Tag: Fair Use (page 1 of 4)

Fair Use Week 2025: Fair Use and Artificial Intelligence

This week is Fair Use Week, an annual celebration of the legal doctrine of fair use, which plays an essential role in teaching, education, and scholarship. This year, we are looking at the development of fair use in Generative Artificial Intelligence.

What is Fair Use?

The fair use doctrine allows for the use of copyrighted works in certain circumstances, which is determined using a four-factor test that considers the purpose of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect of the use on the market for the copyrighted work. Fair use is purposely vague to avoid unnecessarily limiting the use of copyrighted materials, but this vagueness could also result in uncertainty about whether a use is a fair use or an infringement until it is challenged in court. Nowhere is that vagueness and uncertainty more prevalent than in the current climate around fair use and artificial intelligence.

The Role of Fair Use in Generative Artificial Intelligence

As the growing number of lawsuits brought against AI companies indicates (see ChatGPT Is Eating the World), there is sentiment among many copyright owners that the inclusion of copyrighted works in datasets used to train AI tools without permission constitutes infringement, as do the outputs produced by AI tools that are copies of or significantly similar to the copyrighted works. AI companies rely, in part, on fair use to defend their use of copyrighted works. As is true with any fair use case, to determine the strength of a fair use argument, courts will balance the fair use factors to see if the use is favorable. Let’s explore how each factor might apply to AI.

Factor 1: The Purpose and Character of the Use

When considering the purpose of the use, which is the first fair use factor, the potential commerciality of the AI companies’ use gets weighed with their claim of transformative use. Any possibility of commercial benefit that AI companies stand to gain from using the copyrighted works will weigh against a finding of fair use. This has a significant impact on any AI tools that require a paid subscription to use. However, if companies can successfully argue that their use is transformative and adds value that is new and different than the original purpose of the copyrighted work, that will weigh in favor of fair use. The transformative use, according to AI companies, is that copyrighted works are being used as data to help AI models recognize patterns that will in turn help them generate new and unique content. A transformative use argument is also considered with the output generated by the AI tool. If the output is substantially similar to the original copyrighted work and both works share the same or highly similar purpose, the use may not be considered transformative.[1]

Factor Two: The Nature of the Copyrighted Work

The second fair use factor is the nature of the copyrighted work, which examines characteristics such as if the work is fact or fiction and is the work published or unpublished. The use of highly creative works like novels, song lyrics, etc.—which are often used to train AI tools—typically weighs against fair use.

Factor Three: The Amount and Substantiality of the Portion Used

The third factor evaluates the amount and substantiality of the copyrighted work used in relation to the copyrighted work as a whole. Typically, a larger portion of a copyrighted work used, or the use of the heart of a work, weighs against fair use. However, if the use of an entire work is appropriate to accomplish a favored use, such as a use that is transformative, it may not weigh against fair use. AI companies could argue that ingesting anything less than the entirety of copyrighted works would lessen the accuracy of their AI tools and hamper their ability to achieve their transformative use in training the tool.

Factor Four: Market Effect

Under the fourth fair use factor, courts consider if the use has an effect on the market for the copyrighted work. If the value of a copyrighted work is affected by it being used to train AI tools, that would weigh against fair use, as would any situation where the use served as a market substitute for the original copyrighted work. For example, some copyright owners take advantage of the potential to license their works for monetary gain. If an AI company chooses to avoid a readily available license and use the copyrighted work without permission, they would have a direct negative effect on the value of the work. Additionally, if a generated output is a copy of or substantially similar to the copyrighted work, it could act as a substitute for the copyrighted work, again directly affecting the market.

None of the fair use factors are determinative on their own—a use that is found to be transformative does not guarantee that a court will rule in favor of fair use. There may be other factors that weigh heavily in favor of the copyright owner that will cumulatively force a ruling against fair use. All of that to say, fair use cases greatly depend on the specific facts of each unique case, making it difficult to support any generalizations that you may hear about fair use and AI.

Current AI Lawsuits

As noted above, issues of copyright infringement and fair use are currently being litigated in court. Most recently, the district court in Delaware released a new summary judgement ruling in Thomson Reuters v. Ross Intelligence, rejecting a fair use defense in the use of copyrighted works for training of an AI legal search tool. In the case, Ross Intelligence trained their legal-research search engine using Bulk Memos, which consisted of compilations of legal questions and answers incorporating Westlaw headnotes (summaries of key points of law and case holdings).[2] In considering the fair use factors, the court held that Ross’s use was not transformative; Ross was using the headnotes as AI data to create a competing legal research tool. Additionally, the court found that Ross’s legal research tool served as a market substitute for Westlaw and also noted consideration for the effect of Ross’s use on a potential market for AI training data.

Two other major cases currently making their way through the courts that are addressing fair use in the training of AI tools is The New York Times Company v. Microsoft Corporation, involving use of New York Times articles in the training of OpenAI’s large language models, and Author’s Guild v. OpenAI, involving use of works from a class of professional fiction writers for training of OpenAI’s large language models.

We have written before about The New York Times v. Microsoft case; in their complaint, The New York Times have claimed that OpenAI has unlawfully used The Times’s works, including articles, in-depth investigations, opinion pieces, reviews, and how-to guides, to train the large language models that power CoPilot (previously Bing Chat) and ChatGPT. The New York Times states these AI tools “can generate output that recites Times content verbatim, closely summarizes it, and mimic its expressive style.”[3] According to Microsoft and OpenAI, large language models can be trained to recognize patterns in data, but reproduction of entire copyrighted works is not what the models and tools are designed to produce.[4]

OpenAI and Microsoft are also facing a lawsuit by the Author’s Guild. In their amended complaint filed on December 4, 2023, the Author’s Guild states that ChatGPT produces summaries of copyrighted text used in the training of the tool and the large language model underlying the tool, and that these summaries are themselves derivative works. The Author’s Guild also asserts that the plaintiff authors have suffered harm from the use of their copyrighted works, including lost opportunities to license their works and displacement of human-authored books.

Guidance from the United States Copyright Office

In 2023, the United States Copyright Office began examining the copyright law and policy issues raised by generative artificial intelligence in the scope of creating works and using copyrighted works in the training of AI. Their comprehensive initiative included public listening sessions, registration guidance for AI generated works, and publishing a Notice of Inquiry seeking public input on copyright issues raised by artificial intelligence. Their report, Copyright and Artificial Intelligence, analyzes copyright law and policy issues raised by artificial intelligence. The report will be issued in three parts.

Part 1 of the Copyright and Artificial Intelligence report was published on July 21, 2024 and addressed the topic of digital replicas. Part 2 of the report, published in January 2025, focuses on the copyrightability of outputs created using generative AI. The report states that existing principles of copyright law are flexible enough to apply to this new technology, as they have applied to technological innovations in the past. The report also concludes that the outputs of generative AI can be protected by copyright only where a human author has determined sufficient expressive elements. This can include situations where a human-authored work is perceptible in an AI output, or a human makes creative arrangements or modifications of the output, but not the mere provision of prompts. The report confirms that the use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability. It also finds that the case has not been made for changes to existing law to provide additional protection for AI-generated outputs.

Emerging Industry Solutions

As courts continue to work through these copyright issues and the U.S. Copyright Office completes their research and guidance, some have turned to licensing deals to facilitate AI training needs. Approaches have included opt-in models, such as the one offered by Cambridge University Press, that allow authors to opt-in to future licensing agreements with generative AI providers. Some opt-in models also offer payment to the author. The recent deal between Microsoft and HarperCollins, for example, allows authors to opt-in to the AI training program with a payment of $5,000 per title, with half of that amount going to the author. AI training datasets may also avoid copyright issues by limiting data to public domain works. In December of 2024, for example, Harvard announced the Institutional Data Initiative, with backing from Microsoft and OpenAI, that intends to share a dataset that includes 1 million public domain books.

What’s Next?

We await the US Copyright Office’s much anticipated third report on AI, which is set to explore “the legal implications of training AI models on copyrighted works” and hopefully provide practical guidance on the subject. Between that report and the many case rulings that may be forthcoming, hopefully the aforementioned vagueness and uncertainty will gradually transition to functional clarity on how to approach the intersection of fair use and artificial intelligence.

See the resources listed below for more information on fair use and artificial intelligence:

Congressional Research Service, Generative Artificial Intelligence and Copyright Law (September 29, 2023). Available at: https://crsreports.congress.gov/product/pdf/LSB/LSB10922
United States Copyright Office, Copyright and Artificial Intelligence, https://copyright.gov/ai/
Knibbs, Kate, Every AI Copyright Lawsuit in the US, Visualized, Wired, https://www.wired.com/story/ai-copyright-case-tracker/ (last updated December 19, 2024).

[1] In Andy Warhol Foundation for the Visual Arts, Inc. v Goldsmith, the U.S. Supreme Court found that the Andy Warhol Foundation’s use of Goldsmith’s photograph of Prince shared “substantially the same purpose” as the original, and their “use is of a commercial nature,” affirming the Second Circuit Court of Appeals decision that the Foundation’s use did not qualify as fair use.

[2] The court holds that while the judicial opinions from which the headnotes are derived are not copyrightable, the headnotes “can introduce creativity by distilling, synthesizing, or explaining part of an opinion, and thus be copyrightable.” Thompson Reuters Enterprise Centre GMBH and West Publishing Corp., v Ross Intelligence Inc., Case No. 1:20-cv-613-SB (D.D.C. 2025), 7, https://www.ded.uscourts.gov/sites/ded/files/opinions/20-613_5.pdf

[3] The New York Times Company v. Microsoft Corporation, et al., Case No. 1:23-cv-11195, United States District Court, Southern District of New York, https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf (Filed on Dec. 27, 2023).

[4] Allyn, Bobby. “’The New York Times’ Takes OpenAI to Court. ChatGPT’s Future Could Be on the Line.” NPR, 14 Jan. 2025, www.npr.org/2025/01/14/nx-s1-5258952/new-york-times-openai-microsoft.

By Allison Schultz (Instructional Designer & Library Liaison, Ohio State Online), Landen Stafford (Copyright Services Specialist, Copyright Services), and Maria Scheid (Head, Copyright Services)

An Exploration of Copyright Through Different Disciplines: A Final Stop, Copyright in Engineering and Instructional Design

August 26, 2024 / Maria Scheid / Comments Off

Hi everyone, my name is Tra’Vaysha Lanae’ Green, and I am a recent graduate of The Ohio State Moritz College of Law. During my time in law school, I focused a lot of my studies on copyright and intellectual property. I am now closing out on my tenure as Copyright Review Assistant for Copyright Services at OSU. I want to extend a special thanks to my supervisor, Maria Scheid, Head of Copyright Services. This would not have been possible without your encouragement and guidance. Also, thank you to everyone who took part in these conversations and everyone reading.

Business was such an exciting stop to our exploration of copyright through different disciplines. For this series installment, I will offer a two-for-one perspective on copyright in Instructional Design and Engineering. I decided to take this approach because, in my mind, there is a building and practical application of engineering and the academic innovative powerhouse that is also engineering. They may not differ for you reading this, but work with me.

I will start with the Instructional Design aspect because it was the most different of conversations I have had. I had the opportunity to speak with Instructional Design Specialists Austin Cush and Andrew Vogel with Engineering Technology Services here at Ohio State University. Instructional designers design instructional materials and courses; they support the efforts of faculty, administration, IT, and others to achieve better student learning and teach instructors to leverage pedagogy and andragogy effectively. They also assist instructors when they run into technical or instructional challenges.

Through this role, Austin Cush and Andrew Vogel have faced many copyright issues, and it is no surprise why. The reason is understandable, faculty want to design their classrooms to be the pinnacle of everything they need to teach students how they see fit, but that does not mean copyright is at the top of their minds when they envision their ideal classroom. Wanting to use photos, videos, and other copyrighted material is widespread. Luckily enough, Ohio State University does have licenses for specific materials. Ensure you are going through proper channels because you can get in trouble, and so can the university, if licenses aren’t followed.

Another big copyright concept to think about in this space is fair use. They informed me that fair use is a term they often hear when people want to use copyrighted material, and I hate to be the bearer of bad news, but fair use is never that easy. While use of materials for educational purposes is a favored use under the first factor of fair use (purpose and character), it is never the end of a fair use analysis.[1] It is a nuanced balancing test that must consider the purpose of your use, the nature of the copyrighted works being used, the amount of the work used, and the potential impact on markets for the work. Educational uses are not automatically fair use. So, to be safe when building your courses, consult with the Instructional Designers.

For the second stop on our exploration of Copyright in Engineering, we shift to the academic and innovative side of things. Through my conversation with Engineering Librarian Patricia Verdines, I learned a ton in this space.

First, there are so many different areas under the umbrella of engineering: computer, chemical, civil, industrial, biomedical, mechanical, electrical, and so many more. These are all very different spaces, but they all have similar copyright issues that students and faculty should be aware of.

Of course, a common theme through academia is ownership of your work. In Engineering, it is essential that you understand this. I learned that students and faculty work with many outside commercial corporations to develop and innovate, such as the Honda program. Those companies usually own the work you do through a contract you signed, so always make sure to read those and ask those questions. However, in no way is this a bad thing. Patricia Verdines informed me that it is a commonplace and a great way to balance the experience, freedom, and recognition you get as a creator in this collaborative and innovative field. These collaborations are similar to what you work on for the school, so always be aware of the Intellectual Property Policy at Ohio State as well.

As engineers, you all may want to work on your projects with your resources, which is fantastic, but you must still protect your work. Patricia Verdines, Ash Faulkner, and Florian Diekmann are representatives of the Patent and Trademark Resource Center (PTRC) at Ohio State University. Students, staff, faculty, and the general public alike can receive information and resources regarding patents, trademarks, copyrights, and trade secrets from the PTRC. So, if you’re working on creating your own code or design and are thinking of patents and trademarks, make sure you’re considering and protecting your copyright as well.

I have learned so much about the intersection of copyright in engineering and instructional design, and I haven’t even scratched the surface. If you have more questions, I highly recommend that you reach out to Austin Cush and Andrew Vogel for instructional design questions and Patricia Verdines for engineering questions. They would be a great resource to talk to. And for more copyright information, you may visit the Copyright Services website.

[1] For more information on fair use, visit the Copyright Services’ Fair Use page at https://library.osu.edu/copyright/fair-use.

An Exploration of Copyright Through Different Disciplines: Next Stop, Copyright in Business

August 5, 2024 / Maria Scheid / Comments Off

On our next stop of copyright through the disciplines, we stop at the home of entrepreneurial spirit and what keeps the world spinning; business!

First, in the last blog post, I explained what copyright can protect, but this time, I want to explain what copyright can’t protect. Copyright does not protect ideas, facts, concepts, systems, or methods of doing something.[1] This sounds like the makings and aspects of business. I did not go into this part of the expedition thinking there would be much to explore with copyright and business, but I was wrong. I got the chance to talk to Business Librarian Ash Faulkner and learned that many copyright issues pop up in business.

Regarding the academic side, I learned that faculty and students should be very aware of copyrighted materials when they give presentations and build classroom materials. The Creative Commons licenses are a big topic of interest for the Business school. Creative Commons licenses allows people to use the licensed work under the terms selected by the copyright owner, without having to negotiate for or pay a licensing fee. By default, all Creative Commons licenses require attribution to the author/creator. It is essential to know what can and can’t be used, of course, but it is also essential to know that if you can use something, you must attribute it correctly. Ash Faulkner says most questions about the copyright go towards attribution. Attribution comes in many forms and through many different means and while attribution is not a requirement under copyright law, it is an issue of academic integrity and may also be a required term of a license or other contractual agreement. So if you’re considering going the business route in school, you may wish to become familiar with Creative Commons licenses, including the Creative Commons requirement for attribution.

Another way copyright shows up in the Business school, like in medicine, is through ownership of scholarship and teaching materials. As I discussed, the work you produce through your writing compositions, PowerPoints, proposals, and so much more, has copyright. It is important to remember that you may initially believe you have that ownership. Know that your ownership of copyright may be impacted under the OSU Intellectual Property Policy. For certain things, it may not be up to you to choose whether to sign over rights in the work if you want to be published, for example, but it is still important to know what rights exist.

Now, what about the logos? What about the brands? Isn’t that important to business? Absolutely, but brands and logos can fall into the area of trademarks. Copyright and trademarks are like siblings, but they are two distinctive things. Trademarks can protect words, phrases, symbols, designs, or combination of these things that identifies goods or services.[2]

As expected but confirmed by Ash Faulkner, trademarks are the bread and butter of the business school. Now, do not get more wrong. You can have a trademark and copyright in something at the same time. Take a design logo, for instance; you can have a trademark in the distinctiveness and brand identifier. You can also have a copyright in the design of the logo itself if it has a minimum degree of creativity. So when you’re flexing your entrepreneurial spirit, remember the copyright because it shows up.

I have learned so much about the intersection of copyright in business, and I haven’t even scratched the surface. If you have more questions, I highly recommend that you reach out to Ash Faulkner. Ash would be a great resource to talk to. And for more copyright information, visit the Copyright Services website.

I look forward to sharing what I learned in the next installment, where I will see how copyright intersects with engineering.

[1] What Does Copyright Protect, U.S. Copyright Office. Available at: https://www.copyright.gov/help/faq/faq-protect.html.

[2] “What is a trademark?,” United States Patent and Trademark Office, available at https://www.uspto.gov/trademarks/basics/what-trademark.

An Exploration of Copyright Through Different Disciplines: First Stop, Copyright in Health Sciences

July 15, 2024 / Maria Scheid / Comments Off

An Exploration of Copyright Through Different Disciplines

Copyright. What is that? No, actually, what is that? If you asked me, a law student, I would probably refer to Article 1 Section 8 of the U.S. Constitution and say Congress has the power “to promote the progress of science and use arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” While this may be what copyright is, I typically hear a different answer when I ask nonlaw students that question.

When conversing with my university peers, I found that the knowledge of copyright varies significantly depending on the college that student belongs to and their major. Unsurprisingly, students in the College of Arts and Sciences knew more about copyright and how it applies to their work—especially the art students. More often than not, the art, film, dance, music, English, and theatre majors knew the exclusive rights they were afforded in their work and, importantly, what copyright issues may arise in their industries. On the flip side, my medicine, business, engineering, public affairs, and agriculture peers appeared more unaware of copyright, how it applies to their work, or what copyright issues may arise in their industry.

That scares me. A person has a copyright in a work when fixed in a tangible medium and made with minimal creativity. If that sounds like a low bar, it is. Now, there is more to that as far as you can’t have copyright in facts, but you can have it in how you present those facts.[1] Nevertheless, you likely have copyright when you write an article, design a farm layout, create software, or record yourself giving a presentation on business plans.

Equipped with my love for copyright and my passion for education, I wanted to create an information blog series highlighting how copyright and copyright-adjacent issues arise for students in health, business, and engineering. I am not promising to spot every possible copyright issue– I genuinely would not be able to do that anyway. What I do hope for is that this at least exists so that if someone is searching about “copyright in X major,” they have somewhere to start.

This is a daunting task. To ensure I am hearing from actual professionals and scholars in this area with whom I need to familiarize myself, I have acquired the help of a group of phenomenal subject matter librarians to aid me in my mission. In this series, I will be looking at copyright issues that show up in Medicine and Health Sciences, Business, and Engineering.

Copyright in Health Sciences

For my first exploration, I picked the College of Medicine and other health sciences. For this one, I talked with Katherine Hoffman and Stephanie Schulte from the Health Sciences Library. Through conversation, I learned about some issues they see regarding copyright in their areas. The two significant areas of copyright they get questioned about are accessing and utilizing copyrighted work and questions about licensing and ownership of works.

Accessing and utilizing copyrighted workpieces is a universal copyright issue. In medicine and health sciences, making a copy of a work for handouts, excerpts of books, and more may be unauthorized. These unauthorized copies infringe on someone else’s copyright and could lead to trouble in your class or workplace if discovered. Stephanie Schulte let me know that the topic of fair use comes up a lot in the discussions of unauthorized access, and while that can be the case, fair use is a nuanced balancing test that must be done in every case, and it may not get you off the hook.[2] Library licensed resources and openly licensed materials may provide options for access,[3] but the case-by-case determination of fair use may still be an issue to be aware of.

Another significant copyright issue that arises is the issue of licensing, and I can understand why. Licensing is a doozy. Whether licensing to use someone else’s work or licensing your work, I learned some important things students of medicine and health science should be aware of. First, there should be a licensing agreement that is preferably in writing. You must know all of the terms of your agreement. Language matters. Is this license transferable or nontransferable? Is it perpetual or not? Exclusive or nonexclusive? Know what you are and are not allowed to do with someone else’s work, and know what you want or do not want someone to do with your work. Licensing can be a lucrative business for yourself, your university, or your place of employment, and licensing can go beyond copyright. You can also license patented works in the form of inventions and tools you may need, so make sure you know what you are signing up for. Ohio State has a detailed Intellectual Property Policy, and I encourage everyone to know it.[4]

The last issue that I want you to keep in mind is ownership. Katherine Hoffman told me that students do not always know what ownership rights they have or do not have in their works. Remember that copyright, authorship, and ownership are not mutually exclusive. You can create a work and not have ownership or copyrights in that work. This happens when you sign away your ownership rights through a contract or license or, in some cases, under the scope of your employment. Again, know the terms of all agreements you take part in. Katherine and Stephanie helped me understand that signing away your rights is standard in the medical and health science professions, especially when publishing or receiving certain credits. So, make sure you know that. It would be unfortunate if you believe you had copyright in the work you created and try to use it in the future only to find out that you signed away those rights and are infringing on that right holder’s copyright.

I have learned so much about the intersection of copyright in medicine and the Health Sciences, and I haven’t even scratched the surface. If you have more questions, I highly recommend that you reach out to Stephanie Schulte and Katherine Hoffman. They would be a great resource to talk to. For more copyright information, visit the Copyright Services website.

I look forward to sharing what I learned in the next installment, where I will see how copyright intersects with business.

[1] What Does Copyright Protect, U.S. Copyright Office. Available at: https://www.copyright.gov/help/faq/faq-protect.html.

[2] The Fair Use Checklist from The Ohio State University Health Sciences Library can be used to work through a fair use analysis. The checklist is available at http://go.osu.edu/fairusechecklist. Adapted from “The Fair Use Checklist ,” Kenneth D. Crews and Dwayne K. Buttler and from “Thinking Through Fair Use ,” the University of Minnesota.

[3] Find Research and Education support from the Health Sciences Library at https://hsl.osu.edu/dept/research-education.

[4] The Ohio State University Intellectual Property Policy (Issued 05/03/1985, Revised 04/22/2024), available at https://policies.osu.edu/assets/policies/IP-Policy.pdf.

Popular Adaptations of Public Domain Works

January 1, 2023 / Maria Scheid / Comments Off

Note: Today is Public Domain Day; the day that we celebrate new works that have entered the public domain. This year, we welcome works first registered or published in the United States in 1927. Works published during that time, that met all required formalities, enjoyed a maximum term of copyright protection of 95 years. With copyright term running to the end of the calendar year, works first published in 1927 officially enter the public domain in the U.S. on January 1, 2023.

Because public domain works are free of copyright, they may be freely copied, distributed, performed, displayed, and adapted. This blog post, by Heidi Bowles, discusses popular adaptation of public domain works.

Copyright in Derivative Works

Copyright provides authors with a bundle of exclusive rights in their creative works, one of which is to create—or authorize others to create—adaptations of their work. When a work enters the public domain, it becomes free for creators to adapt without worrying about seeking permission, paying royalties, or meeting an exception under copyright law. The lack of copyright restrictions makes it easier for authors to use public domain works for their adaptations. It is important to note that copyright terms can vary from country to country, so materials that are in the public domain in one country may still be protected by copyright in another.

Derivative works, in terms of copyright, are any works that are based on preexisting material.[1] When an author creates a derivative work, they only own the copyright in their new creative expressions (assuming that they used the work lawfully—any unlawful use of copyrighted material is not protected by copyright). Authors of derivative works do not have any copyright in the underlying work or in the elements of their new work that they took from it.[2] For a list of common types of derivative works, see the U.S. Copyright Office’s Circular on Derivative Works and Compilations.

Take, for example, Kenneth Branagh’s delightful and faithful 1993 movie adaptation of William Shakespeare’s play Much Ado About Nothing. This film used Shakespeare’s original dialogue and setting, which is in the public domain. No adaptation can create a new copyright in the original work. There is, however, a new copyright in the typesetting of the script and recording of the performed dialogue, which could make distributing a copy of the script or film a copyright infringement. However, because the elements taken from the original work remain free from copyright, anyone is free to transcribe Shakespeare’s original dialogue from the movie and distribute it without worrying about copyright.

Less faithful works have more independent and copyrightable elements, like Disney’s 1994 animated movie The Lion King, adapted from Shakespeare’s play Hamlet. In a loose adaptation like this, it is more complicated to determine which elements are public domain and which belong to Disney, but essentially, the copyrightable elements taken directly from Hamlet remain public domain, while the new original elements added by Disney are protected by copyright.

Copyright does not protect ideas or concepts, only their tangible, fixed expression. It can be helpful to consider which elements of a story could be copyrightable:[3]

Not copyrightable:

Scènes à faire (elements that are customary or obligatory for a genre)
General themes
Overall plot
Names, titles, slogans, short phrases, and catch phrases

Copyrightable:

The specific expression of scènes à faire, an idea, theme, or overall plot
Characters
Dialogue
A recording of the performance

Therefore, Disney does not have an exclusive right in Hamlet retellings with an animated animal cast, but they do have an exclusive right in the particular way that they did it.

The iconic scene where Scar kills Mufasa is a good example to look at. Disney does not have a copyright in the idea of the king being killed by his brother so the brother can take his place, which was taken from Hamlet (neither would Shakespeare, for the record, if there had been copyright laws in 1600—fratricide is a common and intangible idea and therefore not copyrightable). They also would not likely have a copyright to Scar’s final words to his brother, “Long live the king,” even if they were original to them, because as a short phrase it is not likely substantial enough to be copyrightable. They do, however, have a copyright in other specific elements that they used to express this plot point—Scar holding Mufasa up by his claws, sneering, and dramatically letting go so that Mufasa falls off the cliff into a stampede blow. This specific and original expression of fratricide is what is copyrightable, not its use in the story.

Fair Use

Public domain materials are not the only available option for creating derivative works without the rightsholder’s permission. There are exceptions in the law that allow copyrighted works to be transformed without paying royalties or asking permission from the copyright owner.

So, while there are certainly many derivative works that are considered fair use, the lack of certainty with the fair use doctrine could mean that some creators would prefer the option of using public domain materials when creating derivative works.

Other Examples Based on Public Domain Works

DISCLAIMER: this list is nowhere near comprehensive and is heavily biased in favor of my personal tastes

Shakespeare’s plays have been frequently adapted. A musical adaptation of one of his best-known plays, Romeo and Juliet, gave us one of the most recognizable love themes in modern American culture (Tchaikovsky’s “Romeo and Juliet Fantasy Overture” TH. 42, which itself is in the public domain and used in many movies and TV shows). Some other notable adaptations of Romeo and Juliet include:

West Side Story (1957, 1961, and 2021)
Gnomeo and Juliet (2011)
The Lion King II: Simba’s Pride (1998)

Other popular movies adapted from Shakespeare’s plays include 10 Things I Hate About You (1999; Taming of the Shrew), She’s the Man (2006; Twelfth Night), and Ophelia (2018; Hamlet).

Jane Austen’s classic novel, Pride and Prejudice, is another frequently adapted story. Some recognizable works adapted from Pride and Prejudice include:

The Lizzie Bennet Diaries (2012)
Fire Island (2022)
Pride and Prejudice and Zombies (2016)
Bride and Prejudice (2004)
Bridget Jones’s Diary (2001).

Other Notable Movies and TV Shows:

Clueless (1995; Jane Austen’s Emma)
Monty Python and the Holy Grail (1975; legend of King Arthur)
O Brother, Where Art Thou? (2000; Homer’s The Odyssey)
Anne With an E (2017-2019; Lucy Maud Montgomery’s Anne of Green Gables)
Treasure Planet (2002; Robert Louis Stevenson’s Treasure Island)
Shrek the Third (2007; legend of King Arthur)

For more information on when a work becomes public domain, see Copyright Term and the Public Domain from Cornell Libraries. For a discussion of what is fair game and what is infringement in similar stories, see Protecting Your Stories by Mark Litwak.

Have any questions? Contact Copyright Services at libcopyright@osu.edu.

This post is authored by Heidi Bowles, current student at the UC Davis School of Law and former research assistant at Ohio State University Libraries’ Copyright Services.

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[1] “Derivative work” is defined in 17 U.S.C. § 101 as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’”

[2] 17 U.S.C. § 103

[3] For more information on the scope of copyright, see the Copyright Office’s Circular on Works Not Protected by Copyright.

Back to the Basics with Copyright Law

August 3, 2018 / Maria Scheid / Comments Off

Today is the 9^th anniversary of the Copyright Corner blog, with the first post (Why Copyright Education?) published back in August of 2009. Since then, we’ve had posts covering a wide-range of issues; from copyright protection for patterns and DMCA exemptions to copyright issues faced by units across OSU Libraries and tips on finding a copyright owner. For this post, we are going back to the basics and looking at some of the fundamentals of copyright law in the United States.

Why do we have copyright?

There are a number of theories on the purpose of copyright. Countries may have laws that encompass one or more of these theories.

One common theory for the purpose of copyright is utilitarian. Under this theory, we provide authors a copyright in the works they create as an incentive to create and disseminate new works. The law is organized to promote the collective welfare of society, but recognizes that unless creators can recoup the costs involved in the creation and dissemination of their works, they won’t produce the works. Copyright gives to authors and creators exclusive rights in the works they create, which in turn allows them to suppress competition for a limited time.

Much of U.S. copyright law seems to align with this theory, with Article I, Section 8, Clause 8 of the U.S. Constitution granting Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”

Another theory for the purpose of copyright is the author’s rights theory. Under this theory, the primary purpose of copyright is to recognize and protect the emotional bond between artists and their creations, acknowledging creative works as manifestations and extensions of their author’s personality. Countries whose laws are influenced by this theory may provide moral rights for authors and creators that exist separately from economic rights.

What exactly is copyright and how do you get it?

Copyright is a legal right that allows creators and authors the ability to control certain uses of their works. The owner of a copyright has a number of exclusive rights that are provided under the law (these rights are discussed below).

In the U.S., copyright protects original works of authorship that are fixed in a tangible medium of expression and copyright exists at the moment of fixation. In other words, copyright protection is automatic.

Including a copyright notice (e.g., © 2018 The Ohio State University) is optional for works created today but there can be some advantages to including a notice on your copyrighted work. And registration with the U.S. Copyright Office? That’s also an optional step that provides some important benefits to copyright holders.

Articles of Interest: July-December 2017

January 19, 2018 / Maria Scheid / Comments Off

This post highlights articles published in the second half of 2017 with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided when available; [OSU full-text] links will connect authenticated users through The Ohio State University Libraries, while [OA full-text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation in the comments!

Copyright

Bailey, J. (2017). How Copyright Law Works for YouTube. Copyright & New Media Law, 21(4), 5-7. [OSU full-text]

Christou, C. (2017). Copyright in 2018. Information Today, 34(10), Cover-29. [OSU full-text] / [OA full-text]

McCord, G. (2017). A Few Secrets About Fair Use. Copyright & New Media Law, 21(4), 8-10. [OSU full-text]

Myers, C., Taylor, T., & Wesolek, A. (2017). An Interview with Peter Jaszi, Professor of Law, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic. Journal of Copyright in Education and Librarianship. 2(1), 1‒8. doi.org/10.17161/jcel.v1i2.6970. [OA full-text]

Perez, J. E. (2017). Images and the Open Educational Resources (OER) movement. Reference Librarian, 58(4), 229-237. doi:10.1080/02763877.2017.1346495. [OA full-text]

Pike, G. H. (2017). NAFTA and its IP provisions at risk. Information Today, 34(10), 18. [OSU full-text]

Russell, C. (2017). The latest on H.R. 1695/S. 1010. College & Research Libraries News, 78(7), 398. [OSU full-text] / [OA full-text]

Libraries

Butler, B., & Russell, C. (2017). Section 108 revision: Nothing new under the sun. Journal of Copyright in Education and Librarianship. 2(1), 1‒37. doi.org/10.17161/jcel.v1i2.6972. [OA full-text]

Oltmann, S. s. (2017). Intellectual freedom in academic libraries: Surveying deans about its significance. College & Research Libraries, 78(6), 741-760. [OSU full-text] / [OA full-text]

Vargas, M.A., & Bright, J. (2017). Rev your engines: Racing ahead with mass digitization. Computers In Libraries, 37(7), 4-8. [OSU full-text]

Publishing & Scholarly Communication

Narayan, B., & Luca, E. (2017). Issues and challenges in researchers’ adoption of open access and institutional repositories: a contextual study of a university repository. Information Research, 22(4), 1-14. [OSU full-text] / [OA full-text]

Sterman, L. (2017). The enemy of the good: How specifics in publisher’s green OA policies are bogging down IR deposits of scholarly literature. College & Research Libraries News, 78(7), 372-401. [OSU full-text] / [OA full-text]

Yeates, S. (2017). After Beall’s ‘List of predatory publishers’: Problems with the list and paths forward. Information Research, 22(4), 1-6. [OSU full-text] / [OA full-text]

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By Maria Scheid, Copyright Services Specialist at Copyright Services, The Ohio State University Libraries

Copyright in CarmenCanvas Guide: New resource demonstrates best practices for sharing copyrighted content in Carmen courses

October 3, 2017 / Maria Scheid / Comments Off

Does your course include movies, text, pictures, or audio that you did not create? Are you planning to share materials you created with your students? To help instructors in the creation of their Carmen courses, we’ve put together the Copyright in CarmenCanvas Guide. It will help readers understand copyright law, specifically in the context of creating Carmen courses. While it is not legal advice, it is both a wealth of information and a multi-media demonstration of copyright best practices for sharing content through Carmen.

Readers can begin with the syllabus, gaining a topical overview of the information in each module of the Guide. The modules in the Guide are in order from most open (materials that may be used in a course without copyright limitation), to most restrictive (materials and uses that will require permission from the copyright owner). Each module begins with an introduction page describing the topics to be discussed in the module. After the introduction, each page within a module contains an explanation and one or more demonstrations of best practices relevant to the topic at issue. A listing of helpful resources is also included within each page, for those seeking more information on the topic. The introduction page of the Guide provides additional resources for those who wish to improve their general understanding of copyright and related issues.

Modules do not need to be completed in any particular order. However, we do encourage readers to explore all the modules to become familiar with the many options available to course creators as they pull content into their courses.

Whether a reader visits one page, or reviews the entire Copyright in CarmenCanvas Guide, it is a great resource for anyone creating courses at The Ohio State University.

Contact our office with additional questions.

Website: go.osu.edu/copyright

Email: LIBCopyright@osu.edu

Twitter: @OSUCopyright

Phone: 614-688-5849

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By Maria Scheid, Rights Management Specialist at Copyright Services, The Ohio State University Libraries

Articles of Interest: July-December 2016

February 9, 2017 / Maria Scheid / 1 Comment

This post highlights articles published in the second half of 2016 with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided when available; [OSU full-text] links will connect authenticated users through The Ohio State University Libraries, while [OA full-text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation!

Copyright

Bailey, L. (2016). How Copyright Law is Promoting Cultural Amnesia. Copyright & New Media Law, 20(2), 1-5. [OSU full text]

Kristof, C. (2016). Data and Copyright. Bulletin Of The Association For Information Science & Technology, 42(6), 20-22. [OA full text]

Matulionyte, R. (2016). 10 years for Google Books and Europeana: copyright law lessons that the EU could learn from the USA. International Journal Of Law & Information Technology, 24(1), 44-71. doi:10.1093/ijlit/eav018 [OA full text]

Menard, G. (2016). Copyright, digital sharing, and the liberal order: sociolegal constructions of intellectual property in the era of mass digitization. Information, Communication & Society, 19(8), 1061-1076. doi:10.1080/1369118X.2015.1069872. [OSU full text]

Price, D. (2016). Stop Using Our Songs!. Copyright & New Media Law, 20(3), 5-9. [OSU full text]

Reymond, M. J. (2016). Lenz v Universal Music Corp : Much ado about nothing? International Journal Of Law & Information Technology, 24(2), 119-127. doi:10.1093/ijlit/eav021 [OA full text]

Tehranian, J. (2016). Constitutionalizing Infringement: Balancing Copyright and Free Speech. Copyright & New Media Law, 20(3), 1-4. [OSU full text]

Copyright Education

Estell, A., & Saunders, L. (2016). Librarian Copyright Literacy: Self-Reported Copyright Knowledge Among Information Professionals in the United States. Public Services Quarterly, 12(3), 214-227. doi:10.1080/15228959.2016.1184997 [OA full text]

Jaszi, P., Remington, M., Ivins, O., & Dyas-Correia, S. (2016). Copyright and Intellectual Property: What You Need to Know. Serials Librarian, 70(1-4), 34-43. [OA full text]

Libraries

Ensign, D. (2016). What is Kirtsaeng and Why You Should Care. Kentucky Libraries, 80(3), 27-28. [OSU full text]

farrelly, d. (2016). VHS Copyright and Due Diligence. Library Journal, 141(20), 16. [OSU full text] / [OA full text]

Miller, R., & Homol, L. (2016). Building an Online Curriculum Based on OERs: The Library’s Role. Journal Of Library & Information Services In Distance Learning, 103(3/4), 349-359. doi:10.1080/1533290X.2016.1223957 [OSU full text]

Peet, L. (2016). Sci-Hub Sparks Critique of Librarian. Library Journal, 141(15), 14-17. [OSU full text] / [OA full text]

Publishing & Scholarly Communication

Bennett, L., & Flanagan, D. (2016). Measuring the impact of digitized theses: a case study from the London School of Economics. Insights: The UKSG Journal, 29(2), 111-119. doi:10.1629/uksg.300 [OSU full text] / [OA full text]

Laakso, M., & Lindman, J. (2016). Journal copyright restrictions and actual open access availability: a study of articles published in eight top information systems journals (2010-2014). Scientometrics, 109(2), 1167-1189. doi:10.1007/s11192-016-2078-z [OA full text]

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

Copyright Roundup, Part III

July 19, 2016 / Maria Scheid / Comments Off

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis. The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library. In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development. In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work. Take for example, the simple task of printing this blog post. Think about what’s really happening. The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer. Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies. However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development. Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration. This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

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