Glossary

12.1 Understanding copyright, fair use, and intellectual property

6 min read•august 13, 2024

, , and are crucial concepts in media law and ethics. They protect creators' rights while allowing limited use of copyrighted material for specific purposes. Understanding these principles is essential for media professionals to navigate legal and ethical boundaries.

Media writers must grasp the nuances of copyright law, including exclusive rights, duration, and infringement. Fair use allows limited use of copyrighted material without permission, but its application requires careful consideration of factors like purpose, nature, amount used, and market impact.

Defining Key Concepts

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  • Copyright is a form of intellectual property protection that grants the creator of an original work exclusive rights to its use and distribution for a limited time period
  • Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders, based on the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work
  • Intellectual property refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce, which are protected by law through patents, copyrights, and trademarks
  • In the context of media writing, copyright protects original works of authorship, including literary, dramatic, musical, and artistic works (books, articles, photographs, videos, music), while fair use allows for limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
  • Copyright protection is automatic as soon as a work is created and fixed in a tangible form, and it grants the copyright owner exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the original
    • Example: As soon as a photographer captures an image and saves it to a memory card, the photograph is protected by copyright
  • The duration of copyright protection varies depending on factors such as the date of creation, publication, and the nature of authorship, with most works created after 1978 being protected for the life of the author plus 70 years
  • Copyright applies to various forms of media, including books, articles, photographs, videos, music, and digital content, and it protects both published and unpublished works
  • occurs when someone uses a copyrighted work without permission from the copyright owner, except in cases where fair use or other legal exceptions apply
    • Example: Downloading and sharing a copyrighted movie online without permission would constitute copyright infringement
  • The (DMCA) addresses copyright issues specific to digital media, providing safe harbors for online service providers and establishing procedures for dealing with infringing content

Exclusive Rights and Duration

  • Copyright protection grants the copyright owner exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the original
  • The duration of copyright protection varies depending on factors such as the date of creation, publication, and the nature of authorship
    • For most works created after 1978, copyright protection lasts for the life of the author plus 70 years
    • For works made for hire or anonymous works, copyright protection lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter
  • Once the copyright term expires, the work enters the and can be used freely by anyone without permission

Infringement and Digital Media

  • Copyright infringement occurs when someone uses a copyrighted work without permission from the copyright owner, except in cases where fair use or other legal exceptions apply
  • Examples of copyright infringement include reproducing, distributing, or creating derivative works based on a copyrighted work without permission
    • Copying and pasting a substantial portion of a copyrighted article into a blog post without permission would likely constitute infringement
    • Creating fan art based on copyrighted characters without permission could also be considered infringement, depending on the extent of the use and other factors
  • The Digital Millennium Copyright Act (DMCA) addresses copyright issues specific to digital media
    • The DMCA provides safe harbors for online service providers (YouTube, Facebook) that limit their liability for user-generated content that infringes copyright, provided they follow certain procedures for dealing with infringing content
    • The DMCA also prohibits the circumvention of technological measures that control access to copyrighted works (digital rights management or DRM)

Fair Use Scenarios

Evaluating Fair Use Factors

  • The purpose and character of the use should be considered, with transformative uses that add new , meaning, or value to the original work being more likely to qualify as fair use than uses that merely reproduce the original
    • Example: A parody of a copyrighted work that comments on or criticizes the original is more likely to be considered fair use than a verbatim copy of the work
  • The nature of the copyrighted work is important, as the use of factual, non-fiction works is more likely to be considered fair use than the use of highly creative or unpublished works
    • Example: Quoting a few sentences from a news article in a research paper is more likely to be considered fair use than reproducing a substantial portion of an unpublished novel
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole should be examined, with the use of smaller, less significant portions being more likely to be considered fair use than the use of large or central parts of the work
    • Example: Using a short clip from a movie in a video essay analyzing the director's techniques is more likely to be considered fair use than uploading the entire movie to a video-sharing platform
  • The effect of the use upon the potential market for or value of the copyrighted work must be assessed, as uses that have a significant negative impact on the market for the original are less likely to be considered fair use
    • Example: Distributing free copies of a copyrighted textbook to students could significantly impact the market for the original and would be less likely to be considered fair use

Case-by-Case Analysis

  • Fair use determinations are made on a case-by-case basis, considering all four factors and balancing the interests of the copyright owner with the public's interest in the free flow of information and ideas
  • Examples of fair use in media writing might include:
    • Quoting a portion of a copyrighted work in a book review or critical analysis
    • Using a copyrighted image in a news article reporting on the work or its creator
    • Incorporating short clips of copyrighted music or video in a classroom presentation for educational purposes
  • However, the specific facts of each case must be evaluated to determine whether the use qualifies as fair use

Attribution and Permissions

Avoiding Plagiarism

  • Proper of sources is essential to avoid plagiarism, which is the act of presenting someone else's work or ideas as one's own without giving credit to the original author
  • Attributing sources demonstrates respect for the intellectual property rights of others, acknowledges the contributions of other creators, and provides readers with the information needed to locate and verify the original sources
  • Examples of proper attribution include:
    • Citing sources using a standard format (MLA, APA, Chicago) in academic writing
    • Providing links to original sources in online articles or blog posts
    • Crediting authors, photographers, or other creators when using their work in multimedia projects

Obtaining Necessary Permissions

  • When using copyrighted material beyond the scope of fair use, it is necessary to obtain permission from the copyright owner to avoid infringement and potential legal consequences
  • Obtaining permissions involves identifying and contacting the copyright owner, explaining the intended use of the material, and negotiating any necessary terms, conditions, or licensing fees
  • Examples of situations where permission may be required include:
    • Reproducing a copyrighted image on a book cover or in promotional materials
    • Using a substantial portion of a copyrighted text in a commercial publication
    • Incorporating copyrighted music or video in a film or television program
  • Failure to properly attribute sources or obtain necessary permissions can result in legal action, monetary damages, and reputational harm, underscoring the importance of understanding and adhering to copyright law and ethical practices in media writing

Key Terms to Review (21)

Anti-circumvention: Anti-circumvention refers to laws and regulations designed to prevent individuals or organizations from bypassing copyright protection measures that control access to copyrighted works. This concept plays a crucial role in protecting intellectual property rights by making it illegal to circumvent digital rights management (DRM) technologies, thereby ensuring that creators and owners maintain control over their works. The relationship between anti-circumvention and copyright law is essential for upholding fair use and protecting the interests of content creators in the digital age.
Attribution: Attribution is the practice of giving credit to the original source of information, quotes, images, or any form of intellectual property used in media. This practice not only acknowledges the contributions of others but also helps to establish credibility and trust with the audience. Proper attribution is essential in avoiding plagiarism, respecting copyright laws, and ensuring transparency in the dissemination of information.
Campbell v. Acuff-Rose Music, Inc.: Campbell v. Acuff-Rose Music, Inc. is a landmark Supreme Court case from 1994 that addressed the limits of copyright protection and the doctrine of fair use, specifically in relation to music sampling and parody. This case established that transformative use, like parody, can qualify for fair use even if it involves a commercial purpose, thereby influencing how copyright law applies to creative works.
Copyright: Copyright is a legal right that grants the creator of original works exclusive control over the use and distribution of their creations, including literature, music, and art. This protection encourages creativity by allowing creators to reap the benefits of their work without unauthorized use by others. Copyright is a crucial aspect of intellectual property law, which also encompasses fair use, ensuring that certain uses of copyrighted material can occur without permission under specific conditions.
Copyright infringement: Copyright infringement occurs when someone uses, reproduces, or distributes a copyrighted work without the permission of the copyright holder. This illegal action not only violates the rights of the creator but also raises significant issues regarding fair use and intellectual property. Understanding copyright infringement is crucial for navigating the legal landscape of creative works and for balancing the rights of creators with public access to information.
Copyright Office: The Copyright Office is a division of the United States government responsible for administering copyright laws and protecting the rights of creators. It plays a crucial role in the registration of works, providing legal documentation that can help enforce copyright protections and resolve disputes. By managing registrations and maintaining records, the Copyright Office serves as a vital resource for both creators and users of creative works in understanding their rights and responsibilities regarding copyright.
Creative Commons: Creative Commons is a nonprofit organization that provides free, legally sound copyright licenses for creators to share their work with the public while retaining some rights. These licenses allow creators to define how their work can be used by others, promoting the sharing and reuse of creative content in ways that comply with copyright laws. By facilitating a balance between copyright protection and public access, Creative Commons encourages collaboration, innovation, and the democratization of knowledge.
Digital Millennium Copyright Act: The Digital Millennium Copyright Act (DMCA) is a U.S. law enacted in 1998 that aims to update copyright laws to address the challenges posed by the digital environment. It primarily provides a framework for protecting copyrighted materials online, balancing the rights of copyright owners with the interests of users by establishing rules for fair use and safe harbor provisions for online service providers.
Digital watermarking: Digital watermarking is a technique used to embed information into digital media such as images, audio, and video files without altering the original content. This method is crucial for identifying ownership, tracking usage, and protecting the intellectual property rights of creators. By embedding a unique code or signal within the media, digital watermarking helps to combat piracy and ensure that proper credit is given to the original creator while maintaining the integrity of the content.
Expression: Expression refers to the act of conveying thoughts, feelings, or ideas through various forms of communication, including written, spoken, or artistic means. It plays a crucial role in the realm of copyright and intellectual property, as it encompasses the original works created by individuals that are protected under copyright law. Understanding expression helps clarify how creators can protect their unique ideas while allowing for fair use in a way that respects the rights of original authors.
Fair use: Fair use is a legal doctrine that allows limited use of copyrighted material without requiring permission from the rights holders. It is an important aspect of copyright law, balancing the interests of copyright owners with the public's right to access and use creative works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. This doctrine helps encourage creativity and the dissemination of knowledge while still protecting the rights of creators.
Harper & Row Publishers, Inc. v. Nation Enterprises: Harper & Row Publishers, Inc. v. Nation Enterprises is a landmark Supreme Court case decided in 1985 that addressed the issue of copyright infringement and the fair use doctrine. The case involved the unauthorized publication of excerpts from Gerald Ford's memoir by The Nation magazine, which was ruled as not constituting fair use, emphasizing the importance of protecting an author's rights over their unpublished works and setting a precedent for future copyright cases.
Intellectual Property: Intellectual property refers to the legal rights that protect creations of the mind, such as inventions, artistic works, and symbols. These rights enable creators to control the use of their creations and can include various protections like copyrights, patents, and trademarks. Intellectual property plays a crucial role in encouraging innovation and creativity by ensuring that creators can benefit from their work and preventing unauthorized use by others.
Licensing agreement: A licensing agreement is a legal contract between two parties where one party grants permission to another to use its intellectual property under specified conditions. This agreement often includes details such as the scope of use, duration, and compensation, making it essential for protecting the rights of the intellectual property owner while allowing others to benefit from it. Licensing agreements are crucial in navigating the realms of copyright, fair use, and intellectual property.
Moral Rights: Moral rights are the rights of creators to protect their personal and reputational interests in their works, independent of copyright. These rights include the right to attribution, ensuring the creator's name is associated with the work, and the right to integrity, which allows the creator to object to any distortion or modification of their work that could harm their reputation. Moral rights play a crucial role in safeguarding the personal connection between creators and their creations, particularly in the context of copyright, fair use, and intellectual property.
Originality: Originality refers to the quality of being novel or unique in thought, expression, or creation. It is a crucial concept in the realm of copyright, fair use, and intellectual property because it determines whether a work is eligible for protection. Original works can include artistic creations, written texts, and inventions, and they must demonstrate a certain level of creativity to be protected by law.
Patent: A patent is a legal right granted by the government to an inventor, giving them exclusive rights to their invention for a specified period, usually 20 years. This right prevents others from making, using, or selling the invention without the inventor's permission. Patents encourage innovation by allowing inventors to benefit financially from their creations while contributing to the body of knowledge in various fields.
Public domain: Public domain refers to creative works that are free for use by anyone without permission or payment. These works are not protected by copyright or other intellectual property laws, meaning they can be freely accessed, shared, and modified by the public. Understanding public domain is essential in discussions about copyright, fair use, and the protection of intellectual property rights.
Royalty: Royalty refers to the payment made to creators, such as authors, musicians, or inventors, for the use of their intellectual property. This compensation is typically calculated as a percentage of sales or profits generated from the use of their work, ensuring that creators are financially rewarded for their contributions. Understanding royalty is essential in discussions surrounding copyright and fair use, as it directly relates to how intellectual property rights are enforced and respected in various media industries.
Trademark: A trademark is a recognizable sign, design, or expression that identifies products or services of a particular source from those of others. Trademarks serve to protect the brand identity of businesses and ensure that consumers can distinguish between different companies and their offerings. By securing exclusive rights to a trademark, businesses can prevent others from using similar marks that could cause confusion in the marketplace.
Transformative use: Transformative use refers to a legal doctrine that allows individuals to use copyrighted material in a way that adds new expression, meaning, or message to the original work, thus making it eligible for fair use protection. This concept is critical in balancing the rights of creators with the public's interest in creativity and expression. Transformative use often arises in the context of art, commentary, or parody, where the new work significantly alters the original in some meaningful way.
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