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Don’t Steal my Stuff

December 3, 2010

My blog topic for this week, is about Fair Use and Copyright. There seems to be a lot of confusion out there regarding what you do have the right to use, and what you don’t. Many think just because a photo or image is visible on the internet it allows you to utilize it in your materials. Not always the case.

As a Marketing Consultant and Graphic Designer, I am constantly educating my clients about how to best protect their materials and information. However, I needed a refresher myself! As we explore the internet, we realize that individuals and companies are pushing the boundaries. Therefore, it is important that we continually address these various challenges.

The following information was provided by Attorney Sharra S. Brockman, Esq. Her law firm Verv focuses on protecting intellectual property: trademark and copyright registration, infringements, licensing, and right of publicity.


Fair Use & Copyright

Where It Blooms Blog Article, 11/29/10
(written by Sharra S. Brockman)

If you know your internet memes, you’re probably familiar with the recent Cooks Source debacle.  Blogger Monica Gaudio discovered that one of her original articles was ripped from her website and reproduced in a small, regional magazine called Cooks Source, without her permission and without remuneration.   When Ms. Gaudio emailed the magazine to request an apology, the Cooks Source editor, Judith Griggs, sent a return email which will go down in the halls of copyright history.  “But honestly Monica,” the now infamous email reads, “the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it!”

Most people understand that publishing a creative work on the Internet does not release it into public domain and make it, therefore, fair game for “lifting.”  But what the Cooks Source situation has brought to light within my own practice is that a lot of confusion does exist about how a copyright is obtained and when a protected work may be reproduced under the “fair use” provisions of the U.S. Copyright Act.  What if you want to quote a snippet from a novel?  Or show a video in your classroom?  Or use photos on your blog?

To understand fair use, it’s important to understand the basics of copyright law.]

Although U.S. copyright law gives authors a number of exclusive rights to control the use of their works, public policy favors limiting those rights for certain types of uses.

First, consider the purpose and character of your use. Is your use for non-commercial educational purposes?  Will it transform the protected work by adding new types or forms of expression?  Will it add value to the original?  The Obama “HOPE” Poster by artist Stephen Fairey is an example of how hotly contested this factor can be.  Mr. Fairey relied on a copyright protected photograph when he created his famous “HOPE” poster during President Obama’s 2008 campaign.  This use ignited a copyright battle between Fairy and the Associated Press, which claimed ownership of the photo’s copyright.  Does Fairey’s poster sufficiently transform the original photograph into something new?  The answer will substantially influence the outcome of Fairey’s lawsuit.

The second fair use factor relates to the nature of the protected work. It is beneficial for educational and societal purposes that facts be freely distributed and made available to the public.  For that reason, fair use is more often found where the protected work is heavily fact-based as opposed to creative.  Similarly, fair use of unpublished works as opposed to published works can provide exposure for works that might not otherwise be available to the public.

Third, consider the amount and substantiality of the portion used. The “20% rule” that suggests you can use up to 20% of a protected work without infringing is a MYTH.  Instead, look at how much of the whole you would like to use, and ask how memorable that portion is within the whole.  Using the “heart” of a work – that passage or riff or image that makes up the essence of the original – is less likely to be fair use.

Finally, ask yourself how your use will affect the potential market for the protected work. Will your use deprive the copyright owner of income – will consumers come to you for access to the protected work instead of the copyright owner?  Will your use undermine a potential market for the work?

No single factor is determinative on its own.  Rather, you should think through all the fair use factors when you’d like to use a protected work. In a lesson Cooks Source would have done well to learn, when in doubt, ask for permission or use works that truly are in the public domain.

Feel free to share your thoughts and comments!


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