Part III: Roadmap 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 questions should help you determine whether you need permission for using the work of another author: (1) Is the work copyrightable?; (2) Is the work in fact copyrighted?; and (3) Is the proposed use "fair use"? Is the Work Copyrightable? 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." Courts give a broad reading to these concepts. "Originality" encompasses new writings, musical works, artwork, photography, and computer programming. You may also find originality in a new arrangement of existing facts or information. For example, scientific findings or facts may not be copyrightable, but their arrangement on a table or their presentation in text is protectable. Similarly, Homer's epic poems may never have had any legal protection in their first incarnation, but a new translation is an "original" work subject to copyright law.[17] The "tangible medium" requirement expands copyright from traditional writings and pictures into the realm of video, sound recordings, computer disks, and Internet communications. 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 is likely eligible for copyright protection.
Certain types of works are clearly not protected by copyright. A speech or music performance that is not recorded, written, or otherwise "fixed" in some medium is not protectable. The law specifically states that such things as ideas, processes, concepts, and discoveries are not eligible for copyright.[18] An important court decision in 1999 clarified the nettlesome question of whether "copy photography" of a public-domain artwork is a new copyrighted creation.[19] Photographic reproductions of works of art and other graphic images are important in many scholarly studies and commercial products. If the work is recent and still protected by copyright, the artist or the artist's successors clearly have some rights to the work. If the art is by Leonardo da Vinci or Rembrandt, however, the artist surely no longer has rights, but photographers have claimed a copyright in the photographic copy. The court ruled that a direct and accurate reproduction of the original painting lacks "originality" and is not protected by copyright. This ruling makes some art images easier to use in research, while affirming that a photograph may be copyrighted if it captures more than just the painting, or if it embodies creative lighting, colors, or angles. Do not forget, too, that if the photograph is of a Picasso, Warhol, or other recent work, the artist's rights can still apply to the original and to the photograph. 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, if you are conducting your research and writing in the U.S., American 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. In fact, beginning in 1996 Congress granted greater protection to foreign works than it has given domestic works; a subsequent section of this manual on "formalities" will explain how some expired copyrights in foreign works have been "restored." Contact the U.S. Copyright Office to determine whether the United States has a treaty with the country where a particular work in question may have originated (see Circular R38a in Appendix C). U.S. Government Publications
Works of the United States government are not copyrightable. A specific statute prohibits copyright protection for federal government works, but even this rule is not so simple.[20] 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 protectable. Your own dissertation may be funded by NSF funds or other government grants. A federal grant does not put your work in the public domain. In general, you still hold the copyright, but you must review carefully the terms of your grant to determine whether someone else may claim the copyright to your project. 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. If you have reason to believe that the government work may in fact have copyright protection, inquire with the appropriate agency about possible copyright protection for its materials. Is the Work Protected by Copyright? Formalities of Copyright
Not all copyrightable works are in fact copyrighted. Some works are never protected, whether by accident or by intention. 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.[21] By contrast, a medical agency might prepare brochures on public health issues, choosing not to seek copyright protection in order to encourage duplication and distribution. Under prior law, the lack of a copyright registration or formal notice-such as the "©" symbol with the year and copyright owner's name-indicated the lack of copyright protection, if the work were published.[22] Congress since has eliminated those requirements. Registration of copyrights technically never has been required for protection,[23] and beginning in March 1989 Congress fully dropped the notice requirement. 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, and consequently users must assume initially that nearly all "original" and "fixed" works are protected. Consequently, those brochures about health issues are in fact covered by copyright unless they include a declaration that the writers unequivocally waive their rights. Two general rules can help determine whether the work is copyrighted. First, if the work was published originally in the U.S. before 1978 without a notice, you may use the material without copyright restrictions. Be careful not to jump to a conclusion based on the one copy you might have in hand; it could be an altered or defective version. You may need to study other contemporaneous copies to be sure that the work was "generally published" without a notice. Second, if the work was published in or after 1978, the lack of a copyright notice or registration is not conclusive.[24] You should proceed as if the work is protected until you learn otherwise, which might require extensive research or simply contacting the author or publisher. Keep detailed records of your findings. Other countries did not follow the U.S. model of requiring notices and other "formalities" for protection. Thus, many works published in foreign countries without formalities enjoyed copyright protection in their home countries, while they lapsed into the public domain in the U.S. Under the terms of recent trade treaties, American law "restored" such foreign copyrights as of January 1, 1996. For example, a foreign work may well have been in the public domain in the U.S. in 1995 and before, but in 1996 it regained full protection for the remaining duration of the protection term it otherwise would have enjoyed. If you are making substantial uses of foreign materials in your dissertation, the lack of formalities is no reassurance, even for pre-1978 publications. 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 seventy years. The law protects anonymous and pseudonymous works-and "works-made-for-hire"-for ninety-five years from their first publication, or 120 years from their creation, whichever term expires first. These terms of protection reflect the addition of twenty years that Congress granted in late 1998. In general, copyright protection today lasts for a term based on the life of the author. Before January 1, 1978, when the copyright statutes were fully revised, copyright lasted for a fixed period of years. Although that term has become clumsy and sometimes difficult to calculate, it remains in effect for works published before 1978. As a general rule, works published before 1978 have ninety-five years of protection. In a complex twist, this rule applies only to works published since January 1, 1923. Works published before 1923 are in the public domain.
Recall that protection for published works under the former law depended on including a copyright notice. The work then received protection for twenty-eight years. Upon filing a renewal registration with the U.S. Copyright Office, the copyright owner of that early work could receive an additional sixty-seven years, for a total of ninety-five years. One implication of this rule is that many early works lapsed into the public domain at the end of only twenty-eight years. On the other hand, rather than continue that possibility, beginning in 1992, Congress dropped the renewal requirement and simply gave the added years automatically. Thus, the term for some works may be shorter if the initial term expired before 1992, but investigating that possibility about a specific work involves significant research in the law, the facts, and the registration and renewal records. Registration records are public, and the Copyright Office will conduct searches for a fee (see Circular R6 in Appendix C). Computer online searches are also available through some database providers and on the Internet (see Circular R22 in Appendix C). Unless the work is of great importance to your project, you will likely not investigate the copyright status and instead assume the basic rule of ninety-five years. In general, the term of protection for most new works is the same whether those works are published or not. A journal article, a software program, and a private diary-each written today-has protection for the life of the author plus seventy years. A complex set of rules applies to works that were created before 1978, but never published. Early 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 for the limited period (twenty-eight years, plus a possible renewal term), while common-law rights lasted in perpetuity. As long as the manuscript, letter, or other work remained unpublished, the common-law rights never expired. The author may be dead for centuries, but the copyright lived on. As of 1978, Congress rescinded all common-law copyright, and subjected all works to a statutory term of protection: now generally life plus seventy years. To prevent abrupt termination of long-standing copyrights, however, 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 seventy 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. Overall, the law of copyright duration is inexcusably complicated. It is even more convoluted than this summary can reveal. The following table should help clarify the fundamental rules of copyright's duration and ease your way through this aspect of the law. Creation/Publication of the Work General Rule of Duration Created in or after 1978 by a named author acting in an individual capacity, whether published or not. Life of the author, plus seventy years. Created in or after 1978 by an anonymous or pseudonymous author, or by a corporate author, or a work-made-for-hire. The earlier of either ninety-five years from publication, or 120 years from creation. Created before 1978, but not published. The later of either seventy years after the death of the author, or through December 31, 2002. The expiration date is extended through December 31, 2047, if the work is published by the copyright owner before the end of 2002. Published after 1922 and before 1978 with a copyright notice and renewed if required. Ninety-five years from the date of original publication. Created and published before 1923. Copyright has expired. Is Your Proposed Use "Fair Use"? If you conclude that the work you intend to use in your research is protected by copyright law, you should assess whether your proposed use is "fair use." If it is not, you must seek permission from the copyright owner, a process described later in this manual, or alter or abandon your use of the materials. 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" or that all commercial uses are not fair use. You also need not satisfy all four factors; courts balance them to identify their dominant disposition. Here is how the four factors might work in common situations: 1. Purpose of the Use. Fair use law favors educational uses over commercial uses. Your dissertation is fundamentally "educational," but once you make it available for sale through UMI or most other publishers, it takes on some 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. Once published, the "purpose" of the dissertation may change, although not necessarily. Even a commercial or for-profit publication of the work may be overshadowed by the scholarly or educational nature of the content. A commercially lucrative biography, for example, can still serve predominantly educational purposes. Courts also look favorably on "transformative" or "productive" uses to strengthen the claim of fair use and to outweigh commercial purposes. For example, if your use is straight copying of text or digitizing of images to serve the basic function of the original, the use may not be "transformative." Selective quotations in a scholarly study, short clips in an innovative multimedia work, or deconstruction of text in a critical analysis might be deemed "transformative." 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 often more restrictive than for published works. The fair use of workbooks, survey instruments, and other "consumable" works may also be limited. Courts favor uses of nonfiction more readily than they favor uses of fiction or artistic works. Courts have given little guidance about the "nature" of videotapes, software, and other relatively new media and whether they merit special treatment. One place to start the inquiry is by evaluating the importance and relevance of selecting and copying the work to further your educational purpose; be sure any music, video, and photography in your dissertation are important for advancing your research objectives. 3. Amount of the Use. This factor may be intuitively the clearest to assess, but still without quick answers. Many people believe that quoting is allowed only within certain measures such as word counts, bars of music, or minutes of film footage. Such simple assurances are more myth than law. Be critical of simplistic "answers" about fair use; study instead the substantiality 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. Evaluate whether the amount that you are using is necessary for serving your research purpose. 4. Effect on the Potential Market for or Value of the Original. Courts sometimes state that this factor is most critical, but it should still be understood in the overall context of the four factors. Does your proposed use compete with or supersede the original work? Is your copy or excerpt likely to substitute for purchasing the original? Many people make photocopies or software copies with the rationale "I wouldn't buy one anyway," but that explanation will not likely 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. Even a short excerpt might not be "fair" if it is a substantial portion or the central significance of a commercially valuable work. At least one recent case has ruled that if the copyright owner offers a license for copying the work, using it without paying the license fee harms the market for licensing.[25] Thus, the means employed for licensing or marketing the work may bear on evaluating this factor. Once again, no simple rule can apply. Fair use depends on the particular circumstances of each situation. A few recent court cases offer useful insights on the meaning of fair use and the nature of your obligations. In Marcus v. Rowley, a schoolteacher prepared a twenty-four page pamphlet on cake decorating for her adult education classes.[26] 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 educational purpose. Your copying in a dissertation may not 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 does not preclude an infringement claim; an author today may claim "statutory damages" of up to $30,000 for each infringement-or up to $150,000 for willful infringements-plus reimbursement of attorney fees.[27] In Penelope v. Brown, a professor, Penelope, wrote a book about English grammar and language usage.[28] Later, Brown, a writer of popular fiction, wrote a manual for budding authors. Amidst five pages of Brown's 218-page book, she apparently copied sentence examples from Penelope's work. The court ruled that the use was fair after applying the four factors. As for "purpose," the court found that the second book greatly expanded on pieces borrowed from the first, making the use "productive." The court also found little commercial character in the use of the small excerpts, and it found no improper conduct by Brown. The court looked to the nonfiction "nature" of the work used and its limited availability to the public. The excerpts were a small "amount" of the first work. Finally, the court found little adverse "effect" on the market for the original, noting that the two books might appear side-by-side in a store, but a buyer is not likely to see one as a replacement for the other. The court quoted statements from the books themselves that underscored their diverging objectives. This case assures that small excerpts, used to build constructively on the existing work, can often pass fair use scrutiny. In Higgins v. Detroit Education Broadcasting Foundation,[29] Higgins was a composer and copyright owner of a short song. Forty-five seconds of it were used as background music during the introductory and ending sequences of a program about drugs and youth that was broadcast on a PBS affiliate in Michigan. The broadcaster also sold videotape copies of the program to educational institutions "for educational use only." The court ruled that the station acted within fair use. With respect to "purpose," the court noted that the defendant sold only a modest number of copies of the tapes and did not earn a profit; the use of the music faintly in the background was also "transformative." As a musical composition, the court found the work to be creative, thus tipping the "nature" factor against fair use. The amount used was neither "qualitatively" nor "quantitatively" an excessive amount. The use did not include any lyrics of the original song and only a portion of the original music, and then only as background. Regarding the "effect" factor, the court looked to whether the particular use by the defendant harmed a realistic market for the song. The plaintiff presented no evidence of lost sales, and the court concluded that the brief excerpts as background music "cannot be said to be a substitution for the musical composition." The court acknowledged that any use is a "potential" loss of a sale or revenue, but the only market important in this analysis is the market that the copyright owner is realistically exploiting: "The market niche that the Defendants have filled is the educational videotape niche. Clearly, Plaintiff has no interest in occupying this niche." The Higgins decision suggests that clips of music and other creative works in a dissertation can be lawful when the use is limited to nonprofit, educational contexts, especially if the materials are not straight reproduction, but are in a critical or transformative context. The use is even more likely fair use with respect to text and fact-based works, and brief excerpts are more likely to be fair use. Evaluating market harm may depend on researching whether the copyright owner has realistically established a market for the particular use in question. The Higgins and Penelope cases are significant for dissertations, because they found fair use even when the use was incorporated into a published or broadcast work. As more dissertations are published by UMI and widely disseminated or published on the Internet, these court rulings assure that some level of fair use continues to exist. These cases also make clear, that fair use will be more narrowly applied when your dissertation moves from limited circulation on campus to potentially broad distribution to interested readers from any location. Special Problems of Licenses and New Media Software, databases, videotapes, and a growing range of materials are now available for research, study, and library access under terms of license agreements, rather than by traditional purchase. As a result, the right to use many new works is often determined not only by copyright law, but also by contractual obligations and conditions on a researcher's access to materials and electronic data resources. The law remains unclear about the validity of "shrink-wrap" licenses, and courts have not settled whether or how a license may reduce fair use and other legal rights.[30] Thus, you may need to consult the details of license agreements in addition to struggling with the ambiguities of fair use. Licenses are especially important in the software industry, where they often grant practical rights of use as well as set restrictions. If your dissertation relies on incorporating an application or reader software program, the creation of multiple copies of the software for distribution may be problematic under the law and under license agreements. Some software developers often understand and appreciate the practical utility of their products, and they can be receptive to requests for special permission.
Perhaps of even greater significance is a set of new legal regimes that became part of American copyright law upon enactment of the Digital Millennium Copyright Act (DMCA) in October 1998. Within the DMCA is a new body of law that creates federal offenses for "circumventing technological protection systems," or removing or altering "copyright management information" under specified circumstances.[31] These laws are vastly too complex to describe here, but in general they prohibit a person from bypassing password controls or other barriers on access to copyrighted works, which increasingly protect electronic resources. The "circumvention" may be unlawful, even if your ultimate actions are "fair use."[32] The DMCA also makes a federal offense, under certain circumstances, of removing a copyright notice, or the name of an author, publisher, or other marks or information that identify a work, its source, or conditions for use.[33] Removal of strict statements against copying, or deleting links to restrictive contract language, could become a legal violation. We have a long way to go before resolving what these new legal concepts really mean, but they signal that you should be cautious about properly accessing electronic information resources for your research. These new laws also mean that you often need to preserve copyright notices and other "management information" whenever making a copy of a work for use in your dissertation.[34] Practical Guidance from UMI Copyright law leaves plenty of room for confusion, but a handful of general principles can address most situations that you are likely to encounter in your dissertation and future research program. 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 accomplishments of scholars who came before you. The best way to address fair use is by evaluating the four factors, yet practicalities often demand more expedient guidance. Writers also 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. Another practical underpinning of this manual is that the most serious copyright issues arise here from the prospect of publishing your dissertation, whether through UMI, on the Internet, or with another publisher. As a publisher, 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 ease your dissertation through its pre-publication review, staff members at UMI offer these guidelines about acceptable fair use from their years of experience. 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. Reproduced publications. Avoid reproducing significant amounts of textual material in the format or page layout in which it was originally published elsewhere. Examples include copies of standard survey instruments or questionnaires and journal articles. This scrutiny applies even if you are the author of the original work; you may have assigned the copyright to the original publisher.[35] On the other hand, some materials, such as artwork and video, usually must be reproduced in their original form to have any meaning, so you may need to limit uses to brief excerpts.[36] Unpublished materials. Recent court rulings have eased some concerns about a potentially narrow scope of fair use for unpublished works, but extensive reliance on unpublished works raises a variety of issues about copyright and about privacy and access to collections. UMI and most other publishers will often question uses of manuscript materials and other unpublished works. Poetry. Although fair use does apply to poetry, fair use for highly creative works is relatively limited. The amount quoted from a poem can also be difficult to prescribe, because poems come in all lengths and serve diverse objectives. You need to apply the four factors, but you have to examine the distinctive and difficult conditions surrounding creative materials. Lengthy excerpts from poetry will raise critical questions. Some publishers require permission for all quotations from poems. Dialogue from a play, screenplay, broadcast, or novel. Here, too, the meaning of fair use is often problematic, and lengthy excerpts of dialogue may be tested rigorously. While fair use is relatively narrow for creative and fictional works, it should allow brief quotations in the context of scholarly critiques. Music. Many owners of copyrights to musical works-whether the music, lyrics, or sound recordings-have aggressively asserted a limited scope of fair use, although fair use does apply.[37] Excerpts in your dissertation should be brief and should be closely tied to your research objectives. Graphic or pictorial works. Reproducing a picture, chart, graph, drawing, or cartoon often constitutes copying the owner's entire work; thus, the "amount" factor under fair use may weigh against fair use. Yet reproducing the entire work may be the only meaningful use and may clearly advance your educational purpose. As with other uses, the material should be closely related to your research objectives, tied to critical analysis, and not supersede the market for the original. Computer Software. Dissertations embodied in new media, such as on a website or on CD-ROM, may incorporate reader programs or other application software to make the new work accessible or useful. Reproducing such programs to accompany your dissertation will almost invariably require permission. Consult any license agreement that may apply to the programs, and prepare to seek permission from the copyright owner. "Shareware" is also not necessarily freely available for copying. Shareware is a protected work made available under generous or lenient licensing terms; read the license carefully before integrating the program into your dissertation. Sources located on the Internet. The Internet is a rich trove of text, graphics, and other resources, but easy availability does not change the copyright status. Materials on the Web are protected by copyright just as if they appeared in a book or on tape. As with other works, the status and qualities of each item must be individually reviewed. On the other hand, if the copyright owner makes the work freely available on the Internet, then circumstances might imply that it is of a "nature" intended for wide use. Further, if access is completely unrestricted, the author may not be seeking to exploit any market, suggesting that the "effect" factor may work in favor of fair use. Through its wealth of experience with copyright, UMI has compiled specific examples of permitted copying. UMI has identified lists of publishers that routinely approve limited copying that may otherwise exceed fair use. UMI 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 to inquire about any aspect of UMI's review and the possible need for copyright permissions. Call the UMI Publishing Unit at (800) 521-0600, ext. 7020.
17. 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. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). 18. 17 U.S.C. § 102(b). 19. The Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp.2d 191 (S.D.N.Y. 1999). 20. 17 U.S.C. § 105. 21. Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991). 22. For example, a federal district court ruled in 1998 that the famous and important "I Have a Dream" speech by Martin Luther King, Jr. was in the public domain, because Dr. King made a "general publication" of the work by widely distributing copies and encouraging its publication in the press, and the printed copies that he circulated at the time of the speech in 1963 lacked a copyright notice. In 1999 the court of appeals reversed that decision, finding that King's actions did not jeopardize the claim of copyright. Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999). The lack of a notice would not threaten the copyright protection under today's law. 23. Although registration is not required for copyright protection, the law offers incentives to registration. Later in this manual, you will see mention that a copyright owner may seek to recover "statutory damages" and attorney fees in an infringement case. Registration is also required before filing an infringement lawsuit, although that is often a procedural step that can be undertaken when needed. Do not confuse "registration" with "renewal." Registration generally occurs early in the life of the work, but renewal was a similar filing with the U.S. Copyright Office that was required under the 1909 act to extend the term of copyright protection. The significance of renewals will be described more fully with the discussion of copyright duration. 24. Like all legal rules, this one becomes more complicated with further exploration. Congress actually did not drop the notice requirement until March 1989, so a work published in, say, 1985 without a notice could, therefore, be in the public domain. Between 1978 and March 1989, however, Congress provided a statutory method to "cure" a missing or defective notice, involving registration of the work and using best efforts to place a notice on published copies. 17 U.S.C. § 405(a). Therefore, a work published during those years without a notice may or may not have copyright protection. 25. American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994), cert. dismissed, 516 U.S. 1005 (1995). 26. 695 F.2d 1171 (9th Cir. 1983). 27. Statutory damages and attorney fees may be recovered only if the work had been registered with the U.S. Copyright Office before the infringement took place. 17 U.S.C. § 411(a). As was emphasized earlier in this manual, registration is not required to have copyright protection, but without timely registration, a copyright owner may only receive less-fruitful benefits in an infringement lawsuit, such as an injunction and recovery of actual damages. Without timely registration, you may well own the copyright, but as a practical matter you may not be able to afford to prosecute an infringement. From another perspective, if you plan to make use of a work that is not registered, you may not have to face the severe consequences of statutory damages and payment of attorney fees if your use is ultimately an infringement. 28. 792 F. Supp. 132 (D. Mass. 1992). 29. 4 F. Supp. 2d 701 (E.D. Mich. 1998). 30. Contract law is largely a matter of state law, and as of this writing state legislators will soon begin to consider enacting the Uniform Computer and Information Transactions Act (UCITA). UCITA is a body of law that generally would support the enforcement of most shrink-wrap, click-on, and other licenses, even if their detailed provisions restrict rights to use content in ways that might otherwise be lawful under fair use or other legal principle. All researchers should follow closely developments in this law and the possibility of its profound consequences. 31. 17 U.S.C. §§ 1201-1202. 32. The statute barring circumvention of technological protection systems does specifically preserve fair use, but the law still leaves the dilemma that fair use may protect the ultimate use of the materials accessed. Fair use may still not allow the circumvention to make the use possible. 17 U.S.C. § 1201(c)(1). 33. Most of these activities are not a legal violation unless they are done intentionally or knowingly, and in some situations must be done under circumstances that "induce, enable, facilitate, or conceal" an infringement. 17 U.S.C. § 1201. 34. The statute barring circumvention of technological protection systems does not take effect until October 28, 2000. 17 U.S.C. § 1201(a)(1)(A). 35. The divergence between authorship and ownership arises easily and often. Scholars often write journal articles and other works, then assign the copyright to the publisher under the terms of a publication agreement. Copyrights may be assigned by a written instrument that is signed by the copyright owner. 17 U.S.C. § 204(a). If you give away your copyright, your can use your own materials only as permitted by law, with a permission from the new copyright owner, or under the terms of the publication agreement. Reading and negotiating your agreements is obviously of growing importance. 36. A recent court ruling indicates that fair use might apply to uses of entire photographs, when the use is "transformative" and when the images are low-resolution and "thumbnail" versions of the full originals. Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (C.D. Cal. 1999). 37. For insightful and instructive essays on the difficulty of quoting lyrics to popular songs and other materials, 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 Corp., 1989), 37-50; and David W. Stowe, "Just Do It: How to Beat the Copyright Racket," Lingua franca 6 (November-December 1995): 32-42.