THE CENTER FOR LANGUAGE STUDY RESOLVING COPYRIGHT ISSUES FOR LANGUAGE FACULTY

The Answer to All Questions Pertaining to Copyright and the Scope of Protection ~ “IT DEPENDS”

Role of the CLS  Work with foreign language faculty  Assist them in preparing multimedia instructional materials  Combine audio and video materials with photos and artwork

 Some materials are original faculty creations  Most reproduce works created by third parties

CLS COPYRIGHT HANDBOOK  Obtaining copyright protection for original faculty works  Assisting faculty in using the materials of others in multimedia presentations

WORKS CREATED BY LANGUAGE FACULTY Copyright vests in person who creates a work fixes it in a tangible mode of expression

Creator of a Work Does Not Always Own the Copyright  Work created during the ordinary course of employment  work made for hire owned by the employer, absent any agreement to the contrary

Yale does not claim ownership of scholarly works Yale retains ownership of works:  created as part of assigned task; or  for which it has committed substantial university resources

What if someone other than the faculty member contributes original material to the work?  that person owns copyright in this contribution  faculty member must obtain assignment of copyright from creator of this contribution

ASSIGNMENT OF COPYRIGHT FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby acknowledged [INSERT NAME OF AUTHOR] ("Assignor"), located at [INSERT ADDRESS OF AUTHOR], hereby irrevocably transfers and assigns to Yale University, a Connecticut not-for-profit corporation (“Assignee”), located at 105 Wall Street, New Haven, Connecticut 06520, its successors and assigns, in perpetuity, all right, title, and interest, throughout the world, including any copyrights and renewals or extensions thereto, in a work titled [INSERT TITLE AND/OR SHORT DESCRIPTION OF WORK, TOGETHER WITH REGISTRATION NO. IF REGISTERED IN THE U.S. COPYRIGHT OFFICE]. IN WITNESS THEREOF, Assignor has duly executed this Agreement. Dated: ___________________________________ Name: [Print Name of Assignor]

ASSIGNMENT OF COPYRIGHT FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby acknowledged [INSERT NAME OF AUTHOR] ("Assignor"), located at [INSERT ADDRESS OF AUTHOR], hereby irrevocably transfers and assigns to Yale University, a Connecticut not-for-profit corporation (“Assignee”), located at 105 Wall Street, New Haven, Connecticut 06520, its successors and assigns, in perpetuity, all right, title, and interest, throughout the world, including any copyrights and renewals or extensions thereto, in a work titled [INSERT TITLE AND/OR SHORT DESCRIPTION OF WORK, TOGETHER WITH REGISTRATION NO. IF REGISTERED IN THE U.S. COPYRIGHT OFFICE]. IN WITNESS THEREOF, Assignor has duly executed this Agreement. Dated: ___________________________________ Name: [Print Name of Assignor] hereby irrevocably transfers and assigns to Yale all right, title, and interest, throughout the world, including any copyrights and renewals or extensions thereto

Using name or likeness of a person in original work may require permission  Right of privacy – right to be left alone  Right of publicity- right to control commercial exploitation of name or likeness of celebrity  Obtain release prior to using name or likeness of person in project

Obtain releases from persons appearing and speaking in videos  Spanish project using video tapes of interviews of Paraguayans discussing prisons and domestic violence  Hindi project producing video tape of shopping trips in New York City  Incidental appearance does not require release

RELEASE FORM I authorize Yale University and those acting pursuant to its authority to: a. Record my participation and appearance on video tape, audio tape, film, photograph or any other medium. b. Use my name, likeness, voice and biographical material in connection with these recordings. c. Exhibit or distribute such recording in whole or in part without restrictions or limitation for any educational or promotional purpose which Yale University, and those acting pursuant to its authority, deem appropriate. Name: _______________________________________________ Address:______________________________________________ Phone No.:____________________________________________ Signature:_____________________________________________ Witness Signature:______________________________________ Parent/Guardian Signature (if under 18):_____________________

RELEASE FORM I authorize Yale University and those acting pursuant to its authority to: a. Record my participation and appearance on video tape, audio tape, film, photograph or any other medium. b. Use my name, likeness, voice and biographical material in connection with these recordings. c. Exhibit or distribute such recording in whole or in part without restrictions or limitation for any educational or promotional purpose which Yale University, and those acting pursuant to its authority, deem appropriate. Name: _______________________________________________ Address:______________________________________________ Phone No.:____________________________________________ Signature:_____________________________________________ Witness Signature:______________________________________ Parent/Guardian Signature (if under 18):_____________________ Record my participation and appearance Use my name, likeness, voice and biographical material Exhibit or distribute such recording... for any educational or promotional purpose

Copyright Notice  © or “Copyright”  Year of publication  Name of copyright owner  Faculty name or Yale University Register in U.S. Copyright Office  Prerequisite for filing infringement action

USING THIRD PARTY MATERIALS  Create inventory listing each element of the presentation  Identify parts of the materials reproduced from other sources

Gentle Creature Vision Project Permission Spreadsheet ID No.Photos/LocationSource Permission Needed Permission Requested Permission Granted P1 Building with Obilisk/Part I, Preface, Page 2 P2Slide 1/St. Petersburg Tour P3Slide 2/St. Petersburg Tour P4Slide 3/St. Petersburg Tour P5Slide 4/St. Petersburg Tour P6Slide 5/St. Petersburg Tour P7Slide 6/St. Petersburg Tour P8Slide 7/St. Petersburg Tour P9Slide 8/St. Petersburg Tour P10Slide 9/St. Petersburg Tour P11Slide 10/St. Petersburg Tour P12Slide 11/St. Petersburg Tour P13Slide 12/St. Petersburg Tour P14Slide 13/St. Petersburg Tour P15Slide 14/St. Petersburg Tour P16Slide 15/St. Petersburg Tour P17Slide 16/St. Petersburg Tour P18Slide 17/St. Petersburg Tour

Gentle Creature Vision Project Permission Spreadsheet ID No.Photos/LocationSource Permission Needed Permission Requested Permission Granted P1Building with Obilisk/Part I, Preface, Page 2 P2Slide 1/St. Petersburg Tour P3Slide 2/St. Petersburg Tour P4Slide 3/St. Petersburg Tour P5Slide 4/St. Petersburg Tour P6Slide 5/St. Petersburg Tour P7Slide 6/St. Petersburg Tour P8Slide 7/St. Petersburg Tour P9Slide 8/St. Petersburg Tour P10Slide 9/St. Petersburg Tour P11Slide 10/St. Petersburg Tour P12Slide 11/St. Petersburg Tour P13Slide 12/St. Petersburg Tour P14Slide 13/St. Petersburg Tour P15Slide 14/St. Petersburg Tour P16Slide 15/St. Petersburg Tour P17Slide 16/St. Petersburg Tour P18Slide 17/St. Petersburg Tour Identify each element of the reproduced work Identify source Determine whether third party work is copyrighted or in the public domain Determine whether permission is needed, requested and obtained If permission not obtained, consider risk in copying materials

Depends on whether copying of materials is a “fair use”  Good news – fair use offers defense to claim of copyright infringement  Bad news – defense is very subjective in its application

FACTORS FOR DETERMINING FAIR USE 1. Purpose and character of the use  whether commercial or for nonprofit educational purposes 2. Nature of the copyrighted work 3. Amount of portion used in relation to copyrighted work as a whole 4. Effect of use upon the potential market for or value of the copyrighted work

FACTORS FAVORING FAIR USE  purpose is for criticism, comment or teaching (including multiple copies for classroom use)  use for non-commercial purposes, such as educational or nonprofit use  not a substitute for purchasing copy of entire copyrighted work

 copied material identifies the author, publisher, etc.  copied work is out of print and otherwise unavailable  copyright owner could not be located after a good faith search

PRACTICAL CONSIDERATIONS FOR USING WITHOUT PERMISISON  Classroom materials often remain below radar screen  Materials may be so ephemeral as to be of less concern  Insufficient monetary interest in taking action against copying

Different approach required when project is to be commercialized  Permission becomes imperative  Copyright owner has interest in sharing profits from sales of materials  Example of Jules et Jim

Fair use is defined by courts in infringement actions  leads to conflicting results Kinko’s Case (narrow application of fair use)  presumption that copying of works by copy shop for profit is never fair use

Pretty Woman Case (broad application of fair use)  Supreme Court expressly recognizes educational copying as fair use  rejected presumption against all commercial photocopying What to do in the face of conflicting judicial decisions

1. Conservative – “bright line” test  publishers and educators adopt minimums as to permissible copying  line is drawn to exclude copying that is arguably fair use  chilling effect on creation of instructional materials

Copyright Clearance Center  Works to expand types of copying that require payment of a fee  Recent efforts at providing users of Blackboard to pay CCC for permission to copy licensed materials  May compel faculty to pay for copying that could otherwise constitute fair use

2. Institutions adopt rules of thumb for fair use copying  one journal article or book chapter  set number of charts, graphs, illustrations  still can be overly restrictive  some copying still requires fair use analysis

3. Yale CLS avoids adopting black and white standard  operating in a gray area of the law  take common sense approach  advise faculty when permission is necessary

Seeking permission  Start process at early stage of project  Identify party authorized to give permission  More difficult if copyright has been transferred  Letter requesting permission  Precise as to scope of permission and duration of use

Dear Sir or Madam: I am on the faculty at Yale University where I teach [Language] language and literature. As part of my language classes, I have been making available to my students [describe type of project that will incorporate the work for which you are requesting permission]. I recently came across the above-referenced work to which I believe you hold all rights, including copyright. I believe that this work would have significant educational value for my students, and I would like to make it available to them in a manner intended for use by students enrolled in my classes. I can assure you that your work will be used only for this limited purpose and will not otherwise be reproduced or commercially exploited. If you are not the entity that holds rights in the above referenced work, I would greatly appreciate any information (i.e., name, address, phone, fax, ) that you might have as to the entity that would be in a position to provide the requested permission. Assuming that you are the rights holder, I ask your consent to this limited use of the above-referenced work for students in my classes. I am willing to place any notice or credit that you may ask to be displayed in conjunction with your work. Your cooperation in this matter is greatly appreciated. Please contact me if you have any further questions either by phone [(Phone No.)] or [( Address)]. Otherwise, please acknowledge your willingness to grant the requested permission by signing the enclosed copy of this letter and returning it to me in the enclosed stamped, self-addressed envelope. Sincerely yours, Permission granted for the use of the material as described above: Name & Title: ____________________________________________ Company/Affiliation: ______________________________________ Date: __________________________________________________

Dear Sir or Madam: I am on the faculty at Yale University where I teach [Language] language and literature. As part of my language classes, I have been making available to my students [describe type of project that will incorporate the work for which you are requesting permission]. I recently came across the above-referenced work to which I believe you hold all rights, including copyright. I believe that this work would have significant educational value for my students, and I would like to make it available to them in a manner intended for use by students enrolled in my classes. I can assure you that your work will be used only for this limited purpose and will not otherwise be reproduced or commercially exploited. If you are not the entity that holds rights in the above referenced work, I would greatly appreciate any information (i.e., name, address, phone, fax, ) that you might have as to the entity that would be in a position to provide the requested permission. Describe project that will incorporate the work for which you are requesting permission Identify work to be copied Use will be limited to students enrolled in classes

Assuming that you are the rights holder, I ask your consent to this limited use of the above-referenced work for students in my classes. I am willing to place any notice or credit that you may ask to be displayed in conjunction with your work. Your cooperation in this matter is greatly appreciated. Please contact me if you have any further questions either by phone [(Phone No.)] or [( Address)]. Otherwise, please acknowledge your willingness to grant the requested permission by signing the enclosed copy of this letter and returning it to me in the enclosed stamped, self-addressed envelope. Sincerely yours, Permission granted for the use of the material as described above: Name & Title: ____________________________________________ Company/Affiliation: ______________________________________ Date: __________________________________________________ request limited consent offer to display credit with copy of work owner of copyrighted work should give consent by signing letter and returning copy

Initial permission letter does not offer compensation Owner can request payment  Depending on amount of material reproduced  Whether educational (non-profit) or commercial (for profit)

What if owner cannot be located ~ Or ignores permission request  Work may be old or out of print  No one with ongoing interest in work  Does not excuse copying of copyrighted work

Weigh risk of proceeding without consent  Consider other fair use factors  Copying without consent could constitute copyright infringement  Liability for monetary and injunctive relief  Commercial product heightens visibility and likelihood of objection

If you decide to reproduce work ~  Scope and duration of use may never come to attention of copyright owner  Document all attempts to contact owner  Always credit owner of copied work  whether copied with or without permission

EIGHT MYTHS ABOUT COPYRIGHT 1. It is difficult to get a copyright.  copyright is automatic  registration requires simple form and costs only $30 2. Copyright does not concern me as an educator.  fair use does not give carte blanche to copy  at some point copying will go beyond permissible fair use

3. I can always copy a work that does not have a copyright notice.  copyrighted works do not have to bear copyright notice 4. I can never copy a work with a copyright notice.  copyright may have already expired  copying may occur as fair use

5. I can copy as long as I give credit to the author or copyright owner.  presence of credit may not be enough to excuse what is otherwise an infringement 6. I can copy a copyrighted work as long as it is not for commercial purposes.  non-commercial nature of copying is only one factor in fair use analysis

7. I can make copies of copyrighted materials available to students as long as access is password protected.  shows educational purpose and reduces access by unauthorized persons  never excuse for otherwise impermissible copying 8. Educators never get sued for copyright infringement  let the copier beware