- 1 Obtaining Permission & Using Licensed Materials
- 1.1 Why Does it Matter?
- 1.2 So What If I Infringe?
- 1.3 What are the Penalties for Using Copyrighted Works Without Permission?
- 1.4 What’s a License?
- 1.5 Free Licenses
- 1.6 Paid Licenses
- 1.7 Open Licensed Material
- 2 Citation & Quotation
Obtaining Permission & Using Licensed Materials
Why Does it Matter?
If the use of a copyrighted work is not allowed by an exception to copyright law like fair use, and the work is not in the public domain, and the use violates one of the copyright owner’s exclusive rights, the use is infringing and the user will need permission to use the work.
So What If I Infringe?
When you infringe a copyright you, or your employer if you’re doing your job, are responsible for the penalties (see below) for infringing the work. Not ensuring that you have the right permissions to use a copyrighted work might mean that that you’re on the hook for a big payout.
If it’s not a fair use, do a quick check to see if your use comports with the Penn State Values.
TIP: And, if you’re a student – remember that knowing rules about copyright law can make you a great job candidate. Be sure to demonstrate appropriate use and fair use in your portfolio for job applications, including correct citations.
What are the Penalties for Using Copyrighted Works Without Permission?
It’s always extremely important to follow the rules of the license when using licensed material. When you exceed the scope of the license (or the rules laid out when you were granted permission), you don’t have permission to use that work in that way, so you no longer have permission. Licenses, which are legal agreements, may lay out penalties for misusing the work or exceeding the license.
Penalties for Copyright Infringement
When you don’t have a license that dictates the terms of infringement, the penalties are specified by the Copyright Act. Chapter 5 of the U.S. Copyright Act lays out the remedies for infringement. The Copyright Act provides for exceptional damages that aren’t available as penalties in other areas of the law – specifically statutory damages and attorney’s fees.
- Injunctions: a legal order issued by a court demanding that you stop the infringement
- Impoundment & Destruction: a court can issue orders to collect and destroy all infringing articles
- Damages & Profits: Two types:
- Actual Damages & Profits: a court can order that the copyright owner’s actual damages and profits of the infringer be awarded to the owner
- Statutory Damages: set amounts per work infringed, no less than $750 per work and no more than $30,000 per work – except in the case of a willful infringement, where damages may be awarded for $150,000 per work. Statutory damages are awarded instead of actual damages and profits. Defendants who can show that they were “not aware and had no reason to believe” they were infringing copyright may have the damages reduced to $200 per work.
- Costs and Attorney’s Fees: the court may award full costs to any party and reasonable attorney’s fees to the prevailing party
Because profits & damages can sometimes be small but the law still wants to ensure that infringements are deterred, the Copyright Act allows for statutory damages. Statutory damages can exceed actual damages or profits by many orders of magnitude. In Capitol Records v. Thomas, Jammie Thomas-Rasset, was found liable to the plaintiff, a record company, for making 24 songs available to the public for free on Kazaa and ordered to pay $220,000. The damages award was reduced from $1,920,000. In a similar case, Joel Tenenbaum was ordered to pay Sony/BMG $675,000. Statutory damages have the effect of a blistering penalty, while also (the law hopes) serving as a deterrent to copyright infringement.
What’s a License?
A license to use a copyrighted work means permission to use a work in a particular way. A license is a legal agreement, but it doesn’t have to be fancy. A verbal/oral agreement works, or an implied license (where permission can be inferred from the circumstances) is also possible. Getting permission in writing is usually best, and an exclusive license, and an assignment (or transfer of copyright ownership) must be in a signed, written agreement. For non-exclusive licenses, if written permission isn’t possible, it’s usually best to memorialize your verbal agreement by following up with a writing confirming permission. TIP: You can send an email saying “Thanks for letting me use XYZ work on my class web page!” or other appropriate language to memorialize a verbal agreement.
One way to get a license – or permission to use a copyrighted work – is just to ask to use it for free. When you ask for permission to use a work in a certain way – for example, for my Spring class instructional materials for next year – that limits the license to that particular circumstance. You may want to be more broad with the permission you request so you don’t have to ask again – omitting the time reference entirely, or putting a longer time period (i.e., 3 years) on the request.
Another way to get a license and to avoid penalties for copyright infringement is to pay for a license to the work. Sites like Shutterstock have stock photos and other royalty free works (including music) for a small fee. There are rules surrounding how you might use the items (i.e., the terms of the license). Be sure to read the rules to understand the limits of the license.
Open Licensed Material
Another type of free license is an open license – when someone grants permission to use their copyrighted work to everyone. Sometimes it’s without restriction (like when someone uses the Creative Commons CC0 tool to dedicate a copyrighted work to the public domain) or fairly simple – “Anyone can use this work for educational purposes.” However, more advanced systems have been developed for openly licensing different kinds of creative works.
Creative Commons Licenses allow people to retain the copyright to their works while easily communicating to the public that those materials can be used under certain conditions – basically making their work “some rights reserved” in particular circumstances. It’s not an alternative to copyright – Creative Commons is based on copyright law and in order to grant a CC license to a work you must own the copyright.
There’s a whole system of visual licenses and you can find out more about each kind of CC license here. It’s important to note that Creative Commons licenses are best used on traditional creative works, like photos, videos, graphic art, visual presentations, and text.
Software & Open Source Licenses
Mostly, Creative Commons shouldn’t be used for software. Other open licenses are better suited to software, and these licenses are called open source licenses. Open Source Licenses allow software to be freely used, modified, and shared. They are software-specific and allow for contributions, forking, and modifications to software that CC licenses may not. Find out more about these licenses, including recommend licenses, at https://opensource.org/licenses.
Citation & Quotation
Limited use of copyrighted work for quotation purposes (whether it’s text or not) may be a fair use. Refer to the the Fair Use section for more information.
While fair use doesn’t require a citation, it’s usually a good idea, especially in a scholarly or business context. Plus, it’s slightly more likely to be a fair use if the work is properly cited (see the Fair Use Checklist). Copyrighted works for which you have permission to use typically require the proper citation.
Check out the PSU Libraries’ Citation Guide.
What Does My Citation Need?
The form of your citation should follow the citation guidelines for any required citation formatting. Beyond that, it should include:
- Creator’s name
- Title of work
- Source (or link)
- Copyright information
- License information
- Any modifications you have made
Be sure to include any requirements of a Creative Commons license if you’re using one.
Where Does the Citation Go?
The citation should be placed in any reasonable place based on the medium, means, and context of the work. For example, citations in a video belong on the end credits, unless it would be reasonable to place the citation directly adjacent to the cited media, perhaps in a presentation slide video.