Copyright and Fair Use Guidelines

What is Copyright? Copyright gives the creator of an original creative work exclusive rights to it (for a limited amount of time). These rights include the right to determine who may: Reproduce the work (that is, the “right to copy”) Perform it Adapt it to other mediums Make money from it Copyright concerns creative works; patents and trademarks concern industrial property. Both fall under the realm of Intellectual Property (creations of the mind).

What Kinds of Work does Copyright Protect? Copyright protects the creative work of an author, provided that: the work is original (it doesn’t infringe on someone else’s copyright) the work exists in a physical form (CD, canvas, RAM) Examples of copyright-protected work: Music Plays Paintings Novels Software code Architectural designs

What Kinds of Work doesn’t Copyright Protect? Facts Copyright does not protect facts, even if the author spent a great deal of effort discovering these facts. Ideas Copyright only applies to creative expression, not the ideas or facts behind it. Uncreative work Unoriginal work Intangible work Your novel, screenplay, or anything else isn’t protected if it’s just in your head. Titles, names, slogans, etc. These must be protected using trademarks or other means.

When is your work copyrighted? You have copyright protection from the moment your work is fixed in a physical form for the first time. You don’t have to file a formal copyright, but it helps if the matter goes to court.

Copyright infringement You are infringing on copyright when you exercise any of the rights belonging to the copyright owner: Reproducing a work Selling the work “Borrowing” from the work to add to your own etc.

Consequences of infringement A copyright owner can sue you for infringement of copyright and demand: Compensation for loss of profits Statutory damages Injunctive relief

Fair Use Copyright Act labels three cases as eligible for Fair Use: Commentary/Critiques Parodies Limited educational use Other cases of Fair Use are judged based on four qualifications: the purpose and character of your use have you transformed the work by adding new meaning? the nature of the copyrighted work fair use claims are stronger for nonfiction than for fiction the amount and substantiality of the portion taken the less you take, the more likely it counts as fair use the effect of the use upon the potential market will your use deprive the copyright owner of income? If your work serves as a substitute—or competitor—for the original work, you might deprive the copyright owner of income, and you are likely to get in trouble. If your work serves to increase the interest in and market for the original work, you probably won’t get into trouble: the owners of Star Trek actually encourage fan fiction and have published collections of it. However, there is still a chance that you will be sued even if your work doesn’t compete with the original. If you tried to publish Star Wars fan fiction instead, George Lucas would have (up until Disney bought Lucas Arts) very likely sued you because he jealously guards his work.

What If You Acknowledge the Source Material? Some people mistakenly believe it’s okay to use a work if an acknowledgement is provided—this is not true! Acknowledgement may be considered in your favor in a court case, but it does not protect you.

Does It Help to Use a Disclaimer? A disclaimer disassociates your work from the work you have borrowed. For example, if you write an unauthorized book about Obi Wan Kenobi, you may include the disclaimer “This book is not associated with or approved by Lucas Arts.” In close cases where the court is having a difficult time determining whether or not your work is fair use, a disclaimer may help— but don’t count on it.

Ways to stay out of trouble Assume it’s copyright protected. Just because a work is labeled “royalty-free” or “free-use” does not mean it can be distributed or copied without authorization. Read the terms and conditions in any “Click to Accept” agreements or “Read Me” files first Respond to infringement complaints immediately and remove the material from your work / website. When in doubt, seek permission!