Category: Copyright Education (page 1 of 5)

How to Find a Copyright Owner

Between fair use, the TEACH Act (for online education), and Section 108 (for libraries and other cultural heritage institutions), a sizable network of exceptions is built into United States copyright law.  In addition to the ability of users to rely on statutory exceptions for their use of copyrighted works, some copyright owners have already granted permission for certain uses of their works through the adoption of an open license, such as a Creative Commons licensing scheme.  These exceptions and licenses allow many people to use copyrighted materials, thereby informing and enriching their own works.  But what if your potential use of another’s copyrighted work is covered by neither an open license nor an exception?

You may need to contact the copyright holder for permission to use the work.  This entails two separate steps:  First, identifying the copyright holder; and second, writing a request for permission.  The second step may be the easier of the two, with template letters and drafting advice available from numerous sources.  The Copyright Resources Center has a page on our website dedicated to requesting permission:  go.osu.edu/permission.

However, identifying and locating a copyright holder can be a complex endeavor.  Because copyright is transferrable, the original author or creator of a work may not be the current copyright holder.  For example, an author or creator of a work may choose to transfer their copyright to another person or entity, such as a publisher, during their lifetime. If the creator held the copyright until they died, the copyright may have passed to an heir or beneficiary.  And in some situations, even if the copyright was not transferred, the creator of a work may not hold the copyright because the work is a work for hire.  In that instance, the business, University, or other entity that employed the creator of the work when the work was created may be the holder of the copyright.  This post will walk through some important questions to ask when trying to locate a copyright holder and provide some good ideas regarding who should be your first contact.   Continue reading

Public Domain Day 2017

Today on January 1st, we celebrate Public Domain Day—the day each year where works enter the public domain for many countries around the world following the expiration of their term of copyright protection.

Public domain works are works free of copyright restrictions; works capable of being freely reproduced, shared, and built upon by users. As we have discussed on this blog before, a robust public domain supports the underlying purpose of U.S. copyright law to promote the progress of knowledge and learning.[1]

But while many counties will see new works added to the public domain this year, there will be no published works entering the public domain in the United States. In fact, no published works will be added to the public domain in the United States until 2019.

Why the delay? The U.S. Constitution states that copyright protections may exist only for “limited times,” but our copyright law has been amended several times to extend the length of the term of protection. Under our first federal copyright statute, copyright protection lasted for an initial term of 14 years, renewable for another 14 years. The current term of protection for copyrighted works is the lifetime of the author plus an additional 70 years. As a result of this extension of copyright and Congress’s decision to apply the extension of copyright protection retroactively to existing works, works published in the United States from 1923 to 1977 will remain protected for 95 years after their date of publication. This means that works we would normally expect to enter the public domain today (i.e., published works whose author died in 1946) will not enter the public domain until much later.

For more information on Public Domain Day and works entering the public domain in other countries this year, visit:

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] For this reason, authors today may chose to dedicate their work to the public domain through means such as the Creative Commons Public Domain Dedicator (CC0) tool rather than wait for the term of copyright protection to expire.

How to Negotiate a Publication Agreement

Dealing with a publisher may be intimidating, but a little work at the beginning of the publishing journey can eliminate work later.  A publication agreement spells out what rights are being requested via transfer or license from the copyright holder to the publisher.  The rights granted to a publisher can impact your future rights in your work.  If you would like to distribute copies of your work or even reuse it as part of future research, instruction, or professional development, then you may need to negotiate with your publisher.  To get ready for those negotiations, read on!

 

#1 – Educate yourself

Knowing your rights as an author under U.S. copyright law can help you understand the strength of your position when negotiating your publication agreement.  The bundle of rights encompassed by the word “copyright” goes far beyond just making copies of a work and includes the rights to:  reproduce the work, prepare derivative works, distribute the work, publicly perform the work, and publicly display the work.  To get educated and know your rights, we recommend starting with the Copyright Basics and Author’s Rights pages of our website.  They will give you an overview of what copyright is and is not and provide links to additional information.

 

#2 – Know what you want

The second step is knowing what rights you would like to keep.  Many publishers prefer a complete transfer of copyright or an exclusive license.  This allows the publisher to use the work however they deem necessary for publication.  Do you want to share your work when teaching courses?  Do you want to retain the right to translate your work into other languages, or turn it into a movie?  A copyright transfer means that the author, now former copyright holder, may be contractually bound in how they may or may not reuse the work.  Additionally, they may not be able to use the work without a statutory exception or permission from the publisher. Think about how you might use your work in the future, and what rights you should keep to allow those activities.  Then, move on to the next step.

 

#3 – Read your contract

Read your publishing agreement.  While there are any number of variations on publication rights, there are some that publishers typically use.  The three examples below are prevalent among academic publishers.  They are: (i) a complete transfer of copyright to the publisher; (ii) a complete transfer of copyright to the publisher, with an immediate license granted to the author; and (iii) a license given to the publisher, with the author retaining copyright.

 

3A – Transfer of Copyright

This is the most restrictive publishing agreement: You give up your copyright entirely.  The American Medical Association (AMA) requests this type of transfer in a publishing agreement for their journals and newsletters.  The agreement transfers the copyright in a work, in its entirety, to the AMA using the following language:

I hereby transfer, assign, or otherwise convey all copyright ownership, including any and all rights incidental thereto, exclusively to the AMA….

After signing such an agreement, you would be very limited in what you could do with your work.  You would not be able to make copies of your work for teaching or give a reading from your work without permission from the publisher or a statutory copyright exemption.

 

3B – Transfer of Copyright, with License to Author

Some publication agreements transfer copyright in its entirety to the publisher and immediately grant the author limited license(s) to use the work in specific ways.  The American Library Association (ALA) uses this model in a Copyright Assignment Agreement.  After using language similar to that in 3A to obtain full copyright from the author, the ALA goes on to provide the author a limited license:

Publisher hereby grants Author a royalty-free, limited license for the following purposes, provided the Work is always identified as having first been published by Publisher:

  • The right to make and distribute copies of all or part of the Work for use in teaching; …
  • The right to make oral presentations of material from the Work; …

If the uses allowed by the publication agreement cover all the ways you foresee using your work, then this agreement may work for you.

 

3C – Publisher Receives a License, Author Retains Copyright

If the language in your publishing agreement isn’t asking for a complete copyright transfer, it is likely asking you to give the publisher a license.  The Journal of Machine Learning Research (JMLR) requests a license in order to publish accepted articles in the journal.  The pertinent language in their “Nonexclusive Publication Agreement” is below:

…we need from every author whose work is to appear in JMLR certain nonexclusive licenses…. You hereby give to MIT Press the right to be the first publisher of the article in print form…. You hereby give to the Sponsor the right to be the first publisher of the article in electronic form.

MIT Press is asking for a nonexclusive[1] license, which means that you can exercise your rights as copyright owner without asking for permission from JMLR.   Be prepared to inform any subsequent publishers about prior publications.

 

#4 – Negotiations

Based on the type of publication agreement you received, you may have to adjust your expectations of what can be negotiated.  A publisher requesting a copyright transfer is less likely to allow an author to keep copyright and grant the publisher a limited license.  When setting your expectations, it may be helpful to ask others who have worked with your publisher about their experiences.  This is particularly true if they tried, successfully or not, to negotiate their agreement. Some Universities have created resources to help authors negotiate their rights.  In particular, the Universities of the Big 10 Academic Alliance have created an Addendum that authors can use when negotiating with their publisher.  This addendum works to preserve rights that academic authors commonly wish to keep, all of which look towards removing restrictions from the flow of information and allowing a freer exchange of ideas.

 

#5 – Make all edits/changes in writing

Whenever copyright is transferred, it must be in writing and signed.  One small exception is that a nonexclusive license does not require a signature.  In addition, it is recommended that you keep records of your negotiations with the publisher.  Note the date you send your request for modification, how you send it (email, postal service, inter-office mail), when you get a response, and of course what the response is.  An email will fulfill the requirement for a writing, so be sure to always review your emails before you hit “send”.  If you orally negotiate a change in your publication agreement, get those changes in writing.  Take extensive notes, summarize your notes in an email, and send it to the publisher with a request that they confirm the information is correct.

 

Conclusion

The opportunity to negotiate is always available.  The publisher may not agree to all of your requests, but asking can ensure that you retain important rights in your work and save you from hassle down the road.  Knowing your rights, and which of those rights a publisher is requesting, can help assess a publication agreement and determine what changes, if any, you would like to make.  Taking copious notes, and always getting any changes to a publication agreement in writing, will make your negotiations enforceable and truly protect your ability to use your work.

If there is any confusion over what a publication agreement is requesting, check out Phrases to Look for in Publisher Copyright Agreement Forms.  For questions on your rights or your publication agreement, feel free to reach out to the Copyright Resources Center by posting a comment here on the blog, tweeting at us (@OSUCopyright), or sending us an email.

Have you negotiated a publication agreement?  Were you successful in getting the changes you requested?  Let us know what your experience was like by leaving us a comment!

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By Marley C. Nelson, Rights Management Specialist, and Sandra A. Enimil, Head of the Copyright Resources Center, The Ohio State University Libraries.

 

[1] A nonexclusive license is a contract that allows a copyright owner to grant another party the ability to exercise one of the bundle of rights contained in copyright, while retaining the ability to simultaneously exercise that right.  These licenses are at times given for a limited length of time.  An exclusive license grants another party the ability to exercise one or all of the rights contained in copyright, but does not allow the copyright owner to simultaneously exercise those rights.  An unlimited exclusive license has little, aside from its name, to distinguish it from a full transfer of copyright.

Debunking Top Copyright Myths – Part One

The first myth we’re debunking is one of the most common:  If it doesn’t have a copyright symbol (©), then there’s no copyright protection, right?

How did this particular misconception start?  To answer that, we’re going to have to take a trip in the copyright time machine, back to 1909 [1].  That was the year Congress made its second major update to the copyright law of the United States (the first was in 1831 [2], when Congress granted copyright protection to musical compositions and extended the original copyright term for a protected work from 14 years to 28 years).  Under the 1909 Act, cleverly entitled “Copyright Act of 1909”, there were a couple of hoops that creators had to jump through before their works were protected by copyright.

The first hoop that creators had to jump through was publication.  In 1909, publication was usually required before a work was protected by copyright [3].  So before a work could be protected by copyright, there had to be “copies… reproduced for sale or distribution”. [4]  The second hoop was that, in addition to a work being published, it also had to include an appropriate notice of copyright:

[T]he notice of copyright required by [the 1909 Copyright Act] shall consist either of the word “Copyright” or the abbreviation “Copr.”, accompanied by the name of the copyright [proprietor], and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication.  In the case, however, of copies of works specified in subsections (f) to (k), inclusive of section five of this Act, the notice may consist of the letter C [enclosed] within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear.” [5]

Basically, you had to have a conforming notice of copyright in or on your published work before it would receive copyright protection.  In 1909, the United States  expected certain formalities of rights holders in order to receive copyright protection.  This notion, that copyright protection wasn’t something you could just hand out to anyone, held on for decades and reappeared in the next major revision of U.S. copyright law.

Let’s jump back in the copyright time machine and fast forward to 1976, when the also creatively named “Copyright Act of 1976” was signed into law.  The 1976 Act superseded and replaced the 1909 Act, becoming the new statutory sheriff in the town of copyright.  When it was first enacted, the Copyright Act of 1976 also required that published works include a copyright notice before they could be granted copyright protection [6].  The language of the requirement had changed a bit, but it still required the word copyright, or an abbreviation like “Copr.” or “©”, the year of first publication, and the name of the copyright owner [7].  With some exceptions, works that did not contain a proper copyright notice were not protected works, and fell into the public domain.  Those requirements might have lasted into the distant future, if not for this pesky little thing called the rest of the world. The United States had to come into the fold of the rest of the world at some point.

Let’s jump back in the copyright time machine and head to March 1, 1989.  That was the date The Berne Convention Implementation Act of 1988 took effect [8] in the United States.  The Berne Convention for the Protection of Literary and Artistic works[9] (better known as the Berne Convention) is an international copyright agreement with 171 member parties (including the United States[10].  The Berne Convention first came into effect in Berne, Switzerland, in 1886.  Originally a treaty between eight nations (Spain, Great Britain, France, Haiti, Liberia, Switzerland, Tunisia, and Germany), 22 years later the number of signatories had almost doubled.  Today, nearly every country in the world is a member party of the Berne Convention (171 countries out of 206(ish) total [11]).  Despite the trending popularity of the Berne Convention, the United States refused for over 200 years to sign on to the agreement.  This was in large part because becoming a member party would require rather substantial changes to the copyright law of the United States.  In particular, it would require that copyright law in the United States “not be subject to any formality” [12].  In effect, the Berne Convention forbids the United States from requiring any formalities – such as registration with the Copyright Office or publication with notice – before granting a creator copyright protection for their work.

Once The Berne Convention Implementation Act of 1988 took effect, copyright protection in the United States became automatic.  Gone was the requirement that a copyright notice be affixed to a work.  Gone was any requirement that a work be registered with the Copyright Office.  Current copyright law in the United States provides that copyright protection attaches instantly and automatically to “original works of authorship fixed in any tangible medium of expression” [13].

What does this mean?  For one thing, if you’re still reading this it means you have incredible staying power when it comes to muddling through somewhat dry information about the history of copyright in the United States!

It also means that all types of materials, even if they have no copyright notices on them, are protected by United States copyright law.  That, in turn, means that your use of content without either permission from the creator or an appropriate exception to copyright protection would be copyright infringement.

At this point, I know what you’re thinking.  “Well if we don’t need to follow any formalities to be protected by copyright, then why do we have a Copyright Office at all?”

That may not be exactly what you were thinking, but just play along.

While copyright protection requires neither registration nor notice, there are some benefits to both.  If a copyright owner does want to sue someone for copyright infringement, they may not do so in federal court unless their copyright is registered.  And if a work does include a copyright notice, it prevents mischievous copyright infringers from claiming that their infringement was innocent, meaning that they didn’t know the work was copyrighted.

Speaking of which, we invite you to read the other post in our series – The Myth of the Innocent Infringer.

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Please leave a comment telling us about your experiences with this copyright myth!

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By Marley C. Nelson, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

 

[1] Copyright Act of 1909, 17 U.S.C. §1 (1909).  Accessible at http://www.copyright.gov/history/1909act.pdf.

[2] Copyright Act of 1831, 17 U.S.C. §1 (1831).  Accessible at http://www.copyrighthistory.org/cam/tools/request/showRepresentation?id=representation_us_1831.

[3] Copyright Act of 1909, 17 U.S.C. §1 (1909).

[4] Copyright Act of 1909, 17 U.S.C. §62 (1909).

[5] Copyright Act of 1909, 17 U.S.C. §18 (1909).

[6] Copyright Act of 1976, 17 U.S.C. §401 (1976).

[7] Copyright Act of 1976, 17 U.S.C. §§401-406 (1976).

[8] The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853.  Accessible at http://uscode.house.gov/statutes/pl/100/568.pdf.

[9] The Berne Convention for the Protection of Literary and Artistic Works, opened for signature 9 September 1886, 1161 UNTS 30 (entered into force 5 December 1887).  Accessible at http://www.wipo.int/treaties/en/text.jsp?file_id=283698.

[10] See Copyright Office Circular 38a. (38A.0416), page 8.  Accessible at http://www.copyright.gov/circs/circ38a.pdf.

[11] See https://en.wikipedia.org/wiki/List_of_sovereign_states, or https://www.cia.gov/library/publications/the-world-factbook/index.html.

[12] Article 5(1) of the Berne Convention. Accessible at http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P109_16834.

[13] 17 U.S.C. §102(a).

Copyright in Comedy

Comedian Conan O’Brien made news last summer when he found himself the subject of a lawsuit alleging copyright infringement for the use of four jokes in his opening monologues.[1] The jokes were previously published on the personal blog and Twitter account of comedic writer Robert Kasberg. While most accusations of joke theft do not result in the legal action faced by Conan O’Brien, accusations themselves are not atypical in the world of comedy. D.L. Hughley, George Lopez, Robin Williams, Carlos Mencia, Milton Berle, Chris Rock, Dane Cook, Denis Leary, and Amy Schumer are just a handful of comedians who have been the subject of such accusations.

If these accusations are founded in instances of actual unauthorized reuse of material, what legal protections or avenues for recourse do comedians have to protect their comedic works? In this blog post we will look at what rights and challenges comedians face in protecting their works under U.S. copyright law.

 

Copyright Protection for Jokes

Can you copyright a joke? Like many questions in copyright law, the answer is “it depends.” Under U.S. Copyright Law, original works of authorship that are fixed in a tangible medium of expression are eligible for copyright protection. While many jokes and comedic routines may meet these requirements, there are a number of initial barriers to protection that authors may face.

Originality: Originality requires that a work be independently created and have a minimal degree of creativity.[2] Comedic works do not need to be novel to receive copyright protection, but the author must create the work without copying the original expression of another. When similar jokes are both based on a current event, for example, is it more likely that both comedians based their comedic material on a common news source, rather than the other’s original material. Works must also possess at least a spark of creativity. While the requisite level of creativity is low, copyright will not protect ideas (including narrative structure or general plotlines), concepts, or common themes.

In addition, there may be situations in which there are only a limited number of ways to express an idea. If this situation exists, the idea merges with the expression, and the expression becomes uncopyrightable (this is referred to as the merger doctrine in copyright law). Similarly, copyright will not protect standard expressions or stock characters or events that are ordinary to a particular subject matter (this is referred to as the scènes à faire doctrine in copyright law). The structure of a knock-knock joke, for example, cannot be copyrighted.

Fixation: Fixation requires a work to be permanent enough to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. The work must be embodied in a material object by or under the authority of the author. This may include written text (e.g., a book, script, or Tweet), a recorded podcast, DVD, or even a live broadcast.[3] Despite the many ways in which a work may be fixed, comedians may not satisfy the fixation requirement in cases of unrecorded improvisation or live routines. Comedians may also face issues as they adapt and modify their routines over time or if their routine changes based on an unpredictable element, such as audience interaction.

 

Increasing Reliance on Social Norms

Given these initial barriers, some jokes may not qualify for copyright protection or the copyright protection received may be fairly thin. This reality aligns with the findings of a major study conducted by Dotan Oliar and Christopher Jon Sprigman that analyzed how stand-up comedians protect their jokes.[4] Following a series of interviews with comedians, Oliar & Sprigman found that most comedians are not relying on the formal legal protections of copyright law to protect their works, and instead rely on a system of somewhat recently developed social norms. These social norms developed contemporaneously with a change in the nature of stand-up comedy—comedians are now investing more effort in the development of original textual material and investing less effort to the performance element of their routines.

Of the norms identified, the most prominent norm governing the behavior of stand-up comedians is the norm against appropriation, the violation of which is often detected by fellow comedians viewing peer performances.[5] While the initial step to enforcing this norm is negotiation (the author of the work will request for the appropriator to cease using the material), the norm may also be enforced through informal sanctions, including attacks on reputation and refusals to deal, both of which may result in limited work opportunities for the appropriator.[6]

A reputation as a joke thief can have a disastrous impact on a comedian’s career. Because the comedic community is relatively small, reputation and respect among peers is of great importance. Comedians retaliating against alleged joke theft may refuse to share the same bill as the accused and booking agents and club owners may refuse to engage with the alleged thief.  These refusals to deal directly hamper an individual’s ability to find work and build a fan base.

Additional findings from the study reveal private enforcement to be a more legitimate response to the violation of the norm than public enforcement, with comedians revealing themselves to be unreceptive to the appropriation of comedic ideas, even when such ideas would fall outside the scope of copyright protection.[7] Unlike copyright, the norm against appropriation has no term limit (at no point do jokes become free to use as works in the public domain may be freely used) and the norm is less likely to be successfully enforced when the alleged joke thief has a reputation as a more popular comedian that the accuser.[8]

Additional norms include a norm against joint authorship (the comedian who comes up with the premise of the joke is the owner of the joke), a norm regarding priority (the comedian who can present evidence of first performance is given priority), a norm regarding works made for hire (parties who pay for a joke own it, even if conditions for a work made for hire are not met), and a norm regarding transfers (oral agreements are enough to divest copyright ownership).[9] For comedians, these social norms function to fill the gaps left by a cost-prohibitive legal system, while arguably providing more incentive to generate new comedic material.

 

Shifting Norms & the Future Role of Legal Enforcement

New technologies may allow comedians to more clearly establish public timelines, evidence of independent creation of jokes, and fixation of comedic material. These new technologies and services may also provide easier avenues for copyright enforcement through automated or streamlined takedown processes designed to protect the interests of copyright owners.  Freelance writer Olga Lexell, for example, was able to rely on such a process last July when she found her jokes reposted across Twitter. After a simple takedown request, Twitter removed the allegedly infringing content.[10]

The social norms detailed in Oliar & Sprigman’s study were published in December 2008; four years after the launch of Facebook, three years after the launch of YouTube, two years after the launch of Twitter, and two years prior to the launch of Instagram. As public recordation and enforcement becomes easier through the adoption of these social media platforms, it remains to be seen how, if it all, the cultural norms already relied on within the industry will shift.

It is possible that these new technologies and services will make formal legal enforcement more attractive to comedians. Or perhaps the same or new social norms, or the adoption and enforcement of these norms by a comedian’s social media followers or the general public, will continue to provide an effective alternative or supplementary form of enforcement for both allegations of copyright infringement and broader claims of plagiarism.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] Kaseberg v. Conaco, LLC et al., Case No. 15-CV-01637-JLS-DHB, U.S. District Court for the Southern District of California (2015).

[2] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991).

[3] The term fixed is defined to include “[a] work consisting of sounds, images, or both, that are being transmitted…simultaneously with its transmission.” 17 U.S.C. § 101.

[4] Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).

[5] Id. at 1812.

[6] Id. at 1815.

[7] Id. at 1821–22.

[8] Id. at 1824.

[9] Id. at 1825–31.

[10] Laura Sydell, Twitter Takes Down Unoriginal Jokes, But All of Yours Are Probably Safe, NPR (July 28, 2015), http://www.npr.org/sections/alltechconsidered/2015/07/28/426900829/twitter-takes-down-unoriginal-jokes-but-all-of-yours-are-probably-safe.

Google Launches YouTube Fair Use Protection Program

On November 19, 2015, Google announced  the launch of a new Fair Use Protection Program, promising to provide legal support for a select group of videos determined by Google to represent “some of the best examples of fair use.”[1] Videos selected for inclusion in the program will be kept live on YouTube in the U.S. and will be featured as strong examples of fair use in YouTube’s Copyright Center. In addition, should the selected videos be subject to a lawsuit for copyright infringement, Google will provide up to $1 million to cover legal fees.[2] In celebration of Fair Use Week 2016, we are looking more closely at the videos Google has selected for inclusion in its Fair Use Protection Program and discussing what impact the program may have for content creators on YouTube.

The Four Factors of Fair Use

Fair use is found in Section 107 of the U.S. Copyright Act and functions to limit the exclusive rights of a copyright owner. If the use of a work is a fair use, no permission is required from the copyright owner to use the work—the law states that a fair use of a copyrighted work is not an infringement of copyright. The law provides a number of different illustrative examples of potential fair uses, including use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Ultimately, however, it is up to a court to decide if a use is a fair use. Courts consider and weigh four factors in light of copyright’s purpose of promoting science and the arts, in order to make a fair use determination. These four factors include:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

You can learn more about these four factors by visiting go.osu.edu/fairuse.

Looking at the Selected Videos

Google selected an initial four videos for inclusion in the Fair Use Protection Program. In viewing the videos, what are some of the factors that may make these four videos stand out to Google as strong examples of fair use?

 

1. “Raging Citizens/The Simplest Game- Everything is Not Perfect,” a 5 minute video uploaded by Jim Sterling, includes complete trailers from two video games released by MOO Tech: Raging Citizens and The Simplest Game. Included with the two trailers is audio commentary, provided by Mr. Sterling, and a screen shot of negative comments made against MOO Tech on a user forum.

Factors favoring fair use:  Mr. Sterling’s own video served as a criticism of both MOO Tech video games, making his use of the works transformative. The previously published trailers were shown in their entirety in order to comment on the inappropriate inclusion of content, the ambiguous directions provided, and the overall ineffectiveness of the trailers to garner interest in the video games or support the asserted simplicity of the product. While this criticism may cause harm to the market for the video games, this is not the type of harm courts are concerned with under the fourth factor—courts focus on the harm caused by usurping demand rather than the harm caused by suppressing demand.

2. “Speedebunking: Mister UFO,” uploaded by UFOTheater, is a video that features a video clip originally uploaded to YouTube by Mister UFO. The clip in question is alleged live footage of UFO activity. The original clip from Mister UFO, approximately 18 seconds long, is shown multiple times and is accompanied by audio commentary from UFOTheater.

Factors favoring fair use: Like other videos posted on its YouTube channel, UFOTheater used the previously published Mister UFO clip in order to provide criticism of a work they identified as a UFO hoax. While a large majority of the original work was used, such an amount was necessary to support the criticism that the original video was a 100% computer generated shot and not actual live footage. In the new video, clips from the original video were paused and enlarged as UFOTheater directed the viewer’s attention to elements of the recording requiring further analysis. In addition, the name of the original video was provided in the original box, making it easier for others to locate the work.

3. “Questionable questions,” uploaded by NARAL Pro-Choice Ohio, features short clips of Ohio Channel’s footage of an Ohio House Finance Committee hearing. The clips include testimony from two sixth-grade girls speaking on the issue of funding for arts programs in their school district, as well as responses from select representatives. Clips from two representatives include comments and questions related to the “recruiting” of the girls for potential dating relationships with representatives’ grandsons.

Factors favoring fair use: The clips are used to comment on the appropriateness (or lack thereof) of questions posed by representatives to the girls testifying before the Committee. The clips were punctuated with still frames of text explaining what is happening in the hearing in order to direct the viewers’ attention to the content of the questions being asked. The video ends with a final question; “Can’t girls come before the Ohio General Assembly without facing questions on their marriage prospects?” The hearing video was previously published on the Ohio Channel website and is likely to be considered a more factual-based work. In addition, Ohio Channel’s entire hearing video totaled over five hours, approximately three minutes of which was included in the video uploaded to YouTube by NARAL Pro-Choice Ohio. A link to the original video was also provided.

4. “Rachel Dolezal White NAACP President Passing As Black,” uploaded by KevOnStage, features a number of pieces of media, including interview footage, copies of photographs, and screenshots of Instragram and Facebook posts. These works are featured alongside video and audio commentary from KevOnStage explaining recent allegations that Rachel Dolezal, a local NAACP chapter president, had lied about her race.

Factors favoring fair use: KevOnStage’s use of previously published copyrighted content was done for the purpose of news reporting, education, and commentary. The inclusion of all of the media was used to establish a pattern of false representation from Ms. Dolezal—she had continuously presented herself as black though it had been revealed by her own parents that she was born white. Use of entire photographs or written posts was needed in some instances to show the full context of the image or message. In other instances, only clips or cropped versions of works were presented, including 30 seconds of a 9 minute interview. KevOnStage also used the content as a basis for future discussion, prompting viewers to provide their own thoughts on the issue.

How Are Content Creators on YouTube Impacted?

YouTube is a platform that provides a way for content creators and users to share creative works that include music, images and videos. The Fair Use Protection Program serves as a useful educational tool for copyright owners whose content has been used by others. As Google acknowledges in their Copyright Center, sometimes takedown requests target videos that are more obvious examples of fair use. While copyright owners have a number of exclusive rights in their copyrighted works, the law carves out many authorized uses that do not require permission from the copyright owners. A fair use of a work is a use that is authorized under the law. And as held recently by the Ninth Circuit, copyright owners must consider fair use before sending a DMCA takedown notice.

Google’s actions are an acknowledgement and affirmation of the importance of fair use in U.S. copyright law and are motivated by the recognition that potential litigation and takedown processes can be confusing and consequently frightening experiences for creators faced with accusations of infringement.

With the large amount of videos uploaded to YouTube every day, Google cannot provide legal protection to all videos that are likely to qualify as a fair use. Google’s selection of a handful of videos, however, provides content users and creators more information and direction on their rights under U.S. law and the important role fair use plays in promoting the purpose of copyright. While fair use is ultimately decided by the court, users may refer to the videos as visual examples of works that encapsulate factors courts have regularly held to favor fair use.

Check out the many Fair Use Week 2016 events by visiting fairuseweek.org and join us on Twitter (@OSUCopyright) for a celebration of fair use throughout the week!

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Fred von Lohmann (2015, Nov. 19). A Step Toward Protecting Fair Use on YouTube. Retrieved from http://googlepublicpolicy.blogspot.com/2015/11/a-step-toward-protecting-fair-use-on.html.

[2] YouTube’s Fair Use Protection. Retrieved from https://youtube.com/yt/copyright/fair-use.html#yt-copyright-protection.

New iTunes U Course on Copyright

Copyright can be a difficult area of the law to navigate for instructors and can at times serve as a barrier for instructors who are reluctant to include content in their courses or teaching materials for fear of infringement.  To help provide guidance in this area, we have created Copyright in the Classroom, a self-paced iTunes U course that introduces basic copyright concepts all instructors should know. Topics include fundamental principles of U.S. copyright law, rights reserved for instructors as content creators, and permissible use of copyrighted content in different teaching contexts.

At the completion of the course, participants should be able to utilize the resources and information provided to:

  • Recall the requirements for copyright protection;
  • Recognize the exclusive rights provided to a copyright owner;
  • Identify the copyright owner of a work;
  • Assess which statutory exceptions may permit an intended use of a copyrighted work;
  • Locate public domain and openly licensed works and summarize the conditions for the use of such works;
  • Evaluate whether an intended use may constitute fair use and explain the ways in which a fair use argument could be strengthened; and
  • Outline the process for seeking permission to use a copyrighted work.

To view a course description and subscribe (you’ll need to download iTunes), visit https://itunes.apple.com/us/course/copyright-in-the-classroom/id1071533208.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Exploring Challenges and Opportunities Surrounding Our Collections of Recorded Student Musical Performances

The OSU Music and Dance Library has a sizable collection of recorded student musical performances encompassing individual students’ recitals and ensemble performances. The collection exists on a variety of media, some of which is deteriorating, is anticipated to deteriorate within the foreseeable future or is in an obsolete format . The Music and Dance Library is working with the Copyright Resources Center to explore options for preserving these artifacts of scholarly and creative activities at The Ohio State University and making them available for research and education.

As part of our initial information gathering, we collaborated with Alan Green and Sean Ferguson at the Music and Dance Library to craft an informal survey that would be sent their colleagues at other institutions on managing rights issues for similar collections. Based on the results of this survey, we found that other institutions are facing the same questions and conundrums and many survey participants indicated that they are also in the early or exploratory stages of developing or implementing plans for managing their collections of recorded student musical performances. While this appears to be an area of interest for many libraries, it will require further development and study within the profession before significant trends and community practices begin to emerge.  Though we are still gathering information, we have a few initial thoughts to share.

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Copyright in Campaigns

Election Day may still be over a year away but the 2016 Presidential campaign is already underway. As a battleground state, Ohio will experience a lot of political activity over the next 14 months.  Among the anticipated barrage of political ads, full calendar of rallies, and around-the-clock media coverage of campaign activity, we will see our friend: copyright. Copyright protects a wide variety of works—speeches, websites, marketing materials, etc.—so long as the work is original and fixed in a tangible format. This blog will highlight some of the many areas you will see copyright pop up during the campaign season.

Political Speeches:

Original political speeches written by candidates (or speechwriters) receive copyright protection, meaning the author of the speech may exercise control over the reproduction, adaptation, distribution, and performance or display of the speech. Two categories of works are not covered by copyright, however: works that fail to meet the fixation requirement and works created by federal employees within the scope of their employment. This means that speeches made at town hall meetings or political rallies may not be protected by copyright, unless those speeches were recorded or transcribed. It also means that works created by incumbent presidents or U.S. Senators or Representatives, if made within the scope of their employment, lack copyright protection and are free to use. For example, a speech made and recorded by Bernie Sanders within his role as Senator or a report written by Hillary Clinton as U.S. Secretary of State may be used without permission. A work created by a non-federal employee (e.g., Martin Luther King Jr.’s famous “I Had a Dream” speech), however, may still be protected by copyright.

When speeches are televised, the broadcasting entity televising the speech (e.g., CBS, Fox News, C-SPAN, or CNN) may hold a separate copyright in the broadcast recording. This is true even if the speech itself is made by a federal employee within the scope of their employment or is otherwise in the public domain.

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Copyright in the Libraries: Special Collections

Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all posts in the series here.

photo of Nena Couch

Nena Couch, Head of Special Collections

The Ohio State University Libraries are home to several special collections spanning a variety of subject areas. These collections contain many rare, primary source, and unique materials around a particular topic or area of study, and serve as a rich resource for education, research, and other projects. Special collections often contain objects beyond traditional publications, lending additional complexity to copyright questions regarding these materials. I met with Nena Couch, Head of Thompson Library Special Collections, and Beth Kattelman, Associate Professor and Curator of Theatre, to discuss the ways that copyright influences the Libraries’ special collections such as the Jerome Lawrence and Robert E. Lee Theatre Research Institute (TRI).

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