Fair use and copyright
Fair use and copyright are the most complex issues in publishing and writing, and there are no pat answers I can provide, or rules you can just follow easily. Copyright decisions are based on case law; that is, a lawsuit has taken place and a judge has made a decision in favor of the copyright holder or the person who distributed, reproduced or modified the original work.
As this book is written for students, the author is not addressing copyright or fair use as it applies to commercial and non-commercial publications, or use by instructors. We will only address US copyright here and fair use as it may impact you in writing a paper or creating a presentation for a class. Anything higher than that, and you definitely need to speak with an attorney who specializes in intellectual property rights.
As mentioned previously, copyright exists once an original idea, image, words, recording, etc. are set down. You don’t have to pay a fee to the government to claim copyright (though it certainly helps to register your copyrighted work if you wind up in court).
There is an excellent resource called Circular 1: Copyright Basics from the US Government (2012) which you should be familiar with before using anyone else’s original work. Circular 1: Copyright Basics outlines the rights of the copyright holder (the creator of the original work) as follows:
A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation… (5)
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 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
- perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission (1)[i]
According to Steve Schlackman in Art Law Journal, copyright currently exists from the “‘life of the author plus 70 years,’ and extends copyrights for corporate works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first.”[ii]
After that, original works move into the public domain and are not subject to copyright law (as of this writing). You’ll still want to cite the source of your public domain resources.
Creative Commons licensing was a direct response to the restrictions of copyright, where creators of original works wanted others to freely redistribute their work or sometimes allow it to be re-used with modification. Creative Commons sources are a good first choice for media, provided that the licensor actually held the rights to distribute in the first place. For more on Creative Commons licensing, see https://creativecommons.org/licenses/
So, how is it possible to use a part of a copyrighted work in a school project? That’s where something called Fair Use comes in: “Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses — such as criticism, comment, news reporting, teaching, scholarship, and research — as examples of activities that may qualify as fair use.” (US Government 2017)[iii]
Fair Use, is even more complex than copyright, and is decided on case law, that is, on a case-by-case basis. It changes so frequently that there is an index of cases online for it on Copyright.gov. I’m no lawyer, so I’ll let the US Copyright Office speak for itself on the four factors of Fair Use:
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
(US Government 2017) [iv]
Michael Brewer and the ALA Office for Information Technology have created a Fair Use Evaluator to document for yourself why you think something is fair use of another’s original work. It’s not legal advice and is well worth a look for teachers, writers, and creators, as well as students. Find it at: librarycopyright.net/resources/fairuse/toc.php
[ii] Schlackman, Steve. “How Mickey Mouse Keeps Changing Copyright Law.” Art Law Journal. February 15, 2014. http://artlawjournal.com/mickey-mouse-keeps-changing-copyright-law/ (accessed January 13, 2017).