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Copyright, Ethics & Fair Use
Giving credit to other people's work
Section 107 of Copyright Act of 1976
Notwithstanding the provisions of sections 106 & 106A, the fair use of copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
Factors in determining fair use:
The purpose and character
of the use.
Duplicating and distributing selected portions
of copyrighted materials for specific educational purposes falls
within fair use guidelines, particularly if the copies are made
spontaneously, for temporary use, and not as part of an anthology.
The nature of the copyrighted
work.
Fair use applies more readily to copying paragraphs
from a primary source than to copying a chapter from a textbook.
Fair use applies to multimedia materials in a manner similar if
not identical to print media.
The amount and substantiality
of the portion used in relation to the copyrighted work as
a whole.
Copying extracts that are short relative to
the whole work and distributing copyrighted segments that do not
capture the "essence" of the work are generally considered
fair use.
The effect of use
on the potential market for or value of the work.
If copying or distributing the work does not
reduce sales of the work, then the use may be considered fair. Of
the four standards, this is arguably the most important test for
fair use.
Some Implications
- Today almost everything is copyrighted the moment it is written.
- Copyright is violated whether you charge money or not.
- Postings on the web are not granted public domain status unless specifically stated.
- Fair use doctrine applies to photographs.
- Copyright is not lost because an author doesn't defend it each and every time.
- Derivative works are a violation of copyright.
- Copyright law is civil law in which standards are lower than criminal litigation proceedings.
- Don't rationalize that you are helping someone advertise when you violate their copyright to intellectual property.
Fair Use
Examples
Artistic Standards & Copyright
Interpretation of amount and substantiality varies.
"Amount is measured both quantitatively and qualitatively. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective."
- "17 USC § 107 - Limitations on Exclusive Rights: Fair Use." LII. N.p., n.d. Web. 06 Jan. 2014.
Five major elements were changed in the picture on the right:
| ORIGINAL WORK |
|---|
(Feingersh) 1. Airbrushing 2. Major color changes (example right) 3. New items added: • Borders added/deleted • Cropping • Letters added/deleted • Changes of spacing • Shadowing 4. Textures changes 5. Angle changes |
| NEW WORK |
|---|
(Rozasy) The "20% rule" was devised by looking at court case decisions not law. It posits that a work is considered to be a "new" work or artistic composition if 20% of the image and/or 5 major elements are changed. (While some might consider that a "safety zone", it would only take one court case to change that margin of safety.) The "20% rule" would cause the picture on the right to be considered "new". Major color changes, angle changes, airbrushing and the addition of an inset picture below constitute 20% differentiation. |
- Feingersh, Ed. "Overlooking the balcony at the Ambassador Hotel." Marilyn Monroe—Four Days in New York. Mar. 1955, Brock Street Galler, UK. brockstreetgallery.co.uk/marilyn.
- ———. Marilyn in New York, Schirmer/Mosel, 30 May 2008.
- Rozasy, Frank. "Apple." Marilyn Monroe Art. rozasy.com/marilyn.
Mona Lisa - the most altered artwork
Andy Warhol didn't violate copyright when he layered pictures of the Mona Lisa in his work. Many others have done variations of the Mona Lisa - check out the links below!
These are allowable by
"amount and substantiality"
|
|
Roher, Dean. "Monica Lewinski. " New Yorker Magazine. 8 Feb 1999: Front cover. |
- Baron, Robert A. "Mona Lisa Images for a Modern World - 13." Mona Lisa—23 array of Monas. 2000, studiolo.org/Mona/MONASV13.htm#LIST.
Fair Use
Court Cases
Read a few court cases.
Copyright and Fair Use Cases. Stanford University, 2016, fairuse.stanford.edu/case.
Basic Books vs. Kinko's (S.D.N.Y.
1991) (3)
Kinko's was held to be infringing copyrights when it
photocopied book chapters for sale to students as course packets for
their university classes. The court analyzed word and found that 5 to
25% of the original full book was excessive, thus a violation.
- "Basic Books, Inc. v. Kinko’s Graphics Corp." Copyright & Fair Use Cases, Stanford University, 2016, fairuse.stanford.edu/primary/cases/c758FSupp1522.html. Opinion date 28 Mar. 1991.
Encyclopedia Britannica v. Crooks
(1982) (4)
For-profit producers of educational motion pictures and
videos sued a consortium of public schools which was systematically
recording programs as they were broadcast on PBS stations and providing
copies to member schools. Although work was for educational purposes,
the schools were retaining copies for 10 years thus competing with the
license. En-US – license, En–Br: licence
- "Encyclopedia Britannica Educ. Corp. v. Crooks."Copyright & Fair Use Cases, Stanford University, 2016, fairuse.stanford.edu/primary/cases/c558FSupp1247.html. Opinion date 10 Mar. 1983.
Maxtone-Graham v. Burtchaell
(1987) (5)
Plaintiff wrote a book based on women's stories of abortions
in 1973; she denied the defendant to use her excerpts. The defendant
proceeded anyway. The court found that quoting 4.3% of the author's
work was not excessive - thus no case.
- "Maxtone-Grapham v. Burtchaell."Copyright & Fair Use Cases, Stanford University, 2016, fairuse.stanford.edu/case/maxtone-graham-v-burtchaell. Opinion date 15 Oct. 1986.
Fair Use
Strategies
Avoiding Copyright Infringement
Generate your own work
or own design whenever possible.
Most works are copyright protected and such
works rarely "lose" their copyright.
If you need to use a work, ASK — many times photographers, web page designers, etc. will allow their work to be reused for educational purposes. If you found it on the Web, it probably belongs to someone else. (Do not copy the work or its source code. Instead, request permission to link to the page or pages.)
Give credit to the person. Not even Einstein came up with 100% original
thoughts.
Synthesis is the key to developing new ideas and new works. Cite
the works you use.
"Faculty and students who create Web pages should respect the rights of copyright holders. Fair use exemptions to copyright law apply when personal or course Web pages are used exclusively for educational purposes. This may be done by acknowledging sources, restricting access, obtaining permission or license (licence) for use, or some combination of all of these." (Davidson)
Fair Use Exceptions or "Allowances"
Items for educational or "non profit" use which do not leave the educational setting (securely within the classroom or password-protected web site) remains copyright protected, but their use is allowable. (Davidson) (Do not copy the work or its source code. Instead, request permission to link to the page or pages so that the integrity of the original website stays in tact.)
Items from governmental sources are copyright protected but in the "public domain"
Items concerning facts
or ideas are not covered by Copyright laws.
"Copyright do not extend to facts and ideas. While the
protection does cover the particular, distinctive words a writer
uses to present ideas or facts, control over the underlying concepts
or truths cannot be owned. Thus, a biography about a U.S. President
qualifies for copyright, but the events and facts of his life do
not." (Davidson)
Also see Creative Commons for a library of media available for use through specified permissions. Consider licensing and sharing your materials as well.
Works Cited
150 Resources to Help You Write Better, Faster, and More Persuasively, 19 Feb 2013. OEDb, oedb.org/library/features/150-writing-resources.
"17 USC § 107 - Limitations on Exclusive Rights: Fair Use." US Code, LII, Cornell U Law School, www4.law.cornell.edu/uscode/17/107.html. Accessed on 16 Aug. 2016.
"Copyright, Fair Use, & Author Rights: Home." LibGuides. UCSD. ucsd.libguides.com/copyright.
"Copyright Protection: What it Is, How it Works." Copyright & Fair Use. Stanford U Libraries, 2016. fairuse.stanford.edu/overview/faqs/copyright-protection.
Creative Commons. "When we share, everyone wins." creativecommons.org.
——— "Use & Remix." creativecommons.org/use-remix.
——— "Licensing Types." creativecommons.org/share-your-work/licensing-types-examples.
——— "Search." search.creativecommons.org.
Davidson, Hall. "Copyright and Fair Use Guidelines for Teachers." n.d. www.halldavidson.net/copyright_chart.pdf
"Exceptions & Limitations: Classroom Use, Fair Use, and more." Copyright Services, U of Minnesota Libraries, 2016, lib.umn.edu/copyright/limitations.
"Fair Use." Wikipedia, The Free Encyclopedia, 2016, en.wikipedia.org/wiki/Fair_use.
"Frequently Asked Questions About Copyright." Tutorials. US Copyright Office, 2016, copyright.gov/help/faq.
"MLA Formatting and Style Guide." MLA Style. Purdue OWL, Purdue U, 15 Aug. 2016, owl.english.purdue.edu/owl/resource/747/01.
Research and Citation Resources. Purdue OWL.Purdue U,5 Aug. 2016, owl.english.purdue.edu/owl/section/2.
"Strategies for Fair Use." Using Research. Purdue OWL, Purdue U, 15 Aug. 2016, owl.english.purdue.edu/owl/section/2/9/
"Tales from the Public Domain: BOUND BY LAW?" Center for the Study of the Public Domain, Duke Law, 20 Dec 2013, law.duke.edu/cspd/comics.
"The Campus Guide to Copyright Compliance." Copyright Clearance Center. N.p., n.d. Web. 06 Jan. 2014.
"The 'Fair Use' Exemption." Fair Use, Princeton U, 2016, www.princeton.edu/ogc/legal-guidance/copyright/fair-use.
"Websites: Five Ways to Stay Out of Trouble." Copyright & Fair Use. Stanford U Libraries, 2016. fairuse.stanford.edu/overview/website-permissions/websites.
Practice
Fair use or copyrighted?
Which of the following are examples of work protected by copyright?
- Select the checkbox if you believe it is protected by copyright.
- Compare your response to the feedback by clicking the "check 1-22" button.