Copyright Law and What It Means to a Working Journalist

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Slideshow to accompany lecture and class discussion on copyright and fair use.

Slideshow to accompany lecture and class discussion on copyright and fair use.

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  • 1. Intellectual property Copyright law and what itmeans to a working journalist
  • 2. Constitutional considerations• Copyright is included in Article I, Section 8 – “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
  • 3. Constitutional considerations• Copyright is included in Article I, Section 8 – “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”• Where have we heard this before?
  • 4. Constitutional considerations• Copyright is included in Article I, Section 8 – “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”• Where have we heard this before?• Article 6: Free press versus fair trial
  • 5. Purpose of copyright• Encourage creativity for the benefit of all
  • 6. Purpose of copyright• Encourage creativity for the benefit of all• Purpose is lost when copyright term is extended too far
  • 7. Purpose of copyright• Encourage creativity for the benefit of all• Purpose is lost when copyright term is extended too far• Elred v. Ashcroft upheld decades-long terms
  • 8. What can’t be copyrighted?• Information and ideas, as opposed to a specific expression of those ideas
  • 9. What can’t be copyrighted?• Information and ideas, as opposed to a specific expression of those ideas• Titles
  • 10. What can’t be copyrighted?• Information and ideas, as opposed to a specific expression of those ideas• Titles• Compilations of works with no creative value – Feist Publications v. Rural Telephone Service Co. (1991)
  • 11. Who holds copyright?• Individual creator when he or she is self- employed
  • 12. Who holds copyright?• Individual creator when he or she is self- employed• Client when relationship is “work for hire”
  • 13. Who holds copyright?• Individual creator when he or she is self- employed• Client when relationship is “work for hire”• Visions of online profits have tilted the balance against freelancers’ rights
  • 14. Fair use• Allows you to use a small part of a copyrighted work without getting permission or paying compensation
  • 15. Fair use• Allows you to use a small part of a copyrighted work without getting permission or paying compensation• Especially valuable in criticism – Text excerpts – Sound clips – Song lyrics – Art shows
  • 16. Four elements• Purpose and character of use – Nonprofit, educational, and “transformative” uses (such as parody) are more likely to be protected by fair use than commercial uses
  • 17. Four elements• Purpose and character of use• Nature of the copyrighted work – “Expressive” works such as fiction, poetry and music are less likely to be covered by fair use – Unpublished works are less likely to be covered by fair use – Out-of-print works are more likely to be covered by fair use
  • 18. Four elements• Purpose and character of use• Nature of the copyrighted work• Amount and “substantiality” – Not done by word count; based more on whether the heart of the work was taken – Gerald Ford’s memoirs a good example – Boston.com’s copying of GateHouse headlines and ledes
  • 19. Four elements• Purpose and character of use• Nature of the copyrighted work• Amount and “substantiality”• Effect on market – Most important factor – If copyright holder can be shown to have lost money, fair use is less likely to be recognized
  • 20. Harper & Row v. Nation• All four factors cut against The Nation
  • 21. Harper & Row v. Nation• All four factors cut against The Nation• Economic effect was especially clear
  • 22. Harper & Row v. Nation• All four factors cut against The Nation• Economic effect was especially clear• A good decision? Or was journalism about a former president being punished?
  • 23. The “Pretty Woman” caseRoy Orbison 2 Live Crew
  • 24. Campbell v. Acuff-Rose• Parody enjoys strong First Amendment protection
  • 25. Campbell v. Acuff-Rose• Parody enjoys strong First Amendment protection• Is 2 Live Crew’s remake of “Oh, Pretty Woman” “transformative”?
  • 26. Campbell v. Acuff-Rose• Parody enjoys strong First Amendment protection• Is 2 Live Crew’s remake of “Oh, Pretty Woman” “transformative”?• Justice Souter says yes
  • 27. MGM v. Grokster• In Sony v. Universal, the Court ruled that the VCR was legal
  • 28. MGM v. Grokster• In Sony v. Universal, the Court ruled that the VCR was legal• Napster and similar services were shut down because of massive copyright violations
  • 29. MGM v. Grokster• In Sony v. Universal, the Court ruled that the VCR was legal• Napster and similar services were shut down because of massive copyright violations• Grokster survived for a time because it lacked a central server
  • 30. MGM v. Grokster• In Sony v. Universal, the Court ruled that the VCR was legal• Napster and similar services were shut down because of massive copyright violations• Grokster survived for a time because it lacked a central server• Lost because of “inducement theory”