Tag: Fair Use (page 1 of 3)

Articles of Interest: July-December 2016

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 Law20(2), 1-5. [OSU full text]

Kristof, C. (2016). Data and Copyright. Bulletin Of The Association For Information Science & Technology42(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 Technology24(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 & Society19(8), 1061-1076. doi:10.1080/1369118X.2015.1069872. [OSU full text]

Price, D. (2016). Stop Using Our Songs!. Copyright & New Media Law20(3), 5-9. [OSU full text]

Reymond, M. J. (2016). Lenz v Universal Music Corp : Much ado about nothing? International Journal Of Law & Information Technology24(2), 119-127. doi:10.1093/ijlit/eav021 [OA full text]

Tehranian, J. (2016). Constitutionalizing Infringement: Balancing Copyright and Free Speech. Copyright & New Media Law20(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 Quarterly12(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 Librarian70(1-4), 34-43. [OA full text]

Libraries

Ensign, D. (2016). What is Kirtsaeng and Why You Should Care. Kentucky Libraries80(3), 27-28. [OSU full text]

farrelly, d. (2016). VHS Copyright and Due Diligence. Library Journal141(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 Learning103(3/4), 349-359. doi:10.1080/1533290X.2016.1223957 [OSU full text]

Peet, L. (2016). Sci-Hub Sparks Critique of Librarian. Library Journal141(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 Journal29(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). Scientometrics109(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

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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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.

Copyright Roundup, Part II

In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.

Another fair use win for Google in most recent Google Books lawsuit.

Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project.[1]  As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.

On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.

The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.

The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.

Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.

Why does it matter?

Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.

In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.

The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.

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Copyright Roundup, Part I

The past few months have seen a number of interesting trials and developments in copyright law. We are providing a two-part Copyright Roundup to summarize those cases you may have missed and to let you know why they are important. In part I, we discuss embarrassing photos, cheerleading uniforms, and monkey selfies.

Blogger’s use of “aesthetically displeasing” photograph of Miami Heat investor still a fair use.

We first covered the facts in the Katz v. Chevaldina case in our blog post, “Copyright as an Instrument for Censorship?”, noting that Mr. Katz had filed an appeal of the district court’s finding that defendant Irina Chevaldina was entitled to summary judgement based on a fair use defense. On September 17, 2015, the 11th Circuit released their opinion, affirming the lower court’s decision. Analyzing the purpose and character of use, the court found every use of the Mr. Katz photo to be primarily educational, rather than commercial (educating others about the nefariousness of Mr. Katz) and use of the photo to be transformative (Chevaldina used the photo to ridicule and satirize Mr. Katz’s character). When considering the nature of the copyrighted work, the court found the previously published photo to be primarily a factual work (the photo was a candid shot and the court found no evidence to establish that the photographer attempted to “convey ideas, emotions, or influence Katz’s expression or pose”.[1] Finally, the use of the photo would not materially impair Katz’s incentive to publish the work—because Katz obtained ownership to prevent publication, there was no market for the original work.

Why does it matter? Katz’s conduct in initiating this lawsuit raised some big questions about the role of copyright law in censoring speech. In this case, Katz’s attempt to use copyright law as a shield against unwanted criticism ended up helping to strengthen Chevaldina’s fair use defense. The court’s central question under the fourth fair use factor was whether Chevaldina’s use of the photo would cause substantial economic harm that would impair Katz’s incentive to publish the photo. By obtaining the copyright in the photo and initiating a lawsuit to prevent publication of the photo, however, Katz demonstrated his desire to stop any use of and access to the photograph. The court held that Chevaldina’s use of the photo did not impair Katz’s incentive to publish the photo because Katz had no incentive to publish the photo and the likelihood of Katz changing his mind was “incredibly remote.”

The court also had an interesting analysis of the factual nature of the photograph. For a thoughtful discussion of this point, read Kevin Smith’s post, “Photography, Fair Use and Free Speech.”

Copyright protection for cheerleading uniforms: Varsity Brands v. Star Athletica

Varsity Spirit Corporation and Varsity Spirit Fashions and Supplies, Inc. (Varsity) designs and manufactures cheerleading apparel and accessories, having received copyright registrations for many of their design sketches. These designs included different combinations and arrangements of stripes, zigzags, chevron, and color blocks. The question on appeal was whether these elements were needed to make a cheerleading uniform or whether the design elements could exist separately from the uniform.

On August 19, 2015, the Sixth Circuit reversed the district court’s decision that Varsity’s designs were not physically or conceptually separable from the utilitarian function of the cheerleading uniform, holding that the graphic designs on Varsity’s cheerleading uniforms were separate and therefore copyrightable. The Court distinguished Varsity’s design from dress designs, which typically do not receive copyright protection.

Why does it matter? U.S. copyright does not protect useful articles. Useful articles are articles that have a utilitarian function beyond portraying the appearance of the article or conveying information. To the extent that a work includes a useful function, copyright will only protect those original elements of the work that can be independently separated from the useful function of the work.

Prior to this case, the Sixth Circuit (binding authority for Ohio’s federal district courts) had not adopted an approach for determining separability. After reviewing the approaches taken by other circuits, the Sixth Circuit decided to adopt a hybrid approach to determine if a particular design is a copyrightable pictorial, graphic, or sculptural work. To make this determination, the following questions must be asked:

  1. Is the design a pictorial, graphic, or sculptural work?
  2. If yes, is it a design of a useful article?
  3. If the design is of a useful article, what are the utilitarian aspects of the useful article?
  4. Can the viewer of the design identify pictorial, graphic, or sculptural features separately from the utilitarian aspects of the useful article?
  5. Finally, can the pictorial, graphic, or sculptural features of the design of the useful article exist independently of the utilitarian aspects of the useful article?

In answering these questions, the court identified a utilitarian function of a cheerleading uniform to “cover the body, wick away moisture, and withstand the rigors of athletic movements.”[2] The court found that the top and skirt of the uniform could still be identified as a cheerleading uniform even without stripes, chevrons, color blocks, or zigzags. Finally, the interchangeability of the designs indicates the graphic features can exist separately and independently from the utilitarian features of the uniform.

Can a monkey own a copyright?

The “Monkey Selfie” case has taken an additional twist with a new lawsuit brought on behalf of Naruto, the crested macaque. The monkey selfie case began in 2011 when photographer David Slater took a trip to Indonesia and left his camera unattended. A monkey (Naruto) used the camera to take a number of photos of himself grinning into the camera. One self-portrait was reproduced in publications around the world, eventually being added to Wikimedia Commons under the presumption that the work was in the public domain.[3] This prompted Mr. Slater to issue several DMCA takedown notices.

In 2014, Mr. Slater published a book containing copies of the Monkey Selfies, continuing to assert himself as copyright owner of the photographs. Later that year, the Copyright Office revised the Compendium of U.S. Copyright Office Practices, to clarify that the U.S. Copyright Office would not register works produced by animals, including, for example, “a photograph taken by a monkey.”[4]

On September 21, 2015, PETA filed a copyright lawsuit on behalf of Naruto against Mr. Slater, alleging that Mr. Slater falsely claimed to be the author of the photographs and made unauthorized copies of the works for commercial purposes. The lawsuit seeks an order to permit PETA to administer and protect Naruto’s rights in the photographs, declaring Naruto the author and copyright owner of the works.

Why does it matter? U.S. copyright law does not specify human authorship, though the U.S. Copyright Office has provided guidance on the issue through the Compendium of U.S. Copyright Office Practices. This case raises a number of interesting questions around how we define, or should define, “author.” If non-human authors are recognized as eligible copyright owners, should lines be drawn? Should the law, for example, provide exclusive rights to machines? And if the author can’t communicate their preferences, should we allow someone to speak on their behalf?

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We will continue our Copyright Roundup in part two, where we will look at some important fair use developments in the Google Books lawsuit and Stephanie Lenz’s “dancing baby” case against Universal Music and answer the question, “is Happy Birthday to You finally in the public domain?”

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

 

[1] Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).

[2] Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237 (6th Cir. 2015).

[3] Wikimedia Commons refused to remove the photograph on the basis that Mr. Slater was not the author of the work. Without a human author, Wikimedia Commons argued, the work may not be protected by copyright.

[4] U.S. Copyright Office, Compendium of the U.S. Copyright Office Practices (3d ed. 2014) § 313.2.

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: eReserves

Note: This blog has been updated to reflect the fact that the eReserves service within the University Libraries has been discontinued.

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 available posts in the series here.

The Ohio State University Libraries previously provided an eReserves service to assist instructors with uploading supplementary course readings to Carmen (the learning management system used at OSU). Terry Camelford, the Program Coordinator for eReserves, met with me to discuss her team’s work and how they navigated the copyright issues related to eReserves.

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Fair Use in Digital Storytelling

 “…(A) digital story is a short (3-5 minute) movie which uses images, voice, and music to tell a story. There are a variety of media that can be used to create digital stories and a variety of reasons for creating them. ” – The Ohio State University Digital Storytelling Program

Authors of digital stories remix and reuse materials to create something new: a short video with a personal narrative. Authors write and record their own narration and often use personal photos, video, and sound; however, they frequently incorporate copyrighted materials from other sources in order to develop powerful digital stories. For example, a narrative may require abstract images to help convey a particular idea or emotion, or a specific element of meaningful culture such as a quote from a favorite book or photo of a particular event.

The stories produced in connection with the OSU Digital Storytelling Program are posted on YouTube and shared on campus through occasional viewings. In order to promote legal use of third party materials and avoid takedown requests, participants in the OSU Digital Storytelling Program are encouraged to source materials as much as possible from the public domain, licensed collections (e.g. Creative Commons photos on Flickr), or create things themselves. However, there are times when an author wants or needs to use copyrighted material, and wants to rely on fair use or seek permission in order to proceed.

As defined in Section 107 of the U.S. Copyright Act, fair use is a defense against charges of copyright infringement determined through the analysis and application of the four fair use factors:

  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.

The fair use exception is quite broad and can apply to a wide variety of uses (which could include digital storytelling) but the lack of specificity can make it difficult to ascertain whether or not a particular use may qualify as fair use.  Those considering fair use, should employ a fair use checklist to conduct an analysis and weigh the criteria favoring and opposing fair use (our video provides more information and an example of doing a fair use analysis).

Fair use and your role as a digital storyteller

As a digital storyteller, you may have the option to rely on fair use depending on what material you are using, and how and why you are using it. A fair use analysis will help you evaluate your answers to those questions.

The first factor of fair use is concerned with the purpose and character of a proposed use. As an author, you should think carefully about the purpose of your digital story. Is it educational? Are you commenting on, criticizing, or parodying the copyrighted work you wish to use? These types of purposes favor fair use.  Transformative use also weighs in favor of fair use. If you use a copyrighted work in your digital story for a purpose other than which it was originally intended for, you may be able to make an argument for transformative use of that material. Using your favorite song as a soundtrack to your digital story is not a transformative use, but criticizing the lyrics of another song for its message of oppression or intolerance could be a transformative use.

Ask yourself whether you need a particular work in order to accomplish the purpose of your digital story. If you simply need some piece of material that depicts archery as a recreational activity, then you do not need to use a clip of Katniss Everdeen from The Hunger Games.  You can likely find a public domain or Creative Commons licensed photo, or even take your own photo. On the other hand, if your digital story critiques or comments on the character of Katniss Everdeen specifically and how she contributes to the reversal of traditional gender roles in the Hunger Games, then you may actually need a clip or photo from the films to support your narrative.

The second factor of fair use requires you to assess the nature of the work you are using. Is it factual or fiction? Published or unpublished? Is it highly creative? Many materials likely to appear in a digital story, such as music and photos, are considered highly creative works; this weighs against fair use, but it could potentially be balanced out by the other factors.

The third factor of fair use considers the amount and substantiality of the portion of the copyrighted work being used. Ask yourself how much of a particular work you need to use in order to accomplish your purpose. In your digital story about how the television show The Walking Dead saved your life because it inspired you to prepare for emergencies, will a still image from the show suffice, or does your story comment on a particular scene that you need to show as a video clip in order to fulfill your purpose? To strengthen your argument in favor of fair use, use only the amount necessary to fulfill the purpose of your story.

The “substantiality” component of the third fair use factor refers to the significance of the material you want to use in relation to the entire copyrighted work. Could the scene you want to use from The Walking Dead be considered particularly significant to the show or a particular episode? This is sometimes referred to as using the “heart of the work”. Another way to phrase this could be: “how big of a spoiler is it?” Showing the death of a main character or major events from a season finale could be considered the heart of the work and weaken your argument for fair use (particularly if you did not necessarily need to use that particular scene to accomplish the purpose of your digital story).

The fourth factor of fair use considers the effect your use of the material could have on the potential market for or value of the original work. Could your use impact the copyright owner’s ability to profit from his or her work? Digital stories have the potential to cause a detrimental effect on the market for a work because they are accessible to the public online, and they will remain available for a long time. For example, using a popular copyrighted song as a soundtrack for your video could impair the market for that song by providing a substitute for purchasing the song as an MP3. Viewers could simply play the digital story whenever they wanted to listen to the song, as opposed to going out to buy their own copy.

You must consider all four factors of fair use when evaluating whether or not you have a strong argument in favor of fair use. No single factor is more important than the others; for example, an educational purpose does not automatically qualify a proposed use as fair use. Additionally, although each factor is equally important to a fair use analysis, checklist criteria should not be tallied up with a simple “majority rules” determination. You should keep an eye out for significant problems that could outweigh other criteria, such as a particularly damaging effect on the market for a work.

Still have questions about fair use? Contact the OSU Libraries’ Copyright Resources Center for assistance:

Email: libcopyright@osu.edu

Phone: 614-688-5849

Website: go.osu.edu/copyright

Twitter: @OSUCopyright

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

Fair use toolkit for librarians

Fair use is an important component to U.S. copyright law that empowers individuals to make use of copyrighted materials without asking or paying for permission for certain socially useful purposes, such as scholarship, research, and education. It should come as no surprise that libraries, being heavily involved in such endeavors, often rely on fair use to accomplish many day-to-day activities in support of teaching, learning, and research.

Unfortunately, misunderstandings and uncertainty about copyright and fair use may prompt librarians and administrators to avoid some projects or limit services that could otherwise qualify as fair use. Librarians are not the only ones to find themselves in this predicament, but the good news is that community-specific best practices help dispel fair use myths and provide guidance within a particular discipline.

The Association of Research Libraries (ARL), in partnership with the Center for Social Media and the Washington College of Law at American University, has developed several resources to help librarians and library administrators understand and apply fair use as it pertains to academic and research libraries:

Lastly, no fair use toolkit is complete without a checklist to help analyze the four factors of fair use:

 

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair use best practices to the rescue!

Most statutory copyright exceptions tend to be very narrow in scope and limited by explicit requirements or restrictions. In comparison, fair use is quite broad; the statute cites just four general factors to consider when evaluating fair use. Such flexibility permits the use of copyrighted materials in many contexts and for many purposes, but this lack of specificity can also lead to confusion over what may actually qualify as fair use. In fact, the only way to definitively establish fair use is to receive a decision from a judge!

To the detriment of creators and consumers alike, doubts about fair use and anxiety over the penalties for infringement may prevent creators from pursuing educational, creative, and socially useful projects that could potentially constitute fair use. For instance, a recent study on copyright, permissions, and fair use in the arts reports that confusion and apprehension regarding these issues led to self-censorship and abandoned projects for one third of visual artists and visual arts professionals (e.g. editors, publishers, and historians).

Flying superhero

Superhero by Moriah Rich
from The Noun Project

Fair use best practices have been established to address this confusion and to help establish acceptable industry customs. Community-specific best practices help creators feel more confident in their rights and justify the reliance on fair use for a variety of projects. Besides providing guidance for practitioners, community-specific fair use codes may influence court decisions by contextualizing individual fair use cases within industry common practice.

Emerging community-driven best practices recognize the short comings of arbitrary and impractical directives such as the 1976 Classroom Guidelines* and focus on articulating moderate, community accepted practices rather than establishing a maximum or minimum of fair use. Best practice codes help users avoid fair use fantasies and intimidating misinformation when developed in partnership with reliable sources, such as the American University College of Law and Center for Media & Social Impact.

American University regularly partners with communities to devise best practice codes appropriate for those industries. The guidelines produced thus far include:

*Don’t be fooled: The 1976 Classroom Guidelines do not have the force of law!

Read more:

Power to the People: Five Reasons Fair Use Best Practices Are Changing the World – ARL Policy Notes

Timid About Fair Use? – Inside Higher Ed

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

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