How many continuing medical education producers have paused over that inevitable Far Side cartoon on a slide and wondered, “Am I supposed to ask for permission to use this?” The dilemma is complicated by the fact that laws governing copyright and intellectual property are not black and white, and faculty may not understand how copyright law applies to CME. In reality, many of us may not understand how copyright law applies to CME. I’m going to try to give you a better sense of what copyright is and enough information to make sure that the next time a cartoon is staring back at you, you know the right questions to ask.

 

What Do All of These Terms Mean?
First, let’s get some definitions out of the way.

Intellectual property refers to creations of the mind. There are four ways to protect different types of intellectual property: patents, trademarks, copyrights, and trade secrets. Types of intellectual property can include journal articles, books, photographs, X-rays, cartoons, PowerPoint slides, and clip art (yes, clip art!). Here, we’re going to be discussing copyright.

Copyright is a form of legal protection given to owners of creative works and generally gives the owner exclusive rights to the work for a period of time. Copyright does not require any sort of official registration—a work is copyrighted as soon as it’s created, and a work is “created” when it is fixed in a copy for the first time. A work, whether printed or in electronic form, is not required to be marked by a © to indicate whether or not it’s copyrighted, meaning that the absence of the mark is not free license to use, nor does it mean that it is in the public domain.

The owner of the copyright is called the copyright holder. This typically is the creator of the work, unless the work was created under a work-made-for-hire contract, or within the scope of the creator’s employment. Copyright holders have certain exclusive rights to the work for a defined period of time. The copyright holder may grant a license or permission to use the material, and may charge a fee for this. Someone else’s copyrighted material is frequently referred to as third-party content. A work may also be in the public domain, which means that the copyright has expired, the work is not copyrightable or protected by copyright, or the author does not want to retain the rights to that work. Works produced by the federal government, and some produced under contract to the federal government, are not copyrighted.

When an article is published in a journal, magazine, book, or other publication, the author usually transfers ownership of the material, frequently including tables, to the publisher. In the cases where an author has borrowed tables or illustrations from another person, the publisher or author must obtain permissions to use the copyrighted material in the article. Copyright for any illustrations usually belongs to the artist.

These are not hard-and-fast rules, though. You may grow tired of my saying this, but when in doubt, ask.

Many of us have heard the term fair use and assume that it applies to third-party content used in education. And CME is education, right? Then we’re covered! Not so fast. There are four factors that are used by the courts to determine whether or not the use qualifies as fair:

1) the nature of the copyrighted work,
2) the amount and substantiality of the
portion used,
3) the purpose and character of the use, and
4) the effect of the use on the potential
market for or value of the work.


Unfortunately, there is no table or chart that clearly tells you that exactly what you’re doing falls under the doctrine of fair use. Fair use is a defense to a claim of copyright infringement; therefore, practically speaking, there are two ways to handle the issue of whether your use of third-party content is fair: Ask the copyright holder to see whether you need to receive written permission; or use it, have the copyright holder take you to court, and let the court’s decision stand as your answer. If you want to be sure, it’s probably simpler to ask.