Copyright Basics - ACS Publications - American Chemical Society

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Copyright Basics Karen S. Buehler, C. Arleen Courtney, and Eric S. Slater

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opyright law is a cornerstone of intellectual and scientific exchange. This chapter is intended to introduce a complex and constantly changing legal area; we do not intend to provide legal advice. The first section is an overview of U.S. copyright law: what materials are subject to copyright, who owns copyright, and when copyrighted materials may be used by others. The second part of the chapter presents the methods of obtaining permission to use someone else’s copyrighted work. The third part briefly explains how copyright is transferred from the author to the publisher.

U.S. Copyright Law What Can Be Copyrighted Copyright is a doctrine of federal law (Title 17, U.S. Code) and is defined as a form of intellectual property law that protects original works of authorship fixed in a tangible medium of expression for a specified period of time. A tangible medium of expression is something that can be seen, touched, or heard (see the examples below). Copyright applies to all media of expression, including print, the Internet, CD-ROM, and videotape. Copyright allows authors and creators certain rights to protect their original works. Copyright law protects both published and unpublished works.

The authors wish to thank Barbara F. Polansky and William J. Cook for their time in reviewing and commenting on this chapter. Copyright 2006 American Chemical Society Coghill and Garson; The ACS Style Guide The ACS Style Guide; American Chemical Society: Washington, DC, 2006.

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➤ The ACS Style Guide


Copyright applies to a variety of works including the following: • • • • • • • • •

literary works (including scientific works and computer programs); musical works (including lyrics); dramatic works (including accompanying music); pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works; and compilations and databases to the extent that they reflect originality in the selection and arrangement of elements.

What Cannot Be Copyrighted Copyright does not protect the following: • Works not fixed in a tangible form of expression. Copyright does not protect ideas, only the fixed expression of ideas. Thus a thought, not written down in any way, is not protected. • Titles, names, short phrases, slogans, familiar symbols, or designs. (These items may be protected under trademark or service mark laws.) • Lists of ingredients, contents, or facts. • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, and devices. (These items may be protected under patent law.) • Standard calendars, rulers, lists, or tables taken from the public domain and other works containing no original authorship.

Who Owns the Copyright The copyright owner is the author or creator of the original work. An original work can be in the form of an article, photograph, illustration, figure, table, etc. Copyright does not protect ideas, only the actual expression of the ideas. Therefore, the copyright owner is the person who drew a figure or table on a computer and saved it, or took a photograph (the subject of the picture is not the copyright owner), or wrote a narrative on a piece of paper. There are two exceptions when the author or creator of the original work is not the copyright owner: (1) when the copyright was transferred in writing to another person or entity (usually via a copyright status form) and (2) when the work was created as a work-made-for-hire. In a work-made-for-hire situation, employees create the work within the scope of their employment; therefore, the copyright owner is the employer. The employer may be an individual, corporation, or university. The above two examples represent typical scenarios when publishing scientific or scholarly works. Work-made-for-hire can also cover, among other specified categories, independent contractor situations under certain conditions and if the parties have agreed in writing.

Coghill and Garson; The ACS Style Guide The ACS Style Guide; American Chemical Society: Washington, DC, 2006.

Chapter 7: Copyright Basics

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Box 7-1. Copyright at ACS Each division of the ACS is responsible for copyright issues related to material that appears in its publications. The ACS Copyright Office can assist ACS authors and editors with copyright issues pertaining to materials published by the ACS Publications Division. The e-mail address is [email protected]. The mailing address is American Chemical Society, Copyright Office, 1155 Sixteenth Street, NW, Washington, DC 20036. The fax number is 202-776-8112, and the telephone number is 202-872-4368 or 4367. Contact other ACS divisions directly for permission to use their material. For specific advice regarding copyright matters, it is best to seek legal counsel.

Rights of the Copyright Owner The copyright owner can be described as controlling a “bundle” of stated rights. The copyright owner (whether an individual, a corporation, or a publisher) retains certain exclusive rights in the work. The bundle of rights includes • • • •

reproducing copies of the work; distributing copies of the work to the public; creating derivative works based on the work; performing the work publicly (for certain types of works) and, in the case of sound recordings, by digital audio transmission; and • displaying the work publicly (for certain types of works). Most scientific and scholarly publishers require authors (or their employers) to transfer copyright as part of their publication agreement. The ACS Publications Division requires authors (or their employers) to transfer copyright to the American Chemical Society, although some rights are transferred back to the authors (or their employers). For specific information regarding transferring copyright to ACS and authors’ rights, see http://pubs.acs.org/copyright_info. html or contact the ACS Copyright Office (see Box 7-1).

Copyright Notice A work is protected by copyright even if it does not contain a formal copyright notice (the word “copyright”, abbreviation “copr”, or symbol © with the year of first publication and name of copyright owner). It is strongly recommended to place a copyright notice in or on a work, thereby giving notice that someone controls the rights to that work. Registration of a work with the U.S. Copyright Office is not necessary to obtain copyright protection, although there are substantial


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benefits to doing so. For more information about copyright registration, contact the U.S. Copyright Office at 202-707-5959, or at http://www.copyright.gov/. The U.S. copyright law also provides remedies for infringement. Authors should contact the appropriate book or journal editor in cases where they believe their work has been infringed upon. If a copyright owner (in the case of an ACS publication, the ACS) believes that his or her work has been infringed upon, it is the responsibility of the copyright owner to bring action.


Fair Use The U.S. copyright law contains limitations on rights granted to the copyright owner. Probably one of most misunderstood of these limitations is fair use. Essentially, fair use permits certain actions that might otherwise infringe upon an exclusive right of the copyright owner. It has been our experience that the interpretation of what constitutes fair use can vary widely. For instance, a copyright owner’s interpretation may be very narrow; a party looking to take advantage of fair use will interpret it broadly. Using excerpts from works for the following purposes may qualify as fair use: • criticism or comment; • news reporting; • teaching (but only in a spontaneous situation. If one knows in advance that copyrighted material will be used in a class, permission must be obtained.); and • scholarship or research. (Private researchers and nonprofit employees may make one photocopy of an article for their own research purposes only.) These uses may not constitute copyright infringement. The determination of whether a use is fair depends on the facts in each case. Even if the facts are virtually identical, one degree of minutiae can cut against fair use. The U.S. copyright law provides four factors that must be considered in determining whether any particular use is fair use. Courts weigh the four factors against each other, and no one factor is determinative in every case. The four factors are the following: 1. the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; 2. the nature of the work; 3. the amount and substantiality of the portion used in relation to the work as a whole; and 4. the effect of the use in question on the potential market for or value of the work. There are no numerical guidelines or percentages that can be used for each situation where fair use might be involved. Even one percent of a work used in a



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manuscript may be determined to be against fair use if the material is considered the most important part or the heart of that work. Fair use is a defense, and a strong argument must be made that the use is actually fair. Never assume that a use is a fair use; it is always best to seek permission to avoid potential and sometimes costly problems.

✐ Reminder: Never assume that a use is a fair use; it is always best to seek Downloaded by UNIV OF TEXAS AT ARLINGTON on October 16, 2017 | http://pubs.acs.org Publication Date: June 1, 2006 | doi: 10.1021/bk-2006-STYG.ch007

permission to avoid potential problems.

Public Domain and U.S. Government Works Works that are in the public domain are not protected by copyright. The following are situations in which a work can have public domain status: 1. works published before 1923 whose copyright term has expired (see the section called “Duration of Copyright”), or works for which copyright was not renewed; 2. works published before 1978 without a proper copyright notice; 3. works dedicated to the public domain by their creator, e.g., so-called shareware; and 4. works authored by U.S. government employees within the scope of their employment. Generally, it is not necessary to seek anyone’s permission to use public domain works. However, when using material that appeared in a U.S. government publication, check the caption or reference section to see if credit is given to a source for which permission is required.

✐ Reminder: Even though material in a U.S. government publication

generally does not require permission to reproduce it, sometimes government publications include material that is protected by copyright. Always check the caption or reference section to determine whether you need to obtain permission to reproduce it.

Common Misconceptions about Copyright One misconception about copyright status involves material found on Internet Web sites. Someone does own copyright to the material on a Web site, and it is necessary to obtain permission to reuse it. The lack of a copyright notice does not mean that the work is not protected, nor does it mean that a work is in the public domain or that the author of the work has waived his or her rights. Other misconceptions involve photographs. The individuals appearing in photographs are not the copyright owners. The photographer, or employer if


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the photo is a work-made-for-hire, is the copyright owner, and permission to reuse a photograph must come from the copyright owner. (Permission of people appearing in photographs may also be required by a publisher, but this is not a copyright issue. It is a privacy/right of publicity concern.) Another problem involves the use of photographs of old works of art. It may be true that the art itself is in the public domain (i.e., a van Gogh or Michelangelo painting). However, the photograph of the artwork is protected by copyright. In these cases, the copyright owner may not be an individual photographer but a museum or a historical society.

Duration of Copyright Under current U.S. copyright law, length of copyright is life of the author plus 70 years. For works-made-for-hire, length of copyright is 95 years from the date of first publication, or 120 years from the date of creation, whichever is shorter.

Copyright in the Electronic Age Several recent court cases have involved copyright infringement in electronic media. The legal disputes centered on which party controlled specific rights under the contractual arrangements authors had with publishers. A common thread to these cases is whether a publisher controls all rights to publish content in any format. Publishers and authors need to be aware of the rights they hold, either explicitly under the U.S. copyright law, or via a licensing arrangement. ACS requires complete transfer of copyright in all formats, thus allowing ACS to publish material in different formats. In cases where authors do not transfer copyright, publishers generally require a nonexclusive licensing arrangement. Here, the author retains copyright and grants certain rights to the publisher. Placing material on the Internet without authorization from the copyright owner is a copyright infringement, even if the publisher had permission to use the material in print. It is important to have a working knowledge of copyright law, and it is helpful to have some familiarity with contracts. Publishers and authors need to read contracts and copyright transfer forms thoroughly before signing and be certain that they understand what they are agreeing to. There are numerous Web sites containing copyright information. We recommend the following Web sites for accurate and up-to-date information, although this is by no means a complete list: • U.S. Copyright Office, http://www.copyright.gov/ • Association of American Publishers, http://www.publishers.org/ • American Chemical Society Copyright Learning Module, http://pubs.acs. org/copyright/learning_module/module.html



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Obtaining Permission To Reproduce Material


Whenever an author wishes to include a figure, a table, or a substantial portion of text that has already been published elsewhere (in print or on the Internet), the author must obtain permission from the copyright holder to reproduce the material. It is the author’s responsibility to 1. identify material in a paper or manuscript that has been previously published in print or on the Internet; 2. determine whether that material is subject to copyright protection; 3. if so, identify the copyright owner and request permission in writing; and 4. ensure that permission is granted and forwarded to the author’s publisher. The first two points are discussed at the beginning of this chapter. The second two points will be considered next in a general way applicable to requesting permission from any scientific or scholarly publisher. For information on how to reproduce materials from books, journals, or magazines published by the ACS Publications Division, see Box 7-2.

✐ Reminder: Material published on an Internet site is not necessarily in

the public domain, even if the site owner does not have a copyright notice on a Web page. If you download a photograph, illustration, chart, table, or text from a Web site, you must obtain permission from the copyright owner to use it in another publication. Bear in mind that the Web page publisher may not be the copyright owner.

Writing To Request Permission Once an author has identified the tables, figures, and text that require permission, the next step is for the author to write to the copyright owner to request permission. This is not a difficult task, but it requires some organization and attention to detail, and it may take several months for permission to be granted. Fortunately, the Internet has made the task less burdensome than it used to be because most publishers post their permission policy, forms, and contact information on the Web. Some publishers now have Web-based permission systems.

✐ Reminder: Bear in mind that a copyright owner is not necessarily a publisher. For example, images such as a company logo or a still shot from a movie or television commercial require permission from the corporate office or the motion picture studio or the advertising agency.

➤ Begin by organizing your materials requiring permission according to publisher and source. This way, you can list all materials from a single publisher and source on one form, reducing paperwork for yourself and the publisher.


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Box 7-2. Permissions at ACS Permission is needed to reproduce tables, figures, or text from books, journals, or magazines published by the ACS Publications Division. Permission is also needed if adapting or using part of a figure or table. Permission is not needed if using data from the text to create an original figure or table. When using a figure that appeared in an ACS journal and ACS owns copyright to that figure, permission is not needed to use it in a paper that will appear in the same or another ACS journal, although a credit line is required. The ACS permission policy and forms for ACS journals and magazines are available at http://pubs.acs.org/copyright_info.html and for ACS books, at http://pubs.acs.org/books/forms.shtml. An interactive form can be found at http://pubs.acs.org/cgi-bin/displaycopyright?bichaw. Permission requests to reproduce materials from the books, journals, and magazines of the ACS Publications Division should be directed to the ACS Copyright Office. All permission requests must be in writing. The ACS Copyright Office accepts permission requests via e-mail, mail, and fax. Permission is granted only by fax or by mail, so it is important to include a fax number. The Copyright Office e-mail address is [email protected]. The mailing address is American Chemical Society, Copyright Office, 1155 Sixteenth Street, NW, Washington DC 20036. The fax number is 202-776-8112, and the telephone number is 202-872-4368 or 4367.

➤ Determine whether the publisher has permission-request information on the

Web and, if so, download or print out the appropriate request forms. (Even if the publisher has a Web-based permission system, you might want to print out the blank form, so you can be sure that you have collected the necessary information when you fill it out online.) ➤ If the publisher does not have forms on the Web, then draft a letter requesting permission. Be sure to include the elements listed in Box 7-3. ➤ List all the material for which you need permission from a given publisher on

one form or on the form with an attachment. Unless the publisher specifically directs differently, avoid submitting one form for each item requiring permission. ➤ Include your specific deadline date by which you wish to have the permission

granted.



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Box 7-3. Components of a Permission Request


Your request for permission to reproduce material will be processed more quickly by a publisher if you provide all the necessary information on the publisher’s form or in a request letter. A permission request should provide the following information: 1. A list of the original figure or table numbers for each figure or table that you wish to reproduce from a given source, along with a complete reference citation for the source. • The reference citation for a journal article should include the name(s) of the author(s); the name of the journal; the month, day, and year of publication; volume and issue numbers; and inclusive page numbers for the article. • The reference citation for a book should include the title of the book (and series name and number if applicable); the name(s) of the author(s) or editor(s); the year of publication; and the page numbers on which the original figures or tables appear. If appropriate, also list the title of the chapter, the name(s) of the chapter author(s), and the inclusive page numbers for that chapter. 2. A description of where the material will be published. Include the title of the forthcoming publication, the type of publication (e.g., journal, book, magazine, or Web journal), and the name of your publisher. 3. A list of the formats in which the requested material will appear, such as print, online, CD-ROM, or proceedings. Unless all rights are requested, only print rights will be granted. 4. Your complete mailing address, e-mail address, and telephone and fax numbers. 5. A specific deadline (calendar date). Many permission request letters also include a space for the original publisher to specify the publisher’s preferred credit line.

➤ Include complete contact information for yourself, including a mailing

address, e-mail address, and telephone and fax numbers. ➤ If you do not have a response from the copyright owner in a reasonable amount of time, contact the publisher again and try to determine the reasons for the delay; perhaps your request was not received or was missing information. Do


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not assume that you have permission unless you have heard explicitly from the publisher, even if you set a deadline. What Sort of Credit Line Is Appropriate?


➤ Once the publisher has granted permission to reproduce materials, incor-

porate the required copyright credit line into your manuscript. This credit line notifies readers that the publisher owns copyright to the material. Each publisher has its own style for credit lines. For example, the credit line required by the ACS is shown below: Reprinted with permission from REFERENCE CITATION. Copyright YEAR American Chemical Society. (Insert the appropriate information in place of the capitalized words.)

➤ Include the credit line on the first page where copyrighted text appears and

under each copyrighted table or figure. ➤ If you are adapting or modifying copyrighted material or if parts of copy-

righted material are being used, the words “Adapted” or “Reprinted in part” should replace “Reprinted” in the credit line.

Transferring Copyright Most scientific and scholarly publishers require the transfer of copyright ownership as part of the publication agreement between the publisher and authors. When the publisher owns copyright, it removes the burden from authors to grant permission and it assures them that only legitimate requests for their material are approved. Similarly, if the publisher owns copyright, it is easier for authors who are seeking permission to come to one source that handles requests from multiple references and processes them quickly. If individual authors owned copyright, it might be difficult and cumbersome to contact authors for permission to use their works or portions of their works. If you are in doubt about a publisher’s requirements, contact the publisher or seek legal advice. Each publisher has forms for transferring copyright to the publisher, and the submission of a completed copyright transfer form is nearly always necessary before a publisher will schedule publication of or begin production work on a manuscript. When authors publish in an ACS publication, they assign copyright interest via the ACS Copyright Status Form. This form is available on the ACS Publications Division Web site at http://pubs.acs.org/cgi-bin/displaycopyright?bichaw and in the January issues of ACS journals. Authors publishing books with ACS will find a form at http://pubs.acs.org/books/forms.shtml. Completed Copyright Status Forms should be submitted to the appropriate book or journal editor, not the ACS Copyright Office.


Copyright Basics - ACS Publications - American Chemical Society

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