“Borrowing” Graphics and Text for Web Pages:

Fair Game, Fair Play and Fair Use

Presenters:Mary Minow, J.D., A.M.L.S.

LibraryLaw.Commm@librarylaw.Com

Kim Lim – Librarian, Skyline College

Wednesday, March 19, 20032:00 p.m. to 4:00 p.m.

Legal Disclaimer

• Legal information

• Not legal advice!

Borrowing Graphics & Text for Instructional Web

Pages

1. Overview and Flow Chart2. Public domain3. Fair use 4. Risk evaluation5. Permission

Copyright: Overview

The Congress shall have 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

U.S. Const., Art. I, § 8, Cl. 8

OwnersUsers

Big Balance: How to Promote Progress

• Copyright given to more worksoriginal works of authorship fixed in any tangible medium of

expression NO REGISTRATION

NO NOTICE ©• Bono Act: adds 20 years to copyrights

– Challenged by Eldred v. Ashcroft at Supreme Court (May 20, 2002)

- Supreme Court upheld 1998 decision on Jan. 15 2003.

OwnersUsers

Copyright: Recent Developments

Subject matter of copyright

Is the work protected?

How can you decide whether it’s OK to use other people’s material on the Web?

Public Domain? Ok to use Yes

How can you decide whether it’s OK to use other people’s material on the Web?

Public Domain? Ok to use

Fair Use?

No

Use it according to your risk tolerance

Yes

Probably

How can you decide whether it’s OK to use other people’s material on the Web?

Public Domain? Ok to use

Fair Use?

No

Get Permission

No

Use it according to your risk tolerance

Yes

Probably

Facts

Recipes

Ideas

Dedicated works

Government works (U.S.)

Expired works

Public Domain: In the

FRIDGE

Fridge

• Library address, hours• Call numbers• URLs• Population statistics• Maps

FACTS

Compilations of Facts

• Directories• Bibliographies• Pathfinders• List of links• Cookbooks

Court CasesDatabase Producers Lose

Telephone white pages - not original-no copyright

• Feist v. Rural Telephone Service 499 U.S. 340 (1991)

Yellow pages - not original-no copyright• BellSouth Advertising v Donnelly 999 F.2d 1436 (11th Cir.

1993)

School selection criteria - no copyright• Schoolhouse v. Anderson No. 00-3939 (8th Cir. Jan. 2002)

Users owners

Database and Collections of Information Misappropriation Act

• “Makes civilly liable any person who makes available in commerce to others a substantial part of the information contained in a database generated, gathered, or maintained by another person without authorization.”

• “Provides civil remedies, including temporary and permanent injunctions and monetary relief for damages.”

Database and Collections of Information Misappropriation Act• Exceptions for:

– (1) independently generated or gathered information; – (2) certain reasonable use by a nonprofit educational,

scientific, and research institution; – (3) hyperlinking one online location to another; and – (4) making such information available for the primary

purpose of news reporting.• Excludes from protection under this Act:

– (1) government and Federally mandated databases; and– (2) computer programs.

FRidgeMere listings of ingredients as

in recipes, formulas, compounds or prescriptions = NO COPYRIGHT

Recipe or formulas accompanied by substantial literary expression or when there is a combination of recipes, as in a cookbook= Copyright

RECIPES

• Not copyrightable

• Not copyrightable

• Not copyrightable

FrIdge

IDEAS

Stack of Books - Great Idea!

NOT COPYRIGHTABLE

Ideas, processes, methods, and systems described in copyrighted

works

• TITLE 17 > CHAPTER 1 > Sec. 102.

(b) 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 discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work

Note: works that are not protected by copyright law may

be protected by other laws.

•

FRIDGE

“Original material and added value in Library Juice is dedicated to the public domain; beyond that the publisher makes no guarantees”

www.libr.org/juice

DEDICATED

Freeware

Freeware

• Not shareware • Really, expressly, available free of

restrictions-ware • The author has chosen to make it

available without any restrictions

DEDICATED

GOVT (U.S.)

FRIDGE

Govt (U.S.) works PUBLIC DOMAIN

States - only cases, codes • or if dedicated

• copyright is source of income in California

• warning: some codes written by private parties

17 U.S.C. 105

Title 17>Chapter 1>Sec. 105. - Subject matter of copyright: United States

Government works

• Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

FRIDGE• Life plus 70• Corporate works

– 95 years from publication or

– 120 years from creation

EXPIRED

FRIDGE• Life plus 70• Corporate works

– 95 years from publication or

– 120 years from creation

EXPIRED

Check back in 60+ years

WHEN WORKS PASS INTO THE PUBLIC DOMAIN

http://www.unc.edu/~unclng/public-

d.htm

Checking the Public Domain for Images

No images there

YES - Good sources

CHECK BACK in 60+ yrs

But Is Image in the Public Domain? Check the FRIDGEFacts, Recipes, Ideas

Dedicated,Government

(U.S.)

Expired

“Dedicated” Clip Art - by whom?

Naive “dedications”

Yahright! -it was funRightsforartists.com

License termslink backcreditlimited use

Government Images

Domain .gov

Image search for parking meter in “.gov”

Stephen FishmanThe Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More

(Nolo Press, 2001)

Public Domain Resource

It’s in the FRIDGE but I still can’t get it!

• Welcome to Public Domain Images– inexpensive! Only $50 each!– museum images

• Welcome to the PICLE

The Pickle of Protecting Work [PICLE]

(OR THE ART OF ENCASING WORKS IN JARS)

•Physical Impossibility

•Copyright

•Licenses

•Encryption

The Pickle of Protecting Work [PICLE]

(OR THE ART OF ENCASING WORKS IN JARS)

•Physical Impossibility

•Copyright

•Licenses

•Encryption plus

[Database legislation-proposed]

Flowchart Again: Fair Use

Public Domain? Yes

Ok to use

Fair Use?

No

Get Permission

No

Probably Use it according to your risk tolerance

Court will Use PNAM Factors•Purpose

•Nature of work

•Amount

•Market harm

Fair Use?

Fair Use

“…the fair use of a copyrighted work...for purposes such as criticism, comment … 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…[PNAM]”

17 U.S.C. 107

Fair Use-Purpose

LikelyYES

LikelyNO

Your WebPage

Nonprofit

+Commercial

PNAM

“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”

Fair Use-Purpose

LikelyYES

LikelyNO

Createsnew work +

Merelycopies -

thumbnails index as a “new work”Kelly v Arriba, 2002 U.S. App. LEXIS 1786

PNAM

Fair Use- Nature of Work

LikelyYES

LikelyNO

Thincopyright

referencedirectories,science,history +

Strong Creativefiction artmusic -

PNAM“the nature 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”

Fair Use-Nature of Work

LikelyYes

LikelyNo

Work“borrowed”

published + unpublished

PNAM

Fair Use-Amount & Substantiality

Likely Yes

Likely No

Amount & Substantiality

Small in relation to whole (of original) +

Whole or “heart”

Your Web Page

Use small amts +

PNAM

“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”

PNAMPNAMPNAM

Fair Use-Purpose

http://ctlonline.net/webreadyplus/lesson9_copyright.asp - artisticstandards

Examples

PNAM

Fair Use-Market Effect

LikelyYes

LikelyNo

Market Doesn’thurt marketfor theoriginal +

Potentiallyhurts market

Case Study: Campbell v. Acuff-Rose Music“2 Live Crew’s Pretty Woman”

Date Released in July 1989 based on Roy Orbison and William Dees’ 1964 creation “Oh, Pretty Woman."

Credit given? Yes. Orbison and Dees were credited on the Crew album.

Modification? -lyrics changed;

-added interposed scraper noises, overlays of solos in different keys, and an altered drum beat.

Fair use: Parody

• "in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before."Emerson v. Davies,8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)

Fair Use-Summary

Likely Yes Likely No

PurposeNonprofitCreate new

work +

CommercialNo new work

NatureReference,nonfiction

Published +

Fiction, ArtMusic

Unpublished

AmountSmall amt(relative towhole

original) +

Complete workHeart of work

MarketDoesn’t hurtmarket of

original +

Hurts market orpotential marketof original

A Lid on Fair Use

Licenses

Encryption - DMCA has anticircumvention provisions

[Database legislation proposed]

Lawsuits look for deep pockets

Registered ©

$750-$30,000 per Incidentwillful up to $150,000 innocent as low as $200

Library Staff = $0if basis to believe FAIR USE (Law is Kind to libraries)

17 U.S.C. 504 (c)

Risk Evaluation

• Good Faith Analysis• Take-down policy• Insurance• Disclaimers

– Library of Congress examples• http://memory.loc.gov/ammem/copyrit2.html

• http://www.loc.gov/rr/print/catalog.html

Risk Management

Flowchart Again: Get Permission

Public Domain? Yes

Ok to use

Fair Use?

No

Get Permission

No

Probably Use it according to your risk tolerance

• Determine copyright holder– Copyright © 2002 Mary Minow

• Identify rights you need– nonexclusive, in perpetuity

• Email permission is okay• Keep on file

Get Permission

I am the owner to the rights to Title of Work and I authorize a nonexclusive right to reproduction, distribution, adaptation, performance and/or display by ______Library

Sample Formshttp://www.librarylaw.com/perm.htm

Permission Form

• Copyright Clearinghouse (text) www.copyright.com

• Corbis.com - (photographs)• Art Resource (fine art)- artres.com• Cartoonbank.com (New Yorker)

Copyright Clearinghouses $

Copyright registration forms

http://www.copyright.gov/forms/

Richard StimGetting Permission: How to License & Clear Copyrighted Materials Online & Off

(Nolo Press, 2000)

Permission Resource

Summary: How can you decide whether it’s OK to use other people’s

material?

Public Domain? Yes Use it if in

the FRIDGE

Fair Use?

No

Get Permission

No

ProbablyPNAM and risk tolerance