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COPYRIGHT BASICSLinda Motter

©

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WHAT COPYRIGHT PROTECTS

Promotion of the Arts Difference Between Copyright, Patent, &

Trademark Artist’s Exclusive Rights What is Required to be Protected by

Copyright What is Not Required

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PROMOTION OF THE ARTS

Copyright law is intended to promote and advance art. Literary works Music works Pantomimes Pictorial, graphics, and sculptural works Motion pictures Sound recordings Architectural works Computer programs

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DIFFERENCE BETWEEN COPYRIGHT, PATENT AND TRADEMARK

All are considered “intellectual property” Patents

Give inventors exclusive right to duplicate their inventions' design

Cover devices, formulas, tools, and anything that has utility.

Trademark ™ Is a word, phrase, or logo that identifies a product, a

service, or person or company that offers a product or service to the public

Copyright applies to any creative work and prevents others from copying the work. Copyright last for the artist’s or author’s life plus 70

years (there are exceptions if copyright is held by company)

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WHAT IS REQUIRED TO BE PROTECTED BY COPYRIGHT

Fixed in a Tangible Medium The idea behind the work must be able to be

read, seen, heard, or understood by others. Original

You cannot claim copyright protection to work that was created by someone else.

Creative How creative? The Supreme Court says, “…the

requisite level of creativity is extremely low; even a slight amount will suffice.”

This includes a child’s finger painting, a snowman, sand castle, graffiti even email if it is original an the least bit creative.

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WHAT IS NOT REQUIRED

After 1978 there are no formalities required. Copyright springs into existence the instant

the work becomes fixed to a tangible medium.

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WHAT COPYRIGHT DOES NOT PROTECT

Material not creative enough Idea/Expression dichotomy Expired Copyright – “Public Domain” Works Copied for Fair Use

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MATERIALS NOT CREATIVE ENOUGH TO PROTECT

There are no lines in the sand The Copyright Act says,

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discover, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

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IDEA/EXPRESSION DICHOTOMY

Copyright law protects the expression of facts and ideas, not the ideas and facts themselves.

Works not fixed in a tangible medium are just facts.

Ideas are fair game for everyone to express in their own words.

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WORKS WITH EXPIRED COPYRIGHTS –

“PUBLIC DOMAIN”

Works in public domain anyone can copy, make derivatives, distribute, perform, and display without permission. There are various ways to get into the Public Domain Copyright has expired Author or artist donates the work Created by corporation duration is 95 years from

the publication date or 120 years from the date of creation (whichever is shorter)

Work was created by the federal government Any work before 1978 whose copyright

formalities were not observed

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DURATION OF COPYRIGHTS

Rule of Thumb Any published works created before 1923 Unpublished works created before 1883 Copyright scholars created this chart

www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

Where to find Remember do your own research do not rely on

what others profess as “public domain” This website is a good starting point to find

public domain resources http://publishing.wsu.edu/copyright/pd_resources.html

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WORK THAT IS COPIED AS FAIR USE-MUST CONSIDER…..

Four Factors of Fair Use Juggling the Factors of Fair Use Purpose and Character of the Use Nature of the Material Copied Amount of the Material Copied Commercial Effect Guidelines for Navigating the Commercial

Effect Factor Special Fair Use Cases Fair Use Slide Rule Classroom Guidelines Future of Fair Use

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WHAT IS FAIR USE

Fair use is the exception to the rule that no one may exercise the author’s or artist’s exclusive rights – for example, copying the work – without permission.

Was established “…to avoid rigid application of the copyright statue when, on occasion, it would stifle the very creativity which that law was designed to foster.”

Fair use is indispensable in higher education, so its well worth the time and resources to learn what you can about the doctrine and use it in good faith.

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FOUR FACTORS OF FAIR USE

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes Is the work for criticism, comment, news

reporting, education, scholarship, or research The nature of the copyrighted work The amount and substantiality of the portion

used in relation to the copyrighted work as a whole

The effect upon the potential market for or value of the copyrighted work

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JUGGLING THE FACTORS OF FAIR USE

Not necessary for all four factors to qualify as fair use

The factors are used for “balancing the equities” rather than as a “definitive or determinative” test and

Are to be weighted together, in light of the objectives of copyright, to promote the progress of science and the useful arts

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PURPOSE AND CHARACTER OF THE USE

Do you intend to make a profit or other commercial benefit? Unless your copy serves a public interest or is

transformed into a new product, any commercial or profit-making purpose will weight this factor against fair use.

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NATURE OF THE MATERIAL COPIED

The less creative the material is, the more this factor favors fair use.

Materials that are “predominantly factual” or “scientific works” will make this factor lean in favor of fair use.

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AMOUNT OF MATERIAL COPIED

The more you copy and the closer the copy is to the original, the less likely it will be fair use.

The nature of both the copy and the original makes a difference is weighing this factor.

Considers the quantitative and qualitative value of the materials that are copied. Copying the materials essence or heart of the

content The nature of the material and the amount

copied are interrelated

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COMMERCIAL EFFECT

Considers the extent of harm the copies actually have on the artist’s or author’s market. Takes into consideration hypothetical harm and

potential market Most difficult to analyze because many

pertinent factors are unknown.

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SUGGESTED GUIDELINES FOR NAVIGATING THE COMMERCIAL EFFECT FACTOR

Avoid copies that you intend to distribute widely that might supplant or substitute for a product that would normally be purchased

Do not post copies on the World Wide Web with open access

Avoid making copies for any commercial or profit-making pursuit

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SUGGESTED GUIDELINES FOR NAVIGATING THE COMMERCIAL EFFECT FACTOR

In copy or display projects where it appears to be a struggle qualifying for fair use Document effort to contact the copyright holder

and request permission Proceed without permission only if you cannot

find the copyright holder or cannot get any response and you get the approval of your institution’s legal counsel first.

Avoid any copy project where the intention is to save the students money on materials they would normally purchase

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SPECIAL FAIR USE CASES

Video Time Shifting The Supreme Court ruled that making video

recorder copies of entire movies or other programs from cable, satellite, or TV was a fair use, this is generally for nonprofit, home use

Parody The Supreme Court defines parody as:

The use of some elements of a prior author’s composition to create a new one that , at least in part, comments on the author’s works… If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery of working up something fresh, the claim to fairness in borrowing from author’s work diminished accordingly, and other factors, like the extent of its commerciality, loom larger.

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PARODY CONT.

A parody is a new work subject to it’s own copyright protection

The parody MUST criticize the original work to qualify for fair use

A music parody can copy borrow most of the amount of the original to the extent the parody requires, and be entirely commercial because the parody has a different audience than the original song and thus poses little or no harm to the original song’s market.

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FAIR USE SLIDE RULES – PURPOSE OF USE

1. __Non profit2. __Education3. __Research4. __Criticism5. __New & Different

Product6. __Comparative

advertising7. __Parody

1. __For profit or commercial purpose

2. __Entertainment

3. __Saving costs

4. __Other purposes

Favoring Fair Use Against Fair Use

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FAIR USE SLIDE RULES – NATURE OF MATERIAL COPIED

1. __Published

2. __Out of Print

3. __More factual than creative

1. __Unpublished

2. __Creative or fictional

Favoring Fair Use Against Fair Use

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FAIR USE SLIDE RULES – AMOUNT OF MATERIAL COPIED

1. __Just enough to serve a fair use purpose

2. __Small amount of total

1. __Heart of the work

2. __More than is needed

to serve purpose

3. __Large amount of total

Favoring Fair Use Against Fair Use

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FAIR USE SLIDE RULES – COMMERCIAL EFFECT

1. __Copy is not a substitute for the original product

2. __Copy is not for sale or widely distributed

3. __Copy is not published or posted online

4. __Parody – has a different market

5. __Cannot get permission

1. __Heart of the work

2. __More than is needed

to serve purpose

3. __Large amount of total

Favoring Fair Use Against Fair Use

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FOUR FACTOR BALANCE SHEET

1. Purpose of the Use: For___ Against___

2. Nature of Material Copied For___ Against___

3. Amount of Material Copied For___ Against___

4. Commercial Effect For___ Against___

Total Favoring____ Total Against _____

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CLASSROOM GUIDELINES

A single copy may be made of any of the following by or for a teacher for use in research, teaching, or preparation to teach a class:

Single Copying for Teachers A chapter of a book An article from a periodical or newspaper A short story, short essay or short poem,

whether or not from a collective work A chart, graph, diagram, drawing, cartoon or

picture from a book, periodical, or newspaper

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CLASSROOM GUIDELINES

Multiple Copies for Classroom Use Multiple copies may be made by or for the

teacher giving the course for classroom use or discussion provided that:

The copying meets the tests of brevity and spontaneity as defined

Meets the cumulative effect test as defined Each copy includes a notice of copyright.

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DEFINITIONS Brevity

(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.

(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.

[Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding, such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

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DEFINITIONS – CONT.

Spontaneity(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

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DEFINITIONS – CONT. Cumulative Effect

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

[The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

III. Prohibitions as to I and II AboveNotwithstanding any of the above, the following shall be prohibited:

(A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.

(B) There shall be no copying of or from works intended to be "consumable" in the course of study or teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

(C) Copying shall not:

substitute for the purchase of books, publishers’ reprints or periodicals; be directed by higher authority; be repeated with respect to the same item by the same teacher from term to term. No charge shall be made to the student beyond the actual cost of the photocopying.

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GETTING PERMISSION

General guidelines for determining when to obtain permission Course packs or copies of textbooks, journal

articles, or other materials that will be uses as the sole course material for any class in which a textbook is available and traditionally used.

Any copies that are sold or used in commercial venture with no educational, research, or commentary purpose

Any copies widely distributed or posted online that create a substitute for the original product that was copied.

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WHERE TO GET PERMISSION The source and method of getting permission vary

according to the nature of the materials you wish to copy.

Print MediaCopyright Clearance Center222 Rosewood Dr.Danvers, MA 01923

Phone: (978) 750-8400Web: www.copyright.comE-mail: info@copyright.com

You will need to establish an account and provide the following reference information about the materials you want to copy: Title Author Book's date or edition Portion of the book you want to copy Standard number or ISSN, ISBN or LCCN

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WHERE TO GET PERMISSION - IMAGES

Images and Photos You will need to go directly to the image’s artist,

or creator, or photographer. All photos you see on the web were chosen from

either subscription collections or collections where the photographer could be traced and permission obtained directly.

Look for free sources if you can not obtain permission or use a online photo collection. Clipart.com Corbis.com Image.altavista.com GettyImages.com Fotosearch.com

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WHERE TO GET PERMISSION - MUSIC

Music is the most licensed and regulated. Most effective way to get permission

Contact all licensing agencies American Society of Composers, Authors, and Publishers

(ASCAP)(212) 621-6000info@ascap.comwww.ascap.com

Broadcast Music, Inc. (BMI)(800) 925-8451www.BMI.comgenlic@BMI.comSociety of European Stage Authors and Composers (SESAC)(800) 826-9996(212) 586-3450license@sesac.com

Harry Fox Agencywww.harryfox.com

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WHERE TO GET PERMISSION - AUDIOVISUAL

Limited portions of audiovisual works may be performed for education under fair use.

Entire portions may only be shown for education or entertainment if you have permission.

Permission granting agency: Motion Picture Licensing Corporation (MPLC)

info@mplc.comwww.mplc.com(800) 462-8855(310) 822-8855

If you have trouble getting permission through the agencies, you can try the publisher directly, but you will need much time, patience, and luck.