Tag Archives: copyright law

Ensuring Copyright Compliance the Easy Way

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Here’s two online videos that describe copyright and how to re-use content in a legal manner. Though the videos deal mostly with using printed materials, they are good as a guide for using music as well.

The videos were produced by the Copyright Clearance Center.

Copyright Clearance Center (CCC) is a global rights broker for millions of the world’s most sought after materials, including in- and out-of-print books, journals, newspapers, magazines, images, blogs, ebooks and more.

CCC’s six minute Copyright Basics video is a great way to get an overview of copyright. It covers everything from the origins and reasons for copyright laws to what is not protected under copyright laws.

The second video gives more specifics on how copyright laws can be inadvertently violated in your workplace. Watch CCC’s video Copyright @ Work. This video introduces you to the typical ways employees unintentionally (or intentionally) ignore copyright laws in the workplace and how you can easily resolve the problem to ensure you and your employees are within the law.

About the Copyright Clearance Center
Copyright holders simply enroll at Rights Central and they’re ready to earn royalties on the creative content for which they have copyrights. CCC makes the content easily searchable and then sends the copyright holder a single check for all royalties on all content the holder has in the CCC system. This saves companies from managing hundreds or thousands of royalty checks and working out details with hundreds or thousands of people who wish to use their content. Musicians will recognize this organization as similar to Performance Rights Organizations (PROs) ASCAP, BMI, SESAC

On the content user’s side, CCC eliminates the hassle of contacting copyright holders and waiting days, weeks, or even months for a reply that authorizes use of copyrighted content. Too often even people who are aware of copyright laws ignore them because getting permission is extremely time consuming.

With CCC, businesses or educational institutions can simply pay an annual fee that gives them authorization to use anything in the CCC database. No longer do you have to wait weeks for a response and pay out numerous checks to get authorization to use copyrighted material. With CCC you can pay once and help yourself to copyrighted materials all year long.

The Tricky Task of Defining “Fair Use” in an electronic world

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Almost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

Copyright, Fair Use and the Internet

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This fine article from Forbes.com describes the current cloud surrounding interpretations of legal doctrine of Fair Use.  The Fair Use doctrine is a part of USA  Copyright law that describes the conditions that have to be in place when using copyrighted material without permission from the creators.

Digitization and the Internet have blown the issue of what is and what is not “Fair Use” up beyond anyone’s imagination.  When the concept was originally set as part of copyright law, Fair Use was to

  1. facilitate the quotation of excerpts in a review or criticism for purposes of illustration or comment
  2. allow for the reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  3. allow the reproduction of a work in legislative or judicial proceedings or reports;
  4. to allow the incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

The Forbes.com article, written by Dan Fisher and Dirk Smillie makes these important points…

The real problem? Copyright laws never anticipated a time when people would be able to broadcast essentially private content all over the world, including scraps of copyrighted material.

Yet for all its importance, [Fair Use] remains a tricky concept courts determine on an agonizing case-by-case basis–making it difficult to determine whether the Next Big Thing on the Web is providing a valuable public service or violating copyright law on a wholesale basis. Judges must consider the nature of the work that has been copied, how much of it has been copied, and whether the copying hurt the ability of the content owner to make money off of it.

Today’s tug-of-war is mainly between Internet content providers, who use the doctrine of Fair Use as the rational behind posting copyrighted material without permission and content creators who believe that some content web sites are infringing on their copyrights and thus their right to earn money from their creations.

In the end, it’s about money. You have web content providers using Fair Use to enhance their business model on one hand and on the other, you have the content creators who feel that today Fair Use is being used to take money away from them.

Yoko Ono loses copyright suit over use of Lennon’s Imagine

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On June 2nd, the judge in the copyright infringement case Yoko Ono brought against the creators of the film “Expelled” for their use of John Lennon’s song Imagine has ruled in favor of the filmmakers based on a the “fair use” doctrine.

U.S. District Judge Sidney Stein rule that “the doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”.

You can read the judges entire decision here. Those interested in the fair use doctrine should take the time to read the judges opinion because he very thoughtfully describes and then rules on each of the criteria that make up fair use.

  • The Purpose and Character of the Use
  • 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 of the Use Upon the Potential Market for or Value of the Copyrighted Work

    • The judge’s decision seemed mainly to rest on a subsection of “The Purpose and Character of the Use”, namely Transformative Use. Here is the ruling.

    ii. Transformative Use
    A work is transformative if it does not “merely supersede the objects of the original
    creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”

    There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. 107: criticism, comment, news reporting, teaching . . ., scholarship, or research.

    Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naivety of John Lennon’s views.

    Conclusion Regarding Fair Use
    The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . . . than [would] preventing it.”

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    Ono’s position had been that she had the right to control use of the song by reviewing and choosing licenses. She also had the right to reject uses of the song. She brought the suit because she believe the filmmakers had “looted her of the ability to do so”.

    Fair Use of Lennon’s Imagine in Expelled?

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    Yoko Ono’s attempt to get an injunction against the film “Expelled: No Intelligence Allowed.” will shine a much needed light on current interpretations of the “fair use” provision of copyright law. Fair use is easily the haziest and least understood aspect of US copyright law.

    Yoko Ono (and EMI and Capital Records) is seeking to have about 15 seconds of John Lennon’s recording of Imagine removed from the film. The injunction doesn’t ask for the film to be removed from theaters, it is asking for Lennon’s music to be removed from the film.

    from the New York Times coverage…

    Ono sued in state and federal court, accusing the movie’s producers of infringing on the song’s copyright by using parts without her permission.

    The movie, which opened on U.S. screens in April and is set for release in Canada on June 6 and on DVD in October, presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone.

    The filmmakers acknowledge they did not ask Ono for permission to use 15 to 20 seconds of the song. But they argue they are protected by the ”fair use” doctrine, which permits small parts of a copyrighted work to be used without an author’s permission under certain circumstances.

    At a hearing in U.S. District Court in Manhattan this week, the filmmakers’ lawyer, Anthony T. Falzone, said that if the judge granted Ono’s request for an injunction against the film, it would ”muzzle” the filmmakers’ free-speech rights.

    Falzone said the segment of the song in the film — ”nothing to kill or die for, and no religion too” — was central to the movie because ”it represents the most popular and persuasive embodiment of this viewpoint that the world is better off without religion.”

    The film, he said, is ”asking if John Lennon was right and it’s concluding he was wrong.”

    [Sidenote] Actually I don’t think John Lennon was saying in Imagine that the world would be better off without religion, I think he was saying that people get tied to their own particular beliefs and by doing so a lot of trouble is created in the world. Imagine is about breaking out of boundaries that are created by oneself.[end Sidenote]

    The filmmakers’ attorney, Anthony Falzone is the executive director of the Fair Use Project and a lecturer in law at Stanford University. He believes very strongly that copyright law, as it stands now, is in major need of reform. You can read his brief in this case here.

    I notice that Mr. Falzone is associated with the Center for Internet and Society at Standford Law School. This is not surprising. A large faction of those that work and think about the Internet (Wired, Fast Company) would like to broaden current interpretations of copyright law and especially fair use.

    Getting to a contemporary interpretation of fair use is incredibly important because of the use or misuse of copyrighted work on the Internet. Part of YouTube’s main defense against Viacom will be arguing fair use (amongst other things like DMCA).

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    What the law says about fair use…
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    107. Limitations on exclusive rights: Fair use

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by 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

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    Richard Prince and the art of Fair Use

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    In a world where it has become incredibly easy to make exact copies of others work, when, if ever, does that work become your own?

    This is the overriding question in a New York Times article, published on December 6th, entitled If the Copy Is an Artwork, Then What’s the Original?.

    The article, written by Randy Kennedy, is about the working methods of the artist
    Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.

    One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.

    The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society – images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.

    But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.

    The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”

    Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition – the conception, the pose, the exact moment to capture – these things were decided by Krantz and re-used by Richard Prince.

    The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…

    Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.

    My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
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    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
    —————

    (1) clearly Richard Prince’s art is of a commercial nature.
    (2) a photograph is a copyrightable work.
    (3) in some cases, it appears that Prince has used 100% of the copyrighted work.
    (4) this is the main issue – the effect upon the potential market for or value of the copyrighted work – when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.

    Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”

    Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
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    UPDATE: A year later, in December 2008, Richard Prince would lose a copyright infringement suit when the judge ruled his use of photographs by Patrick Cariou was not Fair Use as outlined by copyright law.
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    UPDATE: Just want to reference this very good article which was published in the Wall Street Journal, March 25, 2011 entitled When Appropriation Masquerades as Reconceptualized Art. The writer, Eric Felten, reports on the Patrick Cariou vs Richard Prince/Gagosian Gallery copyright infringement case which involved Prince’s use of photographs from the book “Yes, Rasta,” by French photographer Patrick Cariou. Cariou spent six years taking pictures of Rastafarians in Jamaica. Prince lost the case.
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    Copyright 2.0, a new podcast discussing recent copyright headlines

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    I’ve been listening to a fairly new podcast created by Chris Matthieu, the founder of Numly and Jonathan Bailey, writer of the blog Plagiarism Today. In their podcast, titled, the Copyright 2.0 show, they discuss many copyright and intellectual property issues that have made recent headlines. What’s more, links to all news stories they discuss are made available through a del.icio.us page.

    The podcast is fairly low-key and conversational. Both Chris and Jonathan stress that they are not lawyers and are not offering advice on copyright law, they are examining copyright in this era of Web 2.0 and digital information.

    You can hear the podcast by clicking on the “Play” button on the player below. There are several shows to choose from.

    Seth Godin’s mistaken PowerPoint advice

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    Seth Godin, author of Permission Marketing, Purple Cow, and a ton of really great books on successful marketing, wrongly recommends that presenters should include music from their personal CD collections in their public PowerPoint presentations.

    The blog post entitled Really Bad PowerPoint, offers five rules to create amazing PowerPoint presentations. Rule number four states:¦

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    Sound effects can be used a few times per presentation, but never use the sound effects that are built in to the program. Instead, rip sounds and music from CDs and leverage the Proustian effect this can have. If people start bouncing up and down to the Grateful Dead, you’ve kept them from falling asleep, and you’ve reminded them that this isn’t a typical meeting you’re running.
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    You will breaking copyright law if you give a PowerPoint presentation following Seth’s advice here. Unfortunately, you cannot just rip your personal CD collection and attach those tracks to your slides. When you purchase a CD you are not licensed to use the music for anything other than your personal enjoyment. To use music in a commercial vein, you need to obtain permission from the music’s publisher and the recording company (more about the music licensing process).

    This shows that even a savvy guy like Seth Godin can be fuzzy about copyright laws. It makes me wonder how often this practice goes on in corporate America. How often have you seen a PowerPoint presentation accompanied by music that the presenter ripped from his/her CD library?

    Royalty Free Music companies like UniqueTracks offer fast and easy music licensing to media producers who in turn, integrate the music into their DVDs, videos, podcasts, radio and TV advertising, Flash and Powerpoint presentations and music-on-hold programming.

    More copyright lawsuits for YouTube

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    Add England’s Football Association Premier League as the latest group to sue YouTube for violating copyright law.

    Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”

    It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.

    When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.

    I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?

    The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.

    Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.