Copyright, Fair Use, Creative Commons

1. Copyright

What Is Copyright? (from the US government copyright website)

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• reproduce the work in copies or phonorecords
• prepare derivative works based upon the work
• distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­ visual works
• display the 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 audio visual work
• perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

So when a person makes something they have the right to control copies of their work and the right to control the public display or distribution of their work.

Digital media and the internet have made it so much easier to copy and distribute material (no need to obtain and actually publish a physical copy). In order to prevent copyright violations YouTube has implemented a Content ID system. They have a giant database of music and videos and who owns the copyright. When a video is uploaded it is scanned against that database and if it contains copyrighted material, the copyright holder is contacted. The video is then often taken down, a royalty payment is negotiated, or fair use is claimed.

Here is an example of a high school drama class that uploaded a video containing copyrighted music. They were obviously contacted and agreed to place a link selling the song.

2. Fair Use

So how do you use copyrighted material?

Most of the time, you need to get permission from the copyright holder. That permission may require a royalty fee, an advertising deal (for example on a YouTube video), or it might be free (they also may not give you permission).

However, you can use copyrighted material without permission if your use falls under the fair use clause of the law. You are allowed to claim fair use for purposes such as:

• criticism, comment (including satire and parody)
• news reporting
• teaching (including multiple copies for classroom use), scholarship, or research.

Fair use is not strictly defined but there are a few factors to consider:

Courts determine if a new work is fair use by asking the following questions:

• Is the new work transformative - does it add new meaning - and not just replicate the original?
• What is the nature of the work? (Creative or fictional works generally get more protection than purely factual ones, legal scholars say.)
• How much of the original work is used?
• Does the new creation use the "heart" of the original?
• How would the new work affect the market for the original?

There are several guidelines available for how fair use in education

Teachers can:

1. make copies of newspaper articles, TV shows, and other copyrighted works and use them and keep them for educational use
2. create curriculum materials and scholarship with copyrighted materials embedded
3. share, sell and distribute curriculum materials with copyrighted materials embedded

Learners can:

1. use copyrighted works in creating new material
2. distribute their works digitally if they meet the transformativeness standard

The big question is what makes something transformative. The courts have ruled on some cases, but the law can be interpreted differently depending on the case.

2.1. Legal Cases on Fair Use

Cases Involving Text

• Fair use. A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Important factors: No more than 1% of Wright’s unpublished letters were copied and the purpose was informational. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)

• Fair Use. Libraries that provided a search engine company (Google) with books to scan were protected by fair use when the libraries later used the resulting digital scans for three purposes: preservation, a full-text search engine, and electronic access for disabled patrons who could not read the print versions. Important factors. The three purposes for which the scans were used were transformative. The court also did not find any evidence of financial harm and labeled as circular logic, any claims of lost license revenue. The Author’s Guild v. Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y., October 10, 2012).

• Not a fair use. The Nation magazine published excerpts from ex-President Gerald Ford’s unpublished memoirs. The publication in The Nation was made several weeks prior to the date Mr. Ford’s book was to be serialized in another magazine. Important factors: The Nation’s copying seriously damaged the marketability of Mr. Ford’s serialization rights. (Harper & Row v. Nation Enters., 471 U.S. 539 (1985).)

• Not a fair use. An author copied more than half of an unpublished manuscript to prove that someone was involved in the overthrow of the Iranian government. Important factors: A substantial portion was taken (half of the work) and the work had not been published yet. (Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).)

• Not a fair use. A company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What, containing direct quotations and paraphrases from the television show Twin Peaks, as well as detailed descriptions of plots, characters, and setting. Important factors: The amount of the material taken was substantial and the publication adversely affected the potential market for authorized books about the program. (Twin Peaks v. Publications Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993).)

• Not a fair use. A company published a book of trivia questions about the events and characters of the Seinfeld television series. The book included questions based upon events and characters in 84 Seinfeld episodes and used actual dialogue from the show in 41 of the book’s questions. Important factors: As in the Twin Peaks case, the book affected the owner’s right to make derivative Seinfeld works such as trivia books. (Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).)

• Not a fair use. Although the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), this transformative quality was not enough to justify a fair use defense. Important factors: An important factor in the court’s decision was the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008).)

• Not a fair use. In a case involving the author J.D. Salinger, an author wrote a book in which a character known as Mr. C was allegedly modeled after the character of Holden Caulfield, from Salinger’s Catcher in the Rye. After Salinger sued, the sequel’s author claimed that his work was a parody, an argument rejected by the district court. Important factors: Aging the character and placing him in the present day does not add something new, particularly since the character’s personality remains intact as derived from the original work. (Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009).)

Artwork, Visual Arts, and Audiovisual Cases

• Fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the Kojak television show) was accepted as a fair use. Evidence indicated that most viewers were “time-shifting” (taping in order to watch later) and not “librarybuilding” (collecting the videos in order to build a video library). Important factors: The Supreme Court reasoned that the “delayed” system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).)

• Fair use. The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)

• Fair use. A search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images. Important factors: The thumbnails were much smaller and of much poorer quality than the original photos and served to help the public access the images by indexing them. (Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003).)

• Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book. Important factors: The Second Circuit 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).)

• Fair use. A publisher of monster magazines from the 1950s, ’60s, and ’70s sued the creator and publisher of a book, Famous Monster Movie Art of Basil Gogos. (Gogos created covers for the magazines.) The book publisher had obtained licenses from the artist directly, but not from the magazine publisher who claimed copyright under work-made-for-hire principles. The district court determined that the use was transformative. Important factors: The use was for a biography/retrospective of the artist, not simply a series of covers of magazines devoted to movie monsters. In addition, the magazines were no longer in print, and the covers amounted to only one page of the magazine, not the “heart” of the magazine. (Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions, 645 F. Supp. 2d 402, (E.D. Pa., 2009).)

• Fair Use. A seven-second clip from the Ed Sullivan TV was used in a staged musical history (“The Jersey Boys”) based on the career of the musical group, the Four Seasons. Important factors: The use was transformative (“Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music,” the judge wrote in the ruling. “By using it as a biographical anchor, [the defendant] put the clip to its own transformative ends.”) Further, the use caused no financial harm to the copyright owners of the show. SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013).

• Fair Use. The painter, Richard Prince, created a collage using — in one collage — 35 images from a photographer’s book. The artist also used 28 of the photos in 29 additional paintings. In some instances the full photograph was used while in others, only the main subject of the photo was used. Important Factors. The Second Circuit Court of Appeals held that to qualify as a transformative use, Prince’s work did not have to comment on the original photographer’s work (or on popular culture). The Court of Appeals concluded that twenty-five of Prince’s artworks qualified as fair use and remanded the case to determine the status of the remaining five artworks. Cariou v. Prince, U.S. Court of Appeals for the 2nd Circuit, No. 11-1197.

• Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982).)

• Not a fair use. A television station’s news broadcast used 30 seconds from a four-minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. Important factors: The use was commercial, took the heart of the work, and affected the copyright owner’s ability to market the video. (Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)

• Not a fair use. A poster of a “church quilt” was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

• Not a fair use. The U.S. Postal Service (USPS) licensed the use of a photograph of the Korean War veterans’ memorial sculpture for a postage stamp, but failed to obtain permission from the sculptor who held copyright in the underlying three-dimensional work. The U.S. Court of Appeals for the Federal Circuit held that the use of the underlying sculpture depicted in the photograph was not permitted under fair use principles. Important factors: It was not enough to transfer the work from three dimensions to two dimensions (despite the creative use of photography and snow in conjunction with the photos). (Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).)

Internet Cases

• Fair use. The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet. Important factors: Only a small portion of the work was excerpted and the purpose was for news commentary. (Religious Technology Center v. Pagliarina, 908 F. Supp. 1353 (E.D. Va. 1995).)

• Fair use. Displaying a cached website in search engine results is a fair use and not an infringement. A “cache” refers to the temporary storage of an archival copy–often a copy of an image of part or all of a website. With cached technology it is possible to search Web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company’s cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe. Important factors: Google was considered passive in the activity–users chose whether to view the cached link. In addition, Google had an implied license to cache Web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).)

• Fair Use. A real estate blog copied the first eight sentences from a newspaper article. Important factors. The blogger had copied only eight sentences and had not copied the “valuable” section (the commentary included with the article), and the court did not believe that the copying would affect the market for the article (the third and fourth fair use factors). Righthaven LLC v. Realty One Group, Inc., No. 2:10-cv-LRH-PAL, 2010 WL 4115413 (D. Nev. October 19. 2010).

• Fair Use. A nonprofit organization posted a newspaper article about police discrimination on its website. The newspaper assigned its right in the article to a third party, Righthaven, who filed the lawsuit. Important factors. The court’s reasoning was influenced by the fact that Righthaven had acquired the copyright and was not in the newspaper business (it appeared to be in the “litigation business”). For that reason, the court reasoned that the nonprofit’s use was transformative because its purpose was to educate the public about immigration issues, whereas Righthaven had no such purpose for the article (because it was not in the news business). And also, because Righthaven was not in the news business, it could show no harm from the defendant’s dissemination of the article. Righthaven LL v. Jama, No 2:2010-cv-01322, 2011 WL 1541613 (D. Nev. April. 22, 2011).

• Fair Use. A user of an online political forum posted a five-sentence excerpt from a newspaper article with a link back to the newspaper’s website. Important factors: The use was quantitatively small and did not cause the newspaper financial harm. In addition, the online political forum was permitted to use the safe harbor provisions of the Digital Millennium Copyright Act. Righthaven LLC v. Democratic Underground, No. 2:10-cv-01356-RLH (GWF)

• Not a fair use. Entire publications of the Church of Scientology were posted on the Internet by several individuals without Church permission. Important factors: Fair use is intended to permit the borrowing of portions of a work, not complete works. (Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).)

Consider Fair Use Before Requesting DMCA Takedown

In 2008, a district court ruled that prior to requesting a takedown notice, a copyright owner must consider the likelihood of a claim of fair use. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, “Let’s Go Crazy,” by Prince. The owner of the video claimed that since Universal didn’t consider the issue of fair use, Universal could have not had a “good faith belief” they were entitled to a takedown. Faced with this novel issue a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. (Lenz v. Universal Music Corp., 572 F. Supp 2d 1150 (N.D. Cal. 2008).)

Music Cases

• Fair use. A person running for political office used 15 seconds of his opponent’s campaign song in a political ad. Important factors: A small portion of the song was used and the purpose was for purposes of political debate. (Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).)

• Fair use. A television film crew, covering an Italian festival in Manhattan, recorded a band playing a portion of a copyrighted song “Dove sta Zaza.” The music was replayed during a news broadcast. Important factors: Only a portion of the song was used, it was incidental to the news event, and it did not result in any actual damage to the composer or to the market for the work. (Italian Book Corp., v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y. 1978).)

• Not a fair use. Downloading songs is not a fair use. A woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. She argued that her activity was a fair use because she was downloading the songs to determine if she wanted to later buy them. Important factors: Since numerous sites, such as iTunes, permit listeners to sample and examine portions of songs without downloading, the court rejected this “sampling” defense. (BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).)

• Not a fair use. A defendant in a music file sharing case could not claim a fair use defense since he had failed to provide evidence that his copying of music files involved any transformative use (an essential element in proving fair use). Important factors: The court held that the defendant was confusing “fairness” and “fair use”–”In the end, fair use is not a referendum on fairness in the abstract …” (Capitol Records Inc. v. Alaujan, 2009 WL 5873136 (D. Mass., 7/27/09).)

Parody Cases

• Fair use. Comedians on the late-night television show Saturday Night Live parodied the song “I Love New York” using the words “I Love Sodom.” Only the words “I Love” and four musical notes were taken from the original work. Important factors: The Saturday Night Live version of the jingle did not compete with or detract from the original song. (Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff’d 632 F.2d 252 (2d Cir. 1980).)

• Fair use. The composers of the song “When Sunny Gets Blue” claimed that their song was infringed by “When Sonny Sniffs Glue,” a 29-second parody that altered the original lyric line and borrowed six bars of the song. A court determined this parody was excused as a fair use. Important factors: Only 29 seconds of music were borrowed (not the complete song). (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).) (Note: As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, seek permission of the songwriters before recording their parodies.)

• Fair use. The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song “Pretty Woman” (“Oh, pretty woman, walking down the street”). The rest of the lyrics and the music were different. Important factors: The group’s use was transformative and borrowed only a small portion of the original song. The 2 Live Crew version was essentially a different piece of music; the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher, who did not want “Pretty Woman” used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

• Fair use. A movie company used a photo of a naked pregnant woman onto which it superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Important factors: The movie company’s use was transformative because it imitated the photographer’s style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)

• Fair Use. A pro-life video organization created two anti-abortion videos by borrowing video clips from a pro-choice video and juxtaposing them with actual abortion footage. Important factors: The court characterized the pro-choice videos as parodies despite the fact they did not meet the classic definition of a parody — something that humorously mimics or ridicules another’s work. In a unique holding, the court held that a parody need not be humorous, but may merely comment on, or criticize the original. Northland Family Planning Clinic v. Center for Bio-Ethical Reform, No: SACV 11-731 JVS (C.D. Cal. June 15, 2012).

• Not a fair use. An artist created a cover for a New Yorker magazine that presented a humorous view of geography through the eyes of a New York City resident. A movie company later advertised their film Moscow on the Hudson using a similar piece of artwork with similar elements. The artist sued and a court ruled that the movie company’s poster was not a fair use. Important factors: Why is this case different than the previous case involving the Leslie Nielsen/Annie Leibovitz parody? In the Leibovitz case, the use was a true parody, characterized by a juxtaposition of imagery that actually commented on or criticized the original. The Moscow on the Hudson movie poster did not create a parody; it simply borrowed the New Yorker’s parody (the typical New York City resident’s geographical viewpoint that New York City is the center of the world). (Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D. N.Y. 1987).)

• Not a fair use. An author mimicked the style of a Dr. Seuss book while retelling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important factors: The author’s work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)

3. Creative Commons - Public Domain

Some works are published but not copyrighted. The public domain includes works that have their copyright expired (usually 70 years after the death of the copyright holder) or are created by government employees (like NASA photos).

Some works use a creative commons license which gives other people the right to use the material.This poster summarizes the types of creative commons licenses and the icons used to show the license.

http://wiki.creativecommons.org/images/6/62/Creativecommons-informational-flyer_eng.pdf

Use this page to determine which license to use for your work

http://creativecommons.org/choose/

Finding work that is in the creative commons: http://search.creativecommons.org/

Images

http://commons.wikimedia.org/wiki/Main_Page

http://worldimages.sjsu.edu/

http://www.flickr.com/creativecommons/

http://www.usa.gov/Topics/Graphics.shtml

http://www.morguefile.com/archive

Music

https://creativecommons.org/legalmusicforvideos

http://creativecommons.org/music-communities