Definition of Copyright
Sect. 107 Copyright Act of 1976
Notwithstanding the provisions of sections 106 & 106A, the fair use of copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting,

Factors in determining fair use

  • The purpose and character of the use, including whether such use is commercial in nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for value of the copyrighted work
  • The fact that a work is unpublished shall not in itself bar a finding of fair use if such finding is made upon consideration of all the aforementioned factors

Some implications

  • Today almost everything is copyrighted the moment it is written.
  • Copyright is violated whether you charge money or not.
  • Postings on the web are not granted public domain status unless specifically stated.
  • Fair use doctrine applies to photographs.
  • Copyright is not lost because an author doesn't defend it each and every time.
  • "Fan fiction" or derivative works are a violation of copyright.
  • Copyright law is civil law in which standards are lower than criminal litigation proceedings.
  • Don't rationalize that you are helping someone advertise when you violate their copyright to intellectual property.

Artistic Standards & Copyright
20% or 5- Element Rule

  • Borders added/deleted
  • Cropping
  • Letters added/deleted
  • Changes of spacing
  • Shadowing

A work is considered to be a "new" work or artistic composition if 20% of the image and/or 5 major elements are changed.

  • Airbrushing
  • Major color changes
  • New items added
  • Textures changed
  • Angle changed

Comments on Artistic Standard

The Mona Lisa is the most altered artwork.

Andy Warhol didn't violate copyright when he stacked cans of Campbell's soup and made a new work. The soup cans were a registered trademark.

It's best to use your own work or a new design.

Asking is easiest - many times photographers, web page designers, etc. will allow their work to be reused for educational purposes.

Court Cases

Basic Books vs. Kinko's (S.D.N.Y. 1991)

Kinko's was held to be infringing copyrights when it photocopied book chapters for sale to students as course packets for their university classes.

The court analyzed word and found that 5 to 25% of the original full book was excessive, thus a violation.

Encyclopedia Britannica v. Crooks (1982)

For-profit producers of educational motion pictures and videos sued a consortium of public schools which was systematically recording programs as they were broadcast on PBS stations and providing copies to member schools.

Although work was for educational purposes, the schools were retaining copies for 10 years thus competing with the license.

Maxtone-Graham v. Burtchaell (1987)

Plaintiff wrote a book based on women's stories of abortions in 1973; she denied the defendant to use her excerpts. The defendant proceeded anyway.

Court found that quoting 4.3% of the author's work was not excessive - thus no case.

Information management

  • Sometimes copying one work is copying everything the photographer has published.
  • Beware of look alikes - generate your own works.
  • Don't embroil others in controversy.
  • Works rarely lose their copyright.
  • If you found it on the web, it probably belongs to someone else.

Adapted from:
Copyright and Information Management
Robertta H. Barba
San Jose State University
Copyright 1999
Used with permission from author

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