Copyright and Fair Use

What is Copyright and Fair Use and Why Should I Care?

No, not THAT kind of piracy.

"Piratey" by J.J. source

Most people would not walk into a store and steal a CD of music. Some people reading this probably don't even know what a CD is (it's a small gold colored disc that has digital files on it... but we digress, try Wikipedia for more). Anyway, many of these same people would have no qualms about going online and downloading that same music without paying for it. What's the difference? Is there one? That's an issue of copyright and fair use, and that's the topic of this page. We'll cover copyright, fair use, and the Creative Commons. We'll finish up with some additional resources in case you want to know more about these topics.

Copyright law covers whether or not using something without permission is stealing. "Piratey" probably doesn't care about that, but you should. Stealing is wrong, and can come with serious consequences ("Piratey" has a letter of marque, but you probably don't, so again, we digress. Sorry).

Fair Use is the legal principle that lets us know when it's okay to use a copyrighted work without permission.

The Creative Commons provides a way for people to share and find materials for use without some of the restrictions traditional copyrights impose. It's great for those of us that don't have a letter of marque.

Now, let's go a little more in depth for each of these areas.

Copyright and Fair Use

Copyright-

According to the US Copyright Office, copyright is legally defined as " form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. "

What this means is that the founding fathers recognized that it was important to protect innovators, people who come up with new products, works of art, and other things that make our lives better and richer. Article 1 Section 8 of the US Constitution gives Congress the power to "...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

This provision, and the copyright laws Congress has since passed, mean that when, for example, Weird Al Yankovic makes the work of genius you can see below, he and his record company can perform it, sell it on CD or mp3, perform it at concerts, and any other way he chooses to make money from it, while others cannot.

Artists, like everyone else, like to eat, which requires money. This is what the Founders meant by promoting the progress of science and the arts... People are much more likely to want (and be able to) come up with new products and works of art when they are the ones that get to make money from them, at least for a time. Copyright allows Weird Al to make a living with his songs, so he continues to make them. Sometimes people feel like downloading music without paying for it doesn't hurt anyone, but consider... If nobody paid for music, would artists be able to continue to make it for a living?

So what exactly is covered by Copyright? What does it mean to be "fixed in a tangible medium of expression"? You can find the relevant legal language from Cornell Law School here, but a little more simply it means that it's someone's work which has been recorded somewhere so it will be around for a while. Examples include things like songs, plays, novels, stories, poems, art, pictures, videos, etc.

If it's someone else's work, it's covered by copyright, and you can't use it without permission.

Fair Use-

"But wait a minute!", I hear you cry! (I have very good ears... I'm a teacher) "That's not fair! How can I write a paper, or make a project, or post my opinion on an internet message board, or live my life?"

Fear not, for there is also a provision in the law for something called "Fair Use". This allows people to use copyrighted works without permission in certain limited cases. Referring back to the U.S. Copyright Office, there are four factors to be considered when deciding whether or not a particular use is a fair use. As noted on that page, all the factors are considered together by the courts when deciding if something is fair use or not.

Purpose and character- The copyright exists to protect the ability of people that create content to make money. If you're not trying to make money yourself (for example you're quoting a paper for a school project, or linking to an article in a discussion on the internet), it's more likely that your use will be considered fair use. This is especially true if your work is "transformative", as the US Supreme Court ruled in 1992 that the "...more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. " The Court defined transfomative in that ruling as " ...altering the original with new expression, meaning, or message"

A specific example of this is parody, which that decision specifically mentioned. Now, you might be wondering why this section has a video by Weird Al Yankovic. Part of it, of course, is that he's a genius, as already mentioned. Mainly, however, it's because that song is a parody of one by Coolio.

US Government, Public Domain Source

Weird Al's song has exactly the same music, but it is a fair use, because he changed the lyrics to make the song something else, something funny. It's a parody, and protected by the legal concept of fair use, codified by the Supreme Court.

The purpose provision is also why quoting someone for a school paper, or using someone's video or song in a school presentation is much more likely to be considered a fair use.

Nature of the work- As also noted by the US Copyright office, your use is more likely to be considered a fair use if the work you are taking from is "factual" (like a research paper), and less likely if it's something creative, like a song or play. This means that if you are writing a report about the Mayans, you can quote that National Geographic article you read... you just need to cite the source. That's a fair use.

Amount and Importance- Again looking at the information from the US Copyright Office, we see that a use is more likely to be considered fair if it only involves a small part of the total work. It is less likely to be considered fair if a large portion is used, and/or if the portion used is considered to be the "heart" of the work, in other words the most important creatively. This means that when you're writing that paper on the Mayans, you should cite it for information you got from it, or maybe quote a sentence or two (in quotes), not copy the entire article, put quotes around it, and turn it in.

Effect on the Work's Market Value- Once more the US Copyright Office has what we need. The last standard courts use to determine whether or not a use is fair use is whether or not the use makes it harder for the original copyright owner to sell his or her work. A good example of this can be found at the Stanford University Libraries' Copyright and Fair Use Page of Fair Use Cases, where they report that "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." This made it harder for ex-President Ford to make money from his memoirs, because people had already read some of them, and would be less likely to buy the other magazine.

The Creative Commons

Copyright law exists to protect content creators and make sure they can make a living and have the incentive to keep making new and better things. Money is a powerful motivator. We are all better for it, when we get new and exciting music, or art, or pictures, or books, etc. However, not everyone is motivated by money to create. Many people create things to share, simply for the joy of creation, or to practice, or to make the world a better place. Often, these people want others to be able to use their works, without needing to pay or get permission as is necessary for copyrighted material, but still have their rights protected. This is where projects like The Creative Commons come in. As their website tag reads... "When we share, everyone wins". These licenses are summarized in the handy image below:

By: Creative Commons Aotearoa , source

As can be seen in the chart, there are different levels of license, which determine how restrictive a particular license is. The license this particular image is under, for example, allows a person to share it with others and mix it into something new, as long as proper credit is given.

Using works which are under a Creative Commons License is a great way to make sure to follow copyright law... All of the images on this page are under such a license. Just make sure the license matches the particular use that you're planning, and that you follow the rules that go with it. Look in the "Additional Resources and Citations' sections just below this one for a website that has lots of information and links to help you find media that is covered by a Creative Commons License.

Additional Resources and Citations

Finding Public Domain & Creative Commons Media from the Harvard Law School Library has lots of great resources and links to find works in the public domain (so no copyright applies) and under Creative Commons Licenses

Stanford University Libraries have an excellent website devoted to Copyright Law and Fair Use, including blogs, court cases, and other resources.

Copyright and Fair Use Guidelines does a good job of summarizing the relevant laws and how they apply to students and their work

Citations:

"Creative Commons." https://creativecommons.org/. Accessed 6 Sep. 2018.
"Compact disc - Wikipedia." https://en.wikipedia.org/wiki/Compact_disc. Accessed 6 Sep. 2018.
"Letter of marque - Wikipedia." https://en.wikipedia.org/wiki/Letter_of_marque. Accessed 6 Sep. 2018.
"Creative Commons." https://creativecommons.org/. Accessed 6 Sep. 2018.
"US Copyright Office." https://www.copyright.gov/help/faq/faq-general.html. Accessed 6 Sep. 2018.
"National Archives." https://www.archives.gov/founding-docs/constitution-transcript. Accessed 6 Sep. 2018.
"Fixed in a Tangible Medium of Expression | Wex Legal Dictionary ...." https://www.law.cornell.edu/wex/fixed_in_a_tangible_medium_of_expression. Accessed 6 Sep. 2018.
"Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). - Cornell University." https://www.law.cornell.edu/supct/html/92-1292.ZS.html. Accessed 6 Sep. 2018.
"Summaries of Fair Use Cases - Copyright Overview by Rich Stim ...." 10 Apr. 2017, https://fairuse.stanford.edu/overview/fair-use/cases/. Accessed 6 Sep. 2018.
"Finding Public Domain & Creative Commons Media - Harvard Library ...." 6 Jun. 2018, https://guides.library.harvard.edu/c.php?g=310751&p=2072816. Accessed 6 Sep. 2018
"Stanford Copyright and Fair Use Center." https://fairuse.stanford.edu/. Accessed 6 Sep. 2018.
"Copyright and Fair Use Guidelines- UMUC Library." 11 May. 2018, http://sites.umuc.edu/library/libhow/copyright.cfm. Accessed 6 Sep. 2018.

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