Duplication & Permission Services at The Bancroft Library

Using works created by others in your project means that you need to do a bit of research into whether that original work is still protected by copyright. There are three easy steps to determining how best to decide if you can use these works:

1. If the work is in the public domain, that is it is no longer protected by copyright, you can use the work without permission from the creator. 
2. If it is still protected you may still be able to use the work without permission if you decide that your use is a fair use.  
3. If it is still protected by copyright, and you determine that your use exceeds fair use, you will need to obtain permission to use the work from the copyright holder.

Please keep in mind that, in providing further details below, the Library is not providing legal advice, but rather sharing information about how these issues work so that you can make informed decisions. It is also your responsibility to undertake due diligence regarding any other (i.e. non-copyright related) legal restrictions that may apply to the materials’ use and distribution (e.g. privacy and publicity rights).

The creator of an existing work may enjoy protection under the law to the following exclusive rights once their creative work is fixed in a tangible medium:

• to reproduce the copyrighted work in copies or phonorecords;
• to prepare derivative works based upon the copyrighted work;
• to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
• in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
• in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Copyright does not protect:

• ideas, procedures, methods, systems, processes, concepts, principles, or discoveries;
• works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down);
• titles, names, short phrases, and slogans;
• familiar symbols or designs;
• mere variations of typographic ornamentation, lettering, or coloring;
• mere listings of ingredients or contents.

A great resource for learning more about the basics of U.S. copyright can be found in the U.S. Copyright Office's Circular 1: Copyright Basics.

Public domain refers to works for which copyright protections have expired, or works that were ineligible for protection from the start. Public domain works are open for use with no permission needed. In most cases he Library cannot make public domain determinations for researchers. For assistance in determining whether a work is in the public domain, the UC Office of the President has provided helpful general rules of thumb in its Public Domain guide. 

Additional resources for making a copyright determination:

• Cornell University Library's chart, Copyright Term and the Public Domain in the United States, is the easiest and best resource to use to make a public domain determination.  If the work you are hoping to use was previously published you will need to know it's date of publication, and possibly its date of registration or renewal with the U.S. Copyright Office.
• U.S. Copyright Office's Public Catalog contains records of all monographs registered or renewed between 1978 and today.  Works other than monographs, or monographs registered or renewed prior to 1978 are only accessible in their physical files at the Copyright Public Records Reading Room or through a database created and maintained by Stanford (linked below).  Use of this tool along with Cornell's public domain chart linked above should help you make a determination for published works registered or renewed after 1978.
• Stanford's Copyright Renewal Database is a searchable index of the copyright renewal records for books published in the US between 1923 and 1963. Note that the database includes only renewal records, not original registrations, and only Class A (book) renewals received by the US Copyright Office between 1950 and 1992.
• The American Library Association offers many tools to help you understand the various stages and vagaries of copyright on their Copyright Tools website.  These tools include a Public Domain Slider to help determine the copyright status of a work that was first published in the United States.

If the work that you would like to use is not in the public domain, that is that it is still protected by copyright, you may still be able to use the work without permission of the copyright holder if your use is a fair use. You do not need a copyright holder’s permission to publish when the intended use is fair use because United States copyright law contains a limited exception for certain uses such as teaching, scholarship, research, criticism, commentary, and news reporting. It is your responsibility to determine whether the intended use is a fair use. The UC Berkeley Library cannot make a fair use determination for you, or confirm whether your use would be fair.

Evaluating fair use is done on a case-by-case basis for each work that you use, and rests on the following four factors. When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate.  The four factors are a balancing test, each may push you in one direction or the other, but it is the sum of all four factors that will help you to determine if your use is considered fair.

The factors you need to work through to determine whether your use is a fair use are listed below, but evaluating and applying the below steps are your responsibility; the Library cannot make fair use determinations for you.

The following questions can help you weigh the outcome of those four factors:

• Are you planning on using the work in a different way, or for a different purpose, than the original creator?  In copyright terms, is your use “transformative”?
• Are you using an amount of that work that is narrowly-tailored to your new purpose?
• Would someone be likely to use your work instead of purchasing the original?

For guidelines on what uses may qualify for the fair use exception, please see:

• American Library Association's Fair Use Evaluation Tool
• UC Berkeley Office of Scholarly Communication Services
• U.C. Office of the President’s Guide to Fair Use
• Columbia University Guide to Fair Use
• Stanford University Fair Use Center – Guide to Fair Use
• Harvard University Guide to Copyright and Fair Use

If you determine that the work is not in the public domain and your use exceeds fair use then you will need to seek permission from the copyright holder.

Finding Copyright Holders: for help locating third-party copyright holder(s), the following resources may assist your investigation:

• WATCH File: The WATCH File (Writers, Artists, and Their Copyright Holders) is a database containing primarily the names and addresses of copyright holders or contact persons for authors and artists whose archives are housed, in whole or in part, in libraries and archives in North America and the United Kingdom.
• U.S. Copyright Office: You can search a public database at the U.S. Copyright Office for copyright information on all works registered with the U.S. Copyright Office after January 1, 1978.
• The Artists Rights Society: Represents over 80,000 visual artists and their estates.  If you are searching for the copyright holder for pictorial works, this is a good place to start.
• For materials to which third parties hold copyright but the physical copies are stewarded by The Bancroft Library, you may also contact Copyright & Information Policy Specialist Michael Lange (mlange@berkeley.edu) to determine whether the Library has any information about the potential copyright holder. The Library makes no representations about the accuracy or completeness of copyright ownership information in its collections.
• If you are unable to identify or locate the current copyright owner of a copyrighted work, then those materials may be "orphan works." Columbia University Libraries and the Society of American Archivists provide information on documenting your effort to search for copyright owners and potentially using orphan works.

The University of California Regents (UC Regents) do not hold the copyright to the majority of the materials held in the collection of The Bancroft Library. When copyright is not held by the UC Regents, no permission for publication/use from the Library is required or given.  If you intend to publish any material found in the collection of the Library that is still protected by copyright, and you determine that your use exceeds fair use, you are required to obtain permission from the copyright holder.  More information about determining copyright status, fair use, and other legal restrictions that may apply can be found below.

The Copyright & Information Policy Specialists can perform a search of the Library's files on the requested material to establish if the UC Regents hold the copyright to the material, or if there is any information about the current copyright holder that can be shared, by emailing information about your requested material to schol-comm@berkeley.edu.  University of California employees cannot offer legal advice (e.g. whether or not your use would constitute fair use) or make a legal determination beyond if the material is © UC Regents.  Any further research into copyright and other legal restrictions that may apply is your responsibility and you are solely responsible for complying with all applicable laws.

Please keep in mind that there are several laws and policies outside of copyright that also affect publication permission.

• Gift or Donor Agreements: requests to publish archival and other special collections materials stewarded by The Bancroft Library may be subject to gift or donor agreement limitations. The Library reserves all rights to grant and deny permission request inquiries based on these limitations.
• Privacy & Publicity Rights: you must also comply with applicable federal and state privacy and publicity laws when publishing certain materials. While copyright laws protect the copyright owner’s property rights in the work, privacy and publicity laws protect the interests of the individuals who are the subject of the work. In general, a person’s right to privacy ends with his or her death, but publicity rights associated with the commercial value of that person’s name, image, or likeness may continue after death. It is your sole responsibility for addressing issues of privacy and publicity rights when publishing content from Library materials. For more information on privacy & publicity laws and rights, see the Digital Media Law Project page on privacy and publicity.