied, 431 U.S. 949 (1977). 5 Sinkler v. Goldsmith, 623 F.Supp. 727 (D.Ariz. 1985). 6 Broderbund Software, Inc. v. Unison World, Inc., 648 F.Supp. 1127 (N.D. Cal. 1986); Trebonik v. Grossman Music Corp., 305 F.Supp. 339 (N.D. Ohio 1969); Holdredge v. Knight Publishing Corp., 214 F.Supp. 921 (S.D. Cal. 1963). 7 Rubin v. Boston Magazine Co., 645 F.2d 80 (1st Cir. 1981). 8 Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991). 9 Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991). 10 695 F.2d 1171 (9th Cir. 1983). 11 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987). 12 Despite criticism of the decision, the principles were reaffirmed by the same court in New Era Publications Inter national, ApS v. Henry Holt and Company, Inc., 873 F.2d 576 (2d Cir. 1989), cert. denied, 110 S.Ct. 1168 (1990). 13 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). 14 Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991). 15 This brochure focuses only on copyright, but some uses of pre- existing materials may raise other legal concerns as well, such as privacy, defamation, and misappropriation. Consult your faculty advisor or campus legal counsel for guidance on these issues. 16 For insightful and instructive essays on the difficulty of quoting lyrics to popular songs, see John Shelton Lawrence and Bernard Timberg, eds., Fair Use and Free Inquiry: Copyright Law and the New Media, 2nd ed. (Norwood, NJ: Ablex Publishing Corporation, 1989), pp. 37-50. .