|Lesson 1: Copyright Law|
As a publishing physician or other biomedical professional, you may feel as though you have been thrust into the role of multimedia producer and publisher. In this expanded role, you are expected to understand and apply the rules of copyright law to the text, images, sound, and graphics incorporated into your work. Attention to detail and meticulous referencing of copyrighted materials will ensure your works meet the high standards of copyright law. Should you as a publishing physician fail to address copyright issues, you may discover that you do not have clear title to your own work.
What is Copyright?
Copyright is a form of protection provided by laws of the United States for original works of authorship that are fixed in a tangible medium of expression. Copyright literally means the right to copy; however, the term has come to include the body of exclusive rights granted by law to authors for protection of their work. The owner of copyright has the exclusive right to (1) reproduce, distribute, prepare derivative works based on the copyrighted work, and, in the case of certain works, publicly perform or display the work or (2) license others to engage in the same acts under specific terms and conditions. Copyright law allows for enrichment and cultural output for the nation by providing protection for first-time authors and publishing companies alike.1
Who Owns the Copyright?
Under copyright law, the creator of the original work is the author of the work and is considered the owner of the copyright; however, the author may assign the rights to another party or publication. Most biomedical journals, including the Texas Heart Institute Journal, require the author to transfer copyright of the material to the journal should it be published.2 If, in the future, the author chooses to use tables, etc. from his own work or make copies of the work for distribution, he must obtain permission from the publishing journal, even though he is the author of the article.
The following is an excerpt outlining the Texas Heart Institute Journal’s guidelines for copyright:
The Texas Heart Institute Journal is a copyrighted publication. No textual matter, tables, or figures may be copied for republication, electronic transmittal, or storage without the written permission of the Executive Editor, nor may it be used in addresses, seminars, or symposia without such permission. Persons engaged in research may make single copies for personal use when this activity falls within the definition of "fair use" as set forth in U.S. Copyright Law. These copies may not be sold, used for advertising purposes, nor incorporated into new works. Multiple copies for hospital or classroom use are permitted, as long as written permission is obtained in advance from the Executive Editor.3
What is Copyrightable Material?
There are very few standards for determining which works are copyrightable. The copyright law states that any original work of authorship may be copyrighted. A copyrightable work is not required to be cutting edge or of a certain quality to be considered original. The requirements for originality are any work designed or developed by the author that has not been copied from a preexisting work. Such latitude in the law encourages authors to create and produce freely, knowing that their life’s work will be their own to publish or leave unpublished as they desire. In the biomedical field, an author is someone who has made substantial contributions to a publication or study.2
An author may incorporate materials from other sources and still have his/her work considered original; however, authors are reminded that only the original portions of their work may be copyrighted. Works of authorship that may be copyrighted include literary works; musical works (including accompanying words); dramatic works (including accompanying music); pantomimes and choreographic works; motion pictures and other audiovisual works; pictorial, graphic, and sculptural works; sound recordings; and architectural works. For a list of categories, please refer to the section "What works are protected?" on the U.S. Copyright Office website, .
Copyright Notice. While the use of a copyright notice is no longer required under US law for protection, use of a copyright notice on the work is important because it informs the public that the work is protected, i.e., copyrighted. The notice should contain the following three elements:
1) Symbol © (letter c in a circle), word copyright, or abbreviation Copr.;
2) Date/year of first publication; and
3) Name of the copyright owner.
Example: © 2009 Texas Heart Institute
What Constitutes Fair Use?
In an academic setting, faculty and students often unintentionally abuse the fair use doctrine. It is important for you to understand the limits of the doctrine as it applies to scientific writing and educational use.
In scientific writing, you apply the fair use doctrine when you reference, quote, copy, or reproduce small amounts of others’ work. You are using that material in a fair and reasonable manner, without permission from the author or copyright owner. Remember, however, that copying material directly is considered plagiarism unless the copied material is placed in quotation marks and referenced properly.
In an educational setting, use of limited amounts of copyrighted material is considered acceptable only if it is confined to a specific number of students in a given institution for a limited period of time, and the author has been appropriately referenced. The fair use provision does not designate a specific number of words or lines that must be adhered to in order to stay within the limits of the doctrine. The following guidelines taken from the fair use doctrine (§107 of the 1976 Copyright Act) should help you when you choose to incorporate original works by others into your own materials.
- Consider the purpose of the use and the character of your work. Are parts of the original work being used for commercial gain, or are they being used for nonprofit educational purposes?
- Consider the nature of the copyrighted work. Is the original work fact or fiction, published or unpublished? Borrowing from a copyrightable unpublished work is risky.
- Consider the quantity of the work you need to use. What proportion of the original work will you be using? Always use the least amount of copyrighted material necessary to explain your topic.
- Consider what effect your use of the material will have on the original work. Will you decrease the value of the original work by incorporating it into your work? Will the new work replace the original, thereby decreasing its value?
When determining whether to use excerpts from another work, consider the fair use factors as the courts do. The courts weight all four factors when rendering a judgment. No one factor outweighs another when considering fair use. Always keep in mind that it is the right of the original author to decide when and how her/his work is used/published.
What Distinguishes Fair Use from Copyright Infringement?
Most authors are concerned about the fine line between fair use and copyright infringement. The doctrine was judiciously developed to balance the public’s need for information against the incentive for authors to create and publish their works. Thus, it is understandable that authors take a more restrictive view of what is fair use and users of copyright materials take a more expansive view.5
In the case of criticism and comment, parody and satire, scholarship and research, news reporting and education, the copyright law provides for fair use without fear of copyright infringement. Authors should take care to not quote sources out of context, thereby changing the meaning of the original text. Always give appropriate credit to the original source.
One of the most important rules to remember about fair use and copyright infringement is that proper referencing or attribution does not protect you from copyright infringement if you violate the fair use doctrine.
How does Copyright Apply to Multimedia Materials?
Graphics, illustrations, and clip art
Have you ever used a cartoon on an opening slide to gain the audience’s attention or to make a point? Did you obtain the artist’s permission to use the work? If not, you violated the author’s right to reproduce and distribute his work. Copyright law covers cartoons and comic strips, as it does any other original work. The protection also covers any written expression contained in the work. The protection does not extend to the title or general theme of the cartoon; therefore, you are free to design or draw your own interpretation of the original theme.
“Free” clip art poses its own dilemma, and limitations. Authors should take careful note of the licensing agreement related to its use. Most free clip art is limited to noncommercial use or to “limited public performances.” An author planning to publish a work for widespread circulation is best served by obtaining permission from the publisher or by purchasing a license for any graphics included in the work.
Photographs, video, and digital images
Photographs, video, and audio made by in-house photographers or videographers are owned and copyrighted by the house. Photographers who work as independent contractors or on assignment own the copyright to the photographs, unless “the client receives assignment of the copyright, or the photograph was made as a specially commissioned work for hire.”6
Copyright and modification of digital images and graphics
We have all heard that if you make certain changes to a photograph or graphic, the copyright is no longer valid. However, we must remember that copyright law gives the author or owner of the work the exclusive right to modification. Manipulating a photograph or graphic and thus “creating a derivative work”7 does not constitute legal ownership of the new work. If you wish to use a photograph or graphic that belongs to someone else, you must get permission from the publisher or the author. In most cases, the copyright belongs to the publisher, but if the author still holds the copyright, the publisher will notify you. Many publishers provide online permission forms to help streamline the process.
Digital images (photographs, slides, scans, and radiographs) lead to some of the most interesting and perplexing copyright issues. For example, once an image has been digitized, it can be enhanced or manipulated such that it is difficult to determine what the original looked like or to whom the original belonged. For this reason, many photographers and graphic artists are reluctant to grant permission or license their works for use in multimedia projects. They realize that alteration and redistribution of their images is common, and they often do not receive due credit or compensation for their creative work.
Most journals have guidelines concerning enhancement and manipulation of digital images, and they will usually require a copy of the original image and the name of the software used to enhance it. In an article in the Office of Research Integrity Newsletter, journal editors expressed concern about the ease of manipulating images. The editors felt the adjustment of brightness, contrast, and color balance should only be acceptable if the entire image is corrected and that changing any one part of the image is unacceptable. It is now common for journals to require a symbol be placed on a digitally enhanced or altered image to inform the reader of the alteration. In some online publications, the symbol is a link to the original image.8
What is Not Copyrightable?
Several categories of works are not copyrightable, i.e. not eligible for federal copyright protection: works in the public domain; US federal government works; nonoriginal works; facts; ideas, systems, and processes; and common knowledge. Permission is not required to copy, distribute, or use these works, although the original source should be given.
Works in the public domain are not protected by copyright and can be freely used by anyone. Works can pass into the public domain in several different ways:
• the copyright term expires,
• the copyright holder failed to renew the copyright per statutory deadlines (applies to works published in the US during the years 1923-1963),
• the work failed to meet the statutory formalities for copyright protection (applies to works published in the US between 1923 and March 1, 1989),
• the work was published in the US prior to 1923.
Authors should be aware that public domain rules vary from country to country.
Examples of works in the public domain are:
Aesop’s Fables, The Complete Works of Shakespeare, and
The Adventures of Tom Sawyer.
If you would like to see more works in the public domain visit the following website: www.pdimages.com/stories.htm.
US federal government works
Any work produced by the US federal government is available for free use. One does not need to use the phrase “used with permission” when referencing federal government sources. However, works produced by state and local governments are not considered public domain and are eligible for copyright. Free use of government materials does not extend to works produced by the national governments of other countries. A note of caution: Make certain that the work being cited was authored by the US federal government; many times other organizations are involved in producing these works as well. In this case, the organization must be given credit also.
Facts are never copyrightable. Even if an author uncovers a previously unknown fact and decides to include it in his/her work, only the original portions of the work, excluding the newfound fact, are eligible for copyright.
Barnard performed the first human-to-human orthotopic heart transplant in 1967. [This is a fact and does not need to be referenced.]
Ideas, systems, and processes
Although copyright law does not protect ideas, systems, or processes, it does protect the expression of an idea. The difficulty lies in determining where the idea and the expression of that idea differ.
The first physician who had the idea of repairing the heart by surgical means could not copyright his idea; however, he could copyright his description or his expression of that idea in an authored work.
In 1956 Dr. Denton Cooley performed his first carotid endarterectomy for carotid stenosis. He was concerned with the possibility of neurologic damage from temporary carotid artery occlusion. He decided that the operation should include some means to protect the brain. “I decided that we would attempt some external cooling of the brain by immersing the patient’s head in a tub of cracked ice at the time of the operation.” Hypothermia had been used for open-heart surgery but rarely for other types of surgery. As a result, in time, the patient fully recovered and returned to active retirement. Cooley, Al-Naaman and Carton reported the first successful carotid endarterectomy case in the Journal of Neurosurgery in September 1956.9 [The idea of cooling the patient during surgery could not be copyrighted; however, the expression of that idea was copyrightable.]
Common knowledge is information known by most people and found in many places. It does not require a reference, unless the knowledge was borrowed from a source that contains phrases or words specific to that source or is being interpreted.10 Much like expression of an idea, copyright protects the author’s expression of information considered to be common knowledge.
The heart has four chambers. [This is considered common knowledge and does not need to be referenced.]
If the publishing physician takes one idea from the overview of copyright law presented in this course, it is hoped that it will be the need for accurate referencing and an increased understanding of the rights of the author or owner of a work.
Continue to Lesson 2
Return to Course Materials page