What is copyright? What is your definition of it? What is copyrighted? How do you get a copyright?
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: “ 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. Copyright purpose: promote creativity, innovation, and knowledge. Copyright limits an author’s control over work so that creativity and spread of knowledge can be promoted. Copyright protects creative expression’ Patents protect inventions Trademarks protect marks or logos
Copyright law protects owners with 5 rights When an owner puts a copyrighted work on the Internet, it doesn’t give other users the right to redistribute that work.
Original = did not copy from somebody else, creative. Facts are not copyrighted => not creative, no one owns; need to be freely used to advance knowledge. Fixed, tangible = physically exists, recorded; Ideas and processes are not copyrightable Everything is copyrighted, but there are exceptions. Copyright law is “platform neutral” – images, music, video – all are protected equally under copyright law. Assume that everything you find on the web is protected by copyright unless you know otherwise (a notice on the stie) Section 110, 1 & 2: Allow teachers to use copies of lawfully acquired material for face-to-face instruction or purposes of online learning Section 107: Doctrine of Fair Use:
2006 Bill Graham archives owned rights to posters printing in 1960s advertising Grateful Dead, etc. DK requested licensing for 11 BG Archives images. They couldn’t come to a deal … too expensive. DK decided not to buy licenses and included the images in its book anyway. Did DK violate the archives copyright?
DK claimed Fair Use Every court said that the publisher had the right to use the images without payment or permission even though a licensing system was in place. The purpose of the original poster was to generate publicity, but the purpose of the new work was to document the concert event in a historical context. The Second Circuit (court below the Supreme court) focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. (Bill Graham Archives v. Dorling Kindersley Ltd. , 448 F.3d 605 (2d Cir. 2006).) The purpose of the copyright law was to spread knowledge and promote innovation. When use of the work is socially beneficial, it is Fair Use. an educational purpose does not necessarily make a use fair, nor does using a portion of a copyrighted work for commercial purposes necessarily make it unfair. The context and the situation of the use determine whether it is considered fair use. You can use or quote copyrighted material without permission or a fee when the cost to the copyright holder is less than the benefit to society Purpose of section 107 is to balance rights of owners with rights of users. Without section 107, copyright law would be unconstitutional because it would over-limit freedom of expression.
Four factors must be considered holitically; one is not more important than the other Students should critically think to do their own fair use reasoning Lawyers don’t make fair use determinations; users should make the determination … users know best the context.
Infringement – using an amount beyond what is allowed by law transformed = adding new expression or meaning, information, aesthetics, insights, understandings
Less you take more likely to be fair use. Heart of the work, less likely to be fair use (e.g., guitar riff of I can’t get no satisfaction) Harper & Row vs. The Nation regarding Gerald Ford’s biography, which contained a section about his pardon of Richard Nixon. The Nation published that portion of the unpublished manuscript; court ruled against The Nation.
Undermine new or potential market
Why is it important to consider the fair use factors? Demonstrate good faith. If you are sued for infringement, if you can demonstrate that you acted in good faith, you may not have to pay statutory damages even if the court decides you were wrong. If you cannot show evidence that you acted in good faith, you can be liable for damages Damages for infringing on a single work range from $750 to more othan $30K If the court finds the damage was willful, damages can go as high as $150K
http://cbldf.org/about-us/case-files/dwyer / In 2000 Starbucks Corporation sued comic book artist Kieron Dwyer for copyright and trademark infringement of its logo. Dwyer’s parody of the Starbucks mermaid logo appeared on the cover of issue zero of Dwyer’s self-published comic book Lowest Comic Denominator . OUTCOME Dyer’s work was parody and therefore protected speech under the First Amendment. Because it is protected speech, the parody logo did not infringe on Starbucks’ copyright. However, the judge found that Dwyer’s parody logo was “confusingly similar” to the Starbucks logo. The use of the phrase “Consumer Whore” in the parody logo could be considered offensive and thereby tarnished the Starbucks trademark. Dwyer ultimately decided to settle the case out of court. Dwyer was allowed to continue displaying his logo but such display was very narrowly restricted. The logo could not appear on comic books, t-shirts, or stickers. Dwyer could post the image on the Internet but not on his own website nor may he link his website to any other sites that show the parody logo. In short, Dwyer is permitted to use the logo as long as Starbucks can be confident that no one will see it.
Original image on the left: Art Rogers. Mr. Rogers’ black and white photograph, entitled “Puppies,” had been sold on inexpensive consumer merchandise such as greeting cards and postcards. Image on right: Jeff Koons, he is an American contemporary artist noted for his use of kitsch imagery, especially in oversized works. Koons is an appropriation artist—he uses pre-existing images to comment on contemporary culture. Created this sculpture for an exhibition he called “The Banality Show.” Koons did not make any of the sculptures for this show himself. Rather, he had Italian artisans create them to his specifications. Koons removed Rogers’ copyright notice from the card, and then gave it to his Italian assistants, with instructions to duplicate it as closely as possible in sculptural form. Koons’ notes on a blown-up photocopy of the postcard instructed the artisans to use particular colors, including making the puppies blue, and to add flowers to the couple’s hair. OUTCOME The court readily found that the sculpture was a “substantially similar” copy of the photograph. Small changes don’t count as fair use: changes in media, addition of color, addition of flowers in hair, changes to shape of noses of puppies Even a quantitatively small amount of copying can be infringement if it copies a qualitatively important part of the original work. Koons claimed that he was using the underlying images to comment on contemporary kitsch culture. In keeping with his theme for The Banality Show – the banality of everyday objects—Koons argued that the “String of Puppies” sculpture was a satire or parody of society at large which showed that mass production of commodities and images had led to a deterioration of the quality of society. The court said while it is fine for a satirical work to mock modern society, the original work must also be, at least in part, an object of the parody. Applying this rule, the courts made a legal distinction between “parody” as a critique of a specific work, and a more general concept of “satire.” The court in Rogers found that “even given that ‘String of Puppies' is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph ‘Puppies' itself.” The court noted that viewers would not be aware of the original “Puppies” photograph, stating: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer's claim to a higher or different artistic use-without insuring public awareness of the original work-there would be no practicable boundary to the fair use defense. http://www.owe.com/legalities/legalities30.htm
Public domain = life of the author plus 70 years
A simple way for creators to give permission to others – and control the extent of that permission Gives tools to creators to make choices about copyright Commercial use or not Derivative works or not Share alike or not (If I take from you, I must offter to the next person under the same terms) Exercise your copyright in more ways more simply
Licenses can be combined Most liberal use is Attribution Only
Ms. Hickson needs a vacation but can’t afford it. Buy a T-shirt with her original artwork and help pay for her trip to Hawaii. $25 per shirt Proceeds benefit the Ms. Hickson Vacation & Ukulele Lessons Fund
“ The Congress shall have power…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” Article 1 Section 8 U.S. Constitution CC Image: US Constitution
Owners’ rights <ul><li>Reproduce </li></ul><ul><li>Prepare derivative works </li></ul><ul><li>Distribute copies </li></ul><ul><li>Perform </li></ul><ul><li>Display </li></ul>CC Image: Weesen
What q ualifies? <ul><li>Or iginal, creative </li></ul><ul><li>Fixed, tangible medium </li></ul>CC Image: RGB
Balances rights of owners and users CC Image: ' Statua della Giustizia
“… copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate.” CC Image: Aspen Institute
Bill Graham Archives vs. Dorling Kindersley, Image: Wolfgang's Vault
“ It not only allows but encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. Without fair use, those beneficial uses— quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published knowledge—would be infringements. Fair use is the means for assuring a robust and vigorous exchange of copyrighted information.” --Carrie Russell, American Library Association
Four Factors <ul><li>Purpose & character of use </li></ul><ul><li>Nature of copyrighted work </li></ul><ul><li>Amount, substantiality used </li></ul><ul><li>Effect on market </li></ul>CC Image: Scales
Purpose & character Fair use Infringement Created something new (transformative) Copied verbatim into another work
Generate publicity Historical context Transformative use Image: Amazon
Nature of the work <ul><li>Factual - Biographical - Published </li></ul>- Fictional - Unpublished Infringement Fair use
Amount & substantiality - Small amount - Large amount - Heart of work Infringement Fair use
Market effect - Minimal effect - Deprive income - Undermine market Infringement Fair use
So what? Damages $750 to $150K CC Image: Indecision
You judge: Fair use? Image source: Illegal Art
You judge: Fair use? Image source: Copyright Society of the United States
Confused? What can you do? <ul><li>Request permission </li></ul><ul><li>Pay the license fee </li></ul><ul><li>Claim fair use </li></ul><ul><li>Use public domain material </li></ul><ul><li>Don’t use it </li></ul>
Creative Commons <ul><li>A way for copyright owners to exercise their rights </li></ul>http:// www.youtube.com/watch?v =1DKm96Ftfko&feature= player_embedded