A crash course in copyright law, part 3 (exceptions)

A crash course in copyright law, part 3 (exceptions)

What are some exceptions to copyright infringement cases?

So, when is it all right?

Purdue University offers a terrific and very readable summary of the main known exceptions to copyright infringement claims.

Note: the law changes in every area. This blog is no substitute for talking directly with an experienced copyright attorney!

Fair Use

For the fair use defense, Purdue outlines four basic factors:

Purpose and character

Some specifics favor fair use. These include nonprofit, educational, and personal usages. Plus there are those representing a potential tipping point. These include teaching, research, scholarship, criticism, commentary, and news reporting. And there are those which favor needing permission. These include commercial, entertainment, and for-profit uses. That is, a nonprofit’s research is more likely to be fair use than a for-profit enterprise’s commercial use. Hence the for-profit enterprise should seek the copyright holder’s permission.

Nature of work

To favor fair use, it should be a fact and/or published. But to favor needing permission, it should be a fiction and/or unpublished. E. g. It’s more likely to be fair use if you repeat a published fact about dinosaurs. Whereas you more likely need permission when it’s an unpublished novel about vampires.

Amount

Small and insignificant instances of copying are more likely to be fair use than large ones representing a work’s heart. As a result, those are more likely to require permission. That is, if I copy the character of Millicent Bulstrode, then the character is minor and small. However, this does not necessarily mean JK Rowling won’t sue me. Copying Hermione Granger is another matter entirely.

Market Effect

You’re more likely to be in the fair use realm if:

  • Licensing/permissions are unavailable or there is no major impact,
  • There is limited/restricted access to the work, or
  • The user or institution owns a legal copy.

But it’s different if there is a major impact, or licensing/permissions are readily available. Or the work has worldwide availability, or there is repeated or long-term use. Then the scale slides to requiring permission. Profit and sales are not an element to this cause of action. Although selling the copied article, particularly multiple instances of it, can place the act into the ‘requires permission’ camp.

Face to Face Instruction

According to Purdue,

The traditional classroom or face-to-face instruction is when the instructor and the students of a nonprofit educational institution are in a place devoted to instruction and the teaching and learning take place at the same time. In this setting all performances and displays of a work are allowed.

Requirements:

  1. All materials must be legally acquired.
  2. Teaching activities must take place in a classroom or a similar place devoted to instruction.

Virtual Instruction

Similar to the face-to-face instruction allowance, virtual instruction generally gets a pass, according to Purdue University. However, there are some specifics, such as the class must be a regular offering in the curriculum.

What about Parody?

The American Bar Association notes the United States Supreme Court treats parody and satire separately. But the ABA feels it’s a distinction without much of a difference. Both are mockery. However, satire is often more like commentary than outright mimicry. For the ABA, and particularly when a work has both elements, the difference matters less. Although copyright holders might be more inclined to license satire rather than parody. This is because parody is pretty much a knockoff by definition.

Commentary generally falls under fair use. That commentary can be amusing or not, satirical or not. Copying generally isn’t fair use, but amusement and exaggeration blurs that line.

The best advice I can give you is: don’t make your work into a copyright test case.

In other words: be original!

A crash course in copyright law, part 2

A crash course in copyright law, part 2

Want to learn more about copyright law?

How about infringement?

We are artists and that means we are copyright holders, even if we never assert our rights and never file with the copyright office. According to American copyright law, you own it if you made it. You don’t have to mail it yourself.

Infringement

However, I will only talk about American law. If you assert copyright in another country, the law will most likely differ. Furthermore, if you have any questions, ask me in the comments section. I will try to research and answer you in a timely fashion. Or ask a copyright attorney. This area, like many areas of the law, has nuances and there can be changes. This blog is no substitute for good advice from an experienced lawyer. If you think you need to protect your rights, then do so properly. And that means hiring an attorney.

The United States Code

According to Title 17 of the United States Code:

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).

As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

But what the heck does that all mean?

The American Bar Association explains it better. It publishes a Young Lawyers series intended to help newly minted lawyers understand the nuances of complicated sections of practice. So the ABA explains:

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”

Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).  If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

So what is the ABA is saying? Registration with the US Copyright office isn’t necessary to successfully bring an infringement claim. But it’s awfully helpful.

If you think your work might be infringed upon, if you feel it is a danger and you are concerned about it, then get some peace of mind and register it with the US Copyright Office.

A crash course in copyright law, part 1

A crash course in copyright

It’s time for a crash course in copyright law. Don’t worry; no one is going to make you practice law.

Seriously, you’re good.

Me, on the other hand? I’m a retired lawyer, admitted to the New York state bar, 1986. I never worked in the copyright field. However, I have read plenty about it, and of course I have my own legal training and experiences to fall back on. If you have questions, I will try to answer them. Or contact a copyright attorney if you know one, and ask! Your questions won’t offend me.

Disclaimer

Do not infer or imply representation. If you’ve got a copyright issue, and you’re defending, or you think you should bring a lawsuit, I urge you to get legal representation as soon as possible.

American Copyright Law

For the purposes of these blog posts, I will only look at American law. The law differs outside the United States, it will be different. Copyright law is Federal, so jurisdiction rests with the Federal courts. It is a civil matter; no one goes to jail for copyright infringement.

Copyright Search

The United States Copyright Office exists as a part of the Library of Congress, founded in 1870. Want to find out if something has a copyright? Click here and be sure to select Other Search Options. If you think your search will pull up a lot of records, select 100 records per page from the pull-down menu to the left. Make sure to be as specific as possible, but you might need to go less specific in order to be truly diligent. For example, a search for Sally Field’s character, Sister Bertrille, might not bring up anything. A search for Bertrille might give you something, but a better search would be for the television program the character comes from, The Flying Nun. Here’s the copyright for the theme song to that series.

But most people could guess that Field’s role or at least the series has or had some form of copyright. But what, exactly, is copyright?

The Elements of Copyright

According to the US Copyright Office,

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.

Per Section 106 of the Copyright Act of 1967, a copyright holder can:

  • 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 audiovisual 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 audiovisual work
  • perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Hence copyright holders have any number of rights in their own works. Can they allow others to use them? Absolutely! We call that a license.

When do copyrights expire?

Not surprisingly, the US Copyright Office has something to say about that.

Works Created on or after January 1, 1978 The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years.

and …

Works in Existence but Not Published or Copyrighted on January 1, 1978 The law automatically gives federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally computed the same way as for works created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending on the nature of authorship. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case would copyright in a work in this category have expired before December 31, 2002. In addition, if a work in this category was published before that date, the term extends another 45 years, through the end of 2047.

What does this mean? Well, the short answer is that you generally do better to publish your work! After all, you can’t expect anyone to guard against copying it if they don’t know it exists. The other important takeaway: you don’t need to assert copyright or mail it yourself or anything like that. Does it help to register your work? Absolutely! If you ever doubt have concerns, do the legwork (or have your lawyer do so), and register your work.

More of the crash course later ….

Quinnipiac Assignment 05 – ICM 552 – Who Owns Spiderman?

Who Owns Spiderman?

In 1998, Stan Lee, the creator of Spiderman and other iconic comic book characters, contracted with his own company, Stan Lee Entertainment, Inc. (the predecessor company to Stan Lee Media, Inc., also known as SLMI). Lee assigned to the company the rights to all of the characters he had worked on while working for Marvel. In 2001, Lee pulled back his intellectual property rights, alleging material breach against SLMI. This was while Marvel was making movies from Lee’s characters, including the X-Men and Iron Man. In 2007, SLMI began asserting ownership rights. A series of lawsuits followed, with the fundamental question: Who Owns Spiderman?

And Iron Man, and the X-Men, etc.

Lawsuits

According to the January 2015 IP Update, SLMI filed numerous lawsuits. In 2009, when Disney acquired Marvel, Disney became the object of these cases.

Who Owns Spiderman?
English: Stan Lee at the 2010 Comic Con in San Diego (Photo credit: Wikipedia) Image by Gage Skidmore. CC Attribution ShareAlike 3.0 license

Finally, in 2014, the Tenth Circuit ruled that SLMI had never asserted ownership and had never produced anything containing the characters at issue, whereas Marvel did. In Stan Lee Media, Inc. vs. The Walt Disney Corporation, USCA, Tenth Circuit, December 23, 2014, the court dismissed SLMI’s case, and said that SLMI had not owned a valid copyright and, therefore, the case was dismissed.

On its face, the case looks a bit like a contract/employment dispute. Who was Stan Lee working for? It seems as if Lee created a company but did not really work for it, at least not in the beginning. Instead, he was working for Marvel. I doubt that SLMI was turning a profit at the time.

By 2001, Lee disassociated himself from a company named after him. But it wasn’t until six years later that SLMI got on the stick and started asserting rights in the characters and trying for a share of the profits.

Ownership?

The issue of ownership is the crucial one. That includes the assertion (or not) of copyright. While the corporate relationships are a little hard to follow, one thing is clear. SLMI had a chance to assert copyright any time it witnessed Marvel, and then successor corporation Disney, prepare and sell any sort of media with the disputed characters. Yet they didn’t do so until six years had elapsed.

The court applied what was essentially a utilitarian theory. The maximization of benefits was to allow the original content creator, Stan Lee, to sell his intellectual property as he saw fit. And, when he pulled back his rights, while SLMI had had ample opportunity to object then, the company did not. Furthering the utilitarian maximization of benefits theory is the fact that SLMI never created or sold anything with the characters in dispute. Copyright doesn’t exist to just bring suit; it exists to protect an intellectual property owner who is sharing with and presenting to the public.

Righthaven

As VegasInc.Com said when talking about Righthaven,

” the theory [is] that copyrights have a special place in the law and are to be used for informational and entertainment purposes, not just for lawsuits.”

It would seem that the only way that SLMI wanted to utilize Spiderman and the other copyrights was as a lawsuit battering ram against Lee and Marvel (and, later, Disney). That’s hardly in line with the maximized benefit theory of utilitarianism.

Presumably, the matter is now resolved, but SLMI has gone jurisdiction shopping before. It’s possible that this lawsuit, or its near-twin, will show up in another circuit soon. But if that happens, I predict another dismissal, based on both precedent and utilitarianism. The webslinger will finally catch a break.

Quinnipiac Assignment 03 – ICM501 – Copyright & Copyleft—Intellectual Property Online

Copyright & Copyleft—Intellectual Property Online

Copyleft? Way back, when intellectual property was fairly siloed, and hard to copy, it was not that difficult to assert copyright. Actors and actresses plied their trades on stage or the big or small screen but the best anyone could do in terms of copying them was to either take a bunch of still photographs or pretend to behave the same way. Music could be replayed, or maybe recorded onto a reel to reel recorder or even a cassette. Books could be laboriously copied by hand or photocopied.

No Confusion

Copyleft
English: Cartoon about free culture, intellectual property and Internet Piracy. Found on The Pirate Bay in late February / early March ’09. (Photo credit: Wikipedia)

In all of these instances, the quality was extremely poor. The gulf was so great in terms of beauty and readability, not to mention access to distribution channels, that it was obvious which was the original and which was the copy. The pale imitations really couldn’t make any money. Artists were pretty safe.

Things Have Changed

Then came the Internet. As Boyle wrote, in (2008). The Internet threat. In The public domain: Enclosing the commons of the mind(pp. 54–82). New Haven: Yale University Press. [Link|Whole-book PDF], “The strength of intellectual property rights must vary inversely with the cost of copying. With high copying costs, one needs weak intellectual property rights if any at all. To deal with the monk-copyist, we need no copyright because physical control of the manuscript is enough. What does it matter if I say I will copy your manuscript, if I must do it by hand? How will this present a threat to you?

There is no need to create a legal right to exclude others from copying, no need for a ‘copy right.’ As copying costs fall, however, the need to exclude increases. To deal with the Gutenberg press, we need the Statute of Anne—the first copyright statute—and the long evolution of copyright it ushered in.” (Paragraph 20)”

Simplicity

Complicating matters is the fact that not only is copying simple, and widespread distribution a snap, but audiences are less inclined to be pure ‘audiences’ (e. g. listeners) in the first place. We tend to not passively consume content anymore, like we did as recently as the last century.

Instead, we mix and match and mashup and grab. This revolution in content experiencing has brought with it a desire to redo and remake much of what we see and hear. It’s not enough to lay down the opening riff of Rick James’s Super Freak into MC Hammer’s U Can’t Touch This. These days, people photoshop Justin Bieber’s face into the Bad Lip Reading version of Game of Thrones, which of course is a YouTube video that scrubbed the original sound and added new lines, and edited and spliced together unrelated scenes, sometimes adding modern touches like a bullhorn for Sean Bean.

Quinnipiac Assignment 03 – ICM501 – Copyright & Copyleft—Intellectual Property Online

Borrowing

Baio, in his video (2013). Reuse [Video]. Presentation given at Portland/CreativeMornings, Portland, OR. [Link], cites Zach Barth of Infiniminer, who said, “The act of borrowing ideas is integral to the creative process. There are games that came before Infiniminer, and there are games that will come after Minecraft. That’s how it works.”

Baio further uses the Harlem Shake as an example of sampling – it’s been sampled several times and it is even a sample of a song that contains a sample of an even earlier song.

To Baio, the fan fiction writers and photoshoppers who add “No copyright infringement intended” as captions to their creations are not only not protected from suits, but their efforts to shield themselves are somewhat clumsy. Putting their creations online invites lawsuits. But cover songs are different and don’t need explicit permission. Instead, it’s just a quick fair use type of license. I found a way to do this for $15 via Limelight: https://songclearance.com/

Copyleft?

Ironically enough, this mashup, copy, and reuse model is reminiscent of the kind of society that John Philip Sousa warned was going to die away when radios came onto the scene. As Larry Lessig noted in his 2007 TED talk on laws that choke creativity [Video]. Presentation given at TED2007, Monterey, CA. [Link], he says that John Philip Sousa was afraid that we would stop being a read-write culture and turn into a read-only culture losing its creativity and left with only top-down creativity.

In the 20th century, a lot of our culture was passively receiving content. These days, we remix (this is different from piracy, as it’s a change in content to say something new) in a manner that in many ways harkens right back to Sousa’s time.

Remixing

Why is it ostensibly better for remixing and repurposing to go on at home and not in the greater world? Perhaps every teenager has – or knows someone who has – made up some sort of song parody at one time or another. They may have written or read fan fiction, or retold a fairy tale or fable for an acting class. They may have worn a Halloween costume that spoofs a fictional character in some fashion.

Why does it turn into a problem when the fan fiction is posted on Wattpad, or the images of the Halloween costume go onto Instagram, or the song parody or fable retelling makes it to YouTube? Certainly some of these are concepts that are under the public domain, but not all of them are.

Artistic Ownership

As a writer, I certainly don’t want to see my creations copied. This is why I am working with a publisher in the first place, to be somewhat protected by their Legal Department and to benefit from their experience and their Marketing Department. But as someone who has also read a great deal of fan fiction, I can see the side that would prefer opening up copyright a bit more, or at least would assure that mashup artists would be recognized as just that, as artists, instead of being hounded as copyright infringers and plagiarists. Is there a middle ground? If there is, I’m not so sure I can see it just yet.