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Friday, March 06, 2009

Fair use

If you follow the comic book blogs, there's been a war of words over whether the demise of Scans Daily, which showed some comic book pages and commented on them, is a defeat for the comic book consumer or a victory for the comic book creator. (You can read about it lots of places - I'm picking the narrative by Gordon because his narrative is short, concise, not vitriolic - and because today is his birthday.)

All of the articles I've seen make use of the term "fair use". Ive copied the copyright page brochure on fair use, which I'm going to use in its entirety without concern, because it's a federal government website and stuff produced by the federal government, with rare exceptions, cannot be copyrighted. The Boston Globe famously published the Declaration of Independence on July 4 a few years back and slapped on a (c) Boston Globe; nice try, that.

But, first, here's the core paragraph:
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

"Not easily defined." That means that, short of taking a recent book, pulling off the cover, and re-covering it as one's own, it just ain't that easy.

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism
, which is what Scans Daily was claiming to do, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

In other words, if I use your copyrighted item, will I be profiting from it financially?
2. the nature of the copyrighted work;
Here's an example. If I find a photograph of a cover of a record album and use it, there's enough law out there that says that I'm PROBABLY safe. That is UNLESS that photo is "transformative" and captures the album cover in a new and artistic way.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole;
As librarians, we struggle with this all the time. A couple pages is OK; a whole chapter? Well, how many chapters ARE there?
4. the effect of the use upon the potential market for or value of the copyrighted work.

In other words, if I use your copyrighted item, will you be suffering from it financially? It seems that the courts have leaned heavily on this fourth point in determining whether it's "fair use".

The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
In my first year doing this blog, I did a series of pieces about a book by Sid Jacobson and Ernie Colon in which comic strips were done with a supposed African-American perspective. It was difficult to explain without showing specific examples. So I ended up actually showing about one panel in four. I felt a bit wasier about this because, as far as I can ascerttain, the book is out of print; certainly, I've never seen it on Amazon. Did I make the "right" decision concerning copyright? I dunno.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied;
Parody, the stock in trade of MAD magazine, e.g., is a huge one, not previously mentioned.
summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy;
As a matter of fact, our library HAS done this, rarely.
reproduction by a teacher or student of a small part of a work to illustrate a lesson;
Elsewhere in copyright law, there's the mention of "spontaneity". Let's say you're a teacher and you happen across an article in a magazine you thought would illustrate the lesson plan. You might make the case for making 20 copies of the article. Say, though, it's next semester; deciding to copy that same article would hardly be considered spontaneous.
reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

So a second book on the same historical event as the first is not in violation of copyright, unless the second book substantially lifts the WORDS used to describe the event.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
I was surprised to get in a discussion with a librarian about the AP copyright infringement case over Obama's image. She thought Shepard Fairey should have sought permission from the AP to use the picture. I, having worked with artists, tend to see the work as transformative, tend to side with Fairey. (She also thinks Fairey is arrogant, which is probably true, but irrelevant.) I suspect it would be less of an issue had Fairey not been making lots of money from the image.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of "fair use" would clearly apply to the situation.
Except that this document has already stated that when fair use would "clearly apply" does not exist.
The Copyright Office can neither determine if a certain use may be considered "fair" nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
Thus keeping attorneys employed for another generation.



Arthur (AmeriNZ) said...

I'm a big believer in Creative Commons, which allows rights-holders to specify whether their content can be used and, if so, how. When a license is given, it takes away both the guesswork (what can be used under what circumstances?) and also the need to obtain permission for the use. Wouldn't this sort of thing, of it was more generally used, be a good thing for libraries, educators and researchers?

Roger Owen Green said...

Sure. But most of the universe isn't covered by Creative Commons. In fact, MOST things are in the public domain, now that I think about it. Copyright law has gotten too broad in the US; the Founders, I dare say, would not be pleased.