Glossary

12.4 Copyright and fair use

14 min read•august 20, 2024

Copyright law protects creators' original works, granting them exclusive rights to control and profit from their creations. It encourages innovation by rewarding creativity, while balancing public access to knowledge and art.

Fair use allows limited use of copyrighted material without permission, based on factors like purpose, nature, amount used, and . This doctrine aims to foster creativity and education while respecting creators' rights.

  • Copyright is a form of intellectual property protection that grants exclusive rights to creators for their original works, such as literary, dramatic, musical, and artistic creations
  • Copyright law aims to incentivize creativity and innovation by allowing creators to control how their works are used and to receive compensation for their efforts
  • Copyright protection arises automatically as soon as a work is created and fixed in a tangible form, without the need for registration or notice
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  • Encourages the creation of new works by providing creators with exclusive rights to control the use and distribution of their creations
  • Allows creators to financially benefit from their works, incentivizing them to continue creating and sharing their creations with the public
  • Promotes the progress of science, arts, and knowledge by ensuring that creators are rewarded for their efforts and contributions to society
  • Balances the interests of creators with the public's interest in accessing and using creative works
  • Copyright protection grants exclusive rights to the creator for a limited period, after which the work enters the
  • Public domain works are not protected by copyright and can be freely used, reproduced, and adapted by anyone without permission or compensation to the original creator
  • Examples of public domain works include those whose copyright has expired (Shakespeare's plays), works created by the U.S. federal government, and works deliberately placed in the public domain by their creators (Creative Commons CC0)
  • Copyright registration is not required for protection but provides additional benefits, such as the ability to sue for infringement and the presumption of validity in court
  • In the United States, copyright registration is administered by the U.S. Copyright Office
  • To register a work, creators must submit an application, pay a fee, and provide copies of the work being registered
  • Registration is most effective when done within three months of publication or prior to an infringement of the work
  • In the United States, copyright protection generally lasts for the life of the author plus 70 years
  • For works made for hire or anonymous/pseudonymous works, the duration is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter
  • After the copyright term expires, the work enters the public domain and can be used freely without permission or compensation
  • The length of copyright protection varies by country, with most nations adhering to the Berne Convention's minimum standard of life plus 50 years

Fair use doctrine

  • Fair use is a legal doctrine that allows limited use of copyrighted material without permission from the rights holder under certain circumstances
  • The doctrine aims to balance the interests of copyright holders with the public's interest in using and building upon existing works
  • Fair use is determined on a case-by-case basis, considering the purpose and character of the use, nature of the copyrighted work, amount used, and effect on the market

Four factors of fair use

  1. Purpose and character of the use
    • Considers whether the use is commercial or non-profit educational
    • Favors transformative uses that add new meaning, expression, or purpose to the original work
  2. Nature of the copyrighted work
    • Distinguishes between factual and creative works, with greater protection afforded to creative works
    • Published works are more likely to be considered fair use than unpublished works
  3. Amount and substantiality of the portion used
    • Examines both the quantity and quality of the portion used in relation to the entire original work
    • Generally, using a smaller portion is more likely to be considered fair use
  4. Effect of the use upon the potential market
    • Assesses whether the use could serve as a substitute for the original work and harm its market value
    • Uses that do not compete with the original work are more likely to be considered fair use

Fair use examples

  • Quoting excerpts from a book in a review or (purpose: , amount: small)
  • Using clips from a movie in a video essay analyzing its themes (purpose: education, transformative)
  • Parodying a popular song to comment on social issues (purpose: parody, transformative)
  • Incorporating a photograph into a collage artwork (purpose: artistic expression, transformative)

Transformative uses

  • A use is considered transformative when it adds new meaning, expression, or purpose to the original work
  • Transformative uses are more likely to be considered fair use because they do not merely substitute for the original work but instead build upon it
  • Examples of transformative uses include parody, criticism, commentary, and remixing elements of a work into a new creation
  • The more transformative a use is, the less significant other factors (such as commerciality) may be in the fair use analysis

Parody and criticism

  • Parody and criticism are often considered fair use because they provide commentary on the original work and serve a different purpose
  • Parody imitates the style or elements of a work to comment on or mock the original, often for humorous or satirical effect (Weird Al Yankovic songs)
  • Criticism analyzes and evaluates a work, providing insights and opinions that contribute to public discourse and understanding (book reviews, film critiques)
  • To qualify as fair use, parodies and criticisms must use only the amount necessary to achieve their purpose and not serve as a substitute for the original work

Music licensing

  • Music licensing is the process of obtaining permission to use copyrighted music in various contexts, such as in films, television shows, advertisements, and live performances
  • Licensing ensures that music creators are compensated for the use of their works and helps to prevent unauthorized use and copyright infringement
  • There are several types of music licenses, each granting specific rights and requiring different permissions and fees

Performing rights organizations

  • Performing rights organizations (PROs) are entities that represent songwriters, composers, and music in the licensing of public performances of their
  • The three main PROs in the United States are ASCAP, BMI, and SESAC
  • PROs collect royalties on behalf of their members when their music is performed publicly, such as on radio, television, and in live venues
  • Businesses that use music publicly, such as restaurants and stores, must obtain a blanket license from PROs to legally play copyrighted music

Sync and master licenses

  • A synchronization (sync) license grants permission to synchronize a musical composition with visual media, such as in films, television shows, and advertisements
  • Sync licenses are typically obtained from the music publisher or songwriter and cover the use of the underlying composition
  • A master license grants permission to use a specific recording of a musical work and is obtained from the record label or artist who owns the rights to the recording
  • To legally use a copyrighted song in a video or other audiovisual work, both a sync license and a master license must be obtained

Creative Commons licenses

  • Creative Commons (CC) is a nonprofit organization that provides free, easy-to-use copyright licenses for creators to share their works with the public
  • CC licenses allow creators to specify which rights they reserve and which they waive, enabling others to use their works under certain conditions without needing to obtain individual permissions
  • The six main CC licenses range from the most permissive (CC BY, allowing any use with attribution) to the most restrictive (CC BY-NC-ND, allowing only non-commercial sharing with attribution and no derivatives)
  • CC-licensed music can be a useful resource for content creators seeking to use music legally without the need for traditional licensing

Royalty-free music

  • -free music is music that can be used without the need to pay ongoing royalties for each use, typically obtained through a one-time license fee
  • Royalty-free music is not necessarily free of cost or free from copyright; it simply means that the user does not have to pay per-use royalties after the initial license purchase
  • Royalty-free music libraries, such as Epidemic Sound and PremiumBeat, offer a wide variety of tracks that can be licensed for use in videos, podcasts, and other projects
  • While royalty-free music can be a convenient option, it is important to carefully review the license terms to ensure compliance with any usage restrictions or attribution requirements

Intellectual property in news

  • Intellectual property considerations play a significant role in news gathering, reporting, and dissemination
  • Journalists and news organizations must navigate copyright, trademark, and other intellectual property issues to ensure legal and ethical use of content
  • Understanding the boundaries of copyright protection and the applicability of fair use is essential for journalists to avoid infringement and to protect their own original work

Facts vs expression

  • Copyright law distinguishes between facts and the expression of those facts, with only the latter being protected by copyright
  • Facts, data, and ideas are not copyrightable, as they are considered part of the public domain and free for anyone to use
  • However, the specific way in which facts are expressed, such as in a news article or photograph, can be protected by copyright
  • Journalists are free to report on facts and ideas but must be cautious when using others' expressive content without permission

Interviews and permissions

  • Interviews are a common source of information for journalists, but the copyright implications can vary depending on the context
  • The interviewee generally holds the copyright to their spoken words, while the journalist holds the copyright to the final article or broadcast incorporating those words
  • It is best practice to obtain explicit permission from interviewees to use their quotes and to clarify any restrictions on use, such as for sensitive or off-the-record information
  • When using excerpts from other copyrighted works in an interview context, journalists should consider whether fair use applies or if permission is needed

Use of press releases

  • Press releases are often used by journalists as a source of information or quotes, but the copyright status of these materials can be complex
  • In general, press releases are intended for public distribution and use by the media, implying permission for journalists to quote from them
  • However, it is still important to properly attribute the source of the information and to be mindful of any explicit restrictions or permissions noted in the release
  • If a press release includes third-party content, such as images or data, journalists should verify that they have the necessary rights to use that content

Crediting sources

  • Properly crediting sources is not only an ethical best practice in journalism but also helps to avoid potential copyright issues
  • When using quotes, facts, or other information from external sources, journalists should clearly attribute the material to its original source
  • Attribution can help to demonstrate good faith and fair use, as it acknowledges the original creator and provides context for the use
  • Failure to properly credit sources can lead to accusations of or copyright infringement, damaging the credibility of the journalist and the news organization

Digital rights management

  • Digital rights management (DRM) refers to technologies and practices used to control access to and use of copyrighted digital content
  • DRM aims to prevent unauthorized copying, distribution, and modification of digital works, such as software, music, movies, and ebooks
  • While DRM can help rights holders protect their intellectual property, it has also been criticized for restricting legitimate uses and hindering innovation

DRM technologies

  • DRM technologies employ various methods to control access and use of digital content, such as encryption, watermarking, and user authentication
  • Encryption scrambles the content so that it can only be accessed with a valid decryption key, often tied to a specific device or user account (Adobe Digital Editions)
  • Watermarking embeds identifying information into the content itself, allowing for tracking and identification of unauthorized copies (Cinavia audio watermarking)
  • User authentication requires users to verify their identity and permissions before accessing the content, often through login credentials or hardware-based keys (iLok USB dongle)

Circumvention of DRM

  • Circumvention of DRM refers to the act of bypassing or disabling the technological measures used to control access to copyrighted content
  • In many countries, including the United States, the circumvention of DRM is prohibited by law, with exceptions for certain limited purposes such as security research and accessibility
  • However, some argue that DRM circumvention can be necessary for legitimate uses, such as fair use, archival preservation, and interoperability
  • The legality and ethics of DRM circumvention remain a topic of ongoing debate in the context of balancing intellectual property rights with user freedoms

DMCA takedown notices

  • The (DMCA) is a U.S. law that provides a framework for addressing online copyright infringement, including provisions for takedown notices
  • Under the DMCA, copyright holders can send takedown notices to online service providers, requesting that they remove infringing content from their platforms
  • To be valid, a DMCA takedown notice must include certain information, such as identification of the copyrighted work and the infringing material, and a statement of good faith belief
  • Online service providers that comply with DMCA takedown procedures are generally shielded from liability for the infringing actions of their users

Online piracy concerns

  • Online piracy, or the unauthorized distribution of copyrighted content over the internet, is a major concern for rights holders and industries reliant on intellectual property
  • Piracy can take many forms, such as peer-to-peer file sharing, streaming of unlicensed content, and distribution of counterfeit physical media
  • The impact of online piracy on creators and industries is a subject of much debate, with some arguing that it leads to lost sales and revenue, while others contend that it can have promotional benefits
  • Efforts to combat online piracy include legal action against infringers, public education campaigns, and the development of alternative distribution models that provide affordable and convenient access to content
  • International copyright law refers to the various treaties, agreements, and national laws that govern copyright protection across borders
  • In an increasingly globalized and digital world, understanding international copyright issues is crucial for creators, users, and businesses operating in multiple jurisdictions
  • While there is no single, unified international copyright law, several key treaties and principles shape the global copyright landscape

Berne Convention basics

  • The Berne Convention for the Protection of Literary and Artistic Works is the oldest and most widely adopted international copyright treaty, with 179 member countries as of 2021
  • The Berne Convention establishes minimum standards for copyright protection, including the principle of automatic protection without the need for registration or notice
  • Under the Berne Convention, member countries must provide copyright protection for a minimum duration of the life of the author plus 50 years
  • The treaty also requires member countries to treat foreign works the same as domestic works for the purposes of copyright protection (principle of national treatment)
  • While the Berne Convention sets a minimum copyright term of life plus 50 years, many countries have adopted longer terms in their national laws
  • The European Union and the United States, for example, have a general copyright term of life plus 70 years, while Mexico has a term of life plus 100 years
  • Some countries, such as Canada and New Zealand, have different terms for different types of works, such as a shorter term for sound recordings
  • Differences in copyright duration across countries can create challenges for determining the public domain status of a work in a given jurisdiction

Differences in fair use

  • Fair use is a doctrine in U.S. copyright law that allows for limited use of copyrighted material without permission, based on a four-factor analysis
  • While some other countries have similar provisions, such as fair dealing in Canada and the UK, the specific criteria and scope of these exceptions vary
  • Many civil law countries, such as France and Germany, have more limited and specific exceptions to copyright, rather than an open-ended fair use doctrine
  • These differences in approach to fair use and exceptions can create uncertainty for users and businesses operating across multiple jurisdictions

Enforcing rights globally

  • Enforcing copyright rights in a global context can be challenging due to differences in national laws, jurisdictional issues, and practical barriers
  • International treaties, such as the TRIPS Agreement, provide a framework for cross-border enforcement of intellectual property rights, but implementation and effectiveness vary
  • Copyright holders may need to pursue legal action in multiple jurisdictions to address infringement, which can be costly and time-consuming
  • Alternative dispute resolution mechanisms, such as the WIPO Arbitration and Mediation Center, can provide more efficient and cost-effective options for resolving international copyright disputes

Ethical considerations

  • Copyright law and ethics are closely intertwined, as they both deal with questions of ownership, attribution, and fair use of creative works
  • While copyright law provides a legal framework for protecting and enforcing rights, ethical considerations go beyond strict legal compliance to address issues of morality, fairness, and social responsibility
  • Navigating the intersection of copyright and ethics requires careful consideration of the interests of creators, users, and the broader public
  • Plagiarism and copyright infringement are related but distinct concepts, with plagiarism being an ethical issue and copyright infringement a legal one
  • Plagiarism involves passing off someone else's work or ideas as one's own, without proper attribution, regardless of whether the source material is protected by copyright
  • Copyright infringement occurs when someone uses a protected work without permission in a way that violates the exclusive rights of the copyright holder, even if the source is attributed
  • While not all instances of plagiarism are copyright infringement, and not all instances of infringement are plagiarism, the two often overlap in practice

Attribution best practices

  • Providing proper attribution is a key ethical principle in the use of others' creative works, even when such use is legally permitted under fair use or other exceptions
  • Best practices for attribution include clearly identifying the source of the material, providing context for the use, and giving credit in a manner appropriate to the medium and context
  • In academic and professional settings, specific citation styles and guidelines may dictate the format and content of attributions
  • Failing to provide proper attribution can lead to accusations of plagiarism, damage to one's reputation, and erosion of trust in the creative ecosystem

Respecting creator rights

  • Respecting the rights of creators is an important ethical consideration in the use of copyrighted works, even when such use is legally permissible
  • This may involve seeking permission for uses that go beyond fair use or other exceptions, even if not strictly required by law
  • It also means being mindful of the potential impact of one's use on the creator's ability to control and benefit from their work, such as in cases of commercial use or derivative works

Key Terms to Review (18)

Authors: Authors are individuals or entities that create original works, including literary, artistic, and intellectual pieces, which are protected under copyright law. This protection grants authors exclusive rights to their creations, allowing them to control how their work is used and distributed, thus encouraging creativity and innovation in various fields.
Campbell v. Acuff-Rose Music, Inc.: Campbell v. Acuff-Rose Music, Inc. is a landmark U.S. Supreme Court case decided in 1994 that addressed the concept of fair use in copyright law. The case involved the rap group 2 Live Crew, who created a parody of the song 'Oh, Pretty Woman' without permission from Acuff-Rose Music, the song's publisher. The Supreme Court ultimately ruled that their parody was a form of fair use, emphasizing that transformative uses can qualify for fair use protection even when they are commercial in nature.
Commentary: Commentary refers to a form of expression that provides personal opinions, interpretations, or analysis on a specific topic, event, or piece of media. It serves as a means for individuals to convey their viewpoints, often aiming to provoke thought or discussion among audiences. In relation to copyright and fair use, commentary can play a significant role in determining whether certain uses of copyrighted materials are permissible under fair use provisions, particularly when the commentary adds value or insight rather than simply reproducing the original work.
Copyright Act: The Copyright Act is a federal law that grants creators exclusive rights to their original works, protecting them from unauthorized use by others. This act plays a crucial role in the context of copyright and fair use, ensuring that authors, artists, and other creators can control how their work is used and distributed, while also establishing the boundaries for permissible uses by others under the concept of fair use.
Creative Commons Licenses: Creative Commons licenses are a set of standardized licenses that enable creators to share their work legally while retaining certain rights. These licenses provide a flexible way for authors, artists, and educators to specify how their creative works can be used by others, which helps balance copyright protection with the public's access to knowledge and culture.
Criticism: Criticism refers to the analysis, evaluation, and judgment of a work, concept, or practice. It often involves assessing the value, meaning, and implications of a subject, especially in the context of copyright and fair use, where the line between protection and freedom of expression can be nuanced and complex. This term is particularly relevant in discussions about how creative works are interpreted and the balance between protecting original content and allowing for transformative uses.
Derivative Work: A derivative work is a new creation that is based on or incorporates a pre-existing work, transforming or adapting it in some significant way. This can include adaptations, translations, or modifications that give the original work a new expression, meaning, or message. The concept is closely tied to copyright law and fair use, as the rights to create derivative works are typically owned by the original creator unless permission is granted otherwise.
Digital Millennium Copyright Act: The Digital Millennium Copyright Act (DMCA) is a U.S. copyright law enacted in 1998 that aims to protect copyrighted material in the digital age while also addressing the challenges posed by the internet. It establishes a framework for copyright protection, including provisions for safe harbor for online service providers and penalties for copyright infringement. The DMCA balances the interests of copyright owners with the public's right to access and share information in the digital landscape.
Feist Publications v. Rural Telephone Service: Feist Publications v. Rural Telephone Service was a landmark U.S. Supreme Court case decided in 1991 that established the principle that merely compiling facts does not warrant copyright protection. The case clarified the boundaries of copyright law, emphasizing that originality is required for copyright eligibility, even in factual compilations like telephone directories.
Licensing agreement: A licensing agreement is a legal contract where one party (the licensor) grants permission to another party (the licensee) to use, reproduce, or distribute a particular intellectual property, such as copyrights, trademarks, or patents. These agreements are crucial in defining the scope of use and ensuring that both parties understand their rights and obligations regarding the intellectual property. Licensing agreements help facilitate fair use and commercialization of creative works while protecting the original creator's rights.
Literary works: Literary works refer to creative expressions such as novels, poems, plays, and essays that are crafted with artistic intent. These works are protected under copyright law, ensuring that the original authors maintain control over their creations and can benefit from their use. The concept of literary works is closely tied to discussions around copyright and fair use, as these laws dictate how others can engage with or reproduce these creative expressions without infringing on the rights of the original creators.
Market impact: Market impact refers to the effect that a specific action, event, or change has on the overall market dynamics, including price fluctuations and trading volumes. This term is crucial when discussing how copyright laws and fair use policies influence the behavior of creators, distributors, and consumers in the market, ultimately affecting revenue streams and content availability.
Musical works: Musical works refer to the original compositions of music, which include melodies, harmonies, lyrics, and arrangements that are fixed in a tangible medium. These works are protected by copyright law, granting creators exclusive rights to use and distribute their music, and ensuring that they can control how their compositions are reproduced and performed. Understanding musical works is essential for grasping the complexities of copyright and fair use in the music industry.
Plagiarism: Plagiarism is the act of using someone else's work, ideas, or intellectual property without proper acknowledgment, presenting it as your own. This unethical practice undermines the integrity of academic and professional work and can lead to serious consequences, including legal issues and damage to reputation. Understanding plagiarism is crucial for respecting copyright and fair use principles in any form of communication.
Public Domain: Public domain refers to creative works that are not protected by copyright and are free for anyone to use without permission or payment. This includes works that have expired copyrights, those that were never eligible for copyright, or those intentionally released into the public domain by their creators. Works in the public domain can be used, shared, and built upon by anyone, which promotes creativity and access to knowledge.
Publishers: Publishers are individuals or companies that produce and distribute various forms of media content, including books, newspapers, magazines, and digital content. They play a crucial role in the creation, marketing, and dissemination of information, often holding copyright over the works they publish. This relationship between publishers and copyright is significant as it impacts the rights of authors and creators, as well as the accessibility of information for the public.
Royalty: Royalty refers to the payment made to creators and owners of intellectual property when their work is used or distributed. This includes music, literature, film, and other creative works, where the owner receives compensation for the use of their content, which is a key aspect of copyright law and fair use principles.
Transformative use: Transformative use refers to the legal concept in copyright law that allows for the use of copyrighted material in a way that adds new expression, meaning, or message to the original work. This concept plays a critical role in determining fair use, as it assesses whether the new work changes the original in a significant way, thereby justifying its usage without permission from the copyright holder.
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