“ Borrowing” Graphics and Text for Web Pages: Fair Game, Fair Play and Fair Use Presenters: Mary Minow, J.D., A.M.L.S. LibraryLaw.Com Kim Lim – Librarian, Skyline College Wednesday, March 19, :00 p.m. to 4:00 p.m.

Legal Disclaimer Legal information Not legal advice!

Borrowing Graphics & Text for Instructional Web Pages 1. Overview and Flow Chart 2. Public domain 3. Fair use 4. Risk evaluation 5. Permission

Copyright: Overview The Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveriespromote the progress U.S. Const., Art. I, § 8, Cl. 8 OwnersUsers Big Balance: How to Promote Progress

Copyright given to more works original works of authorship fixed in any tangible medium of expression NO REGISTRATION NO NOTICE © Bono Act: adds 20 years to copyrights –Challenged by Eldred v. Ashcroft at Supreme Court (May 20, 2002) -Supreme Court upheld 1998 decision on Jan Owners Users Copyright: Recent Developments

Subject matter of copyright Is the work protected?

How can you decide whether it’s OK to use other people’s material on the Web? Public Domain? Ok to use Yes

How can you decide whether it’s OK to use other people’s material on the Web? Public Domain? Ok to use Fair Use? No Use it according to your risk tolerance Yes Probably

How can you decide whether it’s OK to use other people’s material on the Web? Public Domain? Ok to use Fair Use? No Get Permission No Use it according to your risk tolerance Yes Probably

F acts R ecipes I deas D edicated works G overnment works (U.S.) E xpired works Public Domain: In the FRIDGE

F ridge Library address, hours Call numbers URLs Population statistics Maps F ACTS

Compilations of F acts Directories Bibliographies Pathfinders List of links Cookbooks

Court Cases Database Producers Lose Telephone white pages - not original-no copyright Feist v. Rural Telephone Service 499 U.S. 340 (1991) Yellow pages - not original-no copyright BellSouth Advertising v Donnelly 999 F.2d 1436 (11th Cir. 1993) School selection criteria - no copyright Schoolhouse v. Anderson No (8th Cir. Jan. 2002) Users

Database and Collections of Information Misappropriation Act “Makes civilly liable any person who makes available in commerce to others a substantial part of the information contained in a database generated, gathered, or maintained by another person without authorization.” “Provides civil remedies, including temporary and permanent injunctions and monetary relief for damages.”

Database and Collections of Information Misappropriation Act Exceptions for: –(1) independently generated or gathered information; –(2) certain reasonable use by a nonprofit educational, scientific, and research institution; –(3) hyperlinking one online location to another; and –(4) making such information available for the primary purpose of news reporting. Excludes from protection under this Act: –(1) government and Federally mandated databases; and – (2) computer programs.

F R idge Mere listings of ingredients as in recipes, formulas, compounds or prescriptions = NO COPYRIGHT R ecipe or formulas accompanied by substantial literary expression or when there is a combination of recipes, as in a cookbook = Copyright R ECIPES

Not copyrightable Fr I dge I DEAS

Stack of Books - Great I dea! NOT COPYRIGHTABLE

Ideas, processes, methods, and systems described in copyrighted works TITLE 17 > CHAPTER 1 > Sec (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work Note: works that are not protected by copyright law may be protected by other laws.

FRI D GE “Original material and added value in Library Juice is dedicated to the public domain; beyond that the publisher makes no guarantees” D EDICATED

Freeware Not shareware R eally, expressly, available free of restrictions-ware T he author has chosen to make it available without any restrictions D EDICATED

G OVT (U.S.) FRID G E G ovt (U.S.) works PUBLIC DOMAIN States - only cases, codes or if dedicated copyright is source of income in California warning: some codes written by private parties 17 U.S.C. 105

Title 17>Chapter 1>Sec Subject matter of copyright: United States Government works Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

FRIDG E Life plus 70 Corporate works –95 years from publication or –120 years from creation E XPIRED

FRIDG E Life plus 70 Corporate works –95 years from publication or –120 years from creation E XPIRED

WHEN WORKS PASS INTO THE PUBLIC DOMAIN d.htm

Checking the Public Domain for Images

No images there YES - Good sources CHECK BACK in 60+ yrs But Is Image in the Public Domain? Check the FRIDGE F acts, R ecipes, I deas D edicated, G overnment (U.S.) E xpired

“ D edicated” Clip Art - by whom? Naive “dedications” Yahright! -it was fun Rightsforartists.com License terms link back credit limited use

G overnment Images Image search for parking meter in “.gov”

Stephen Fishman The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More (Nolo Press, 2001) Public Domain Resource

It’s in the FRIDGE but I still can’t get it! Welcome to Public Domain Images –inexpensive! Only $50 each! –museum images Welcome to the P I CLE

The Pickle of Protecting Work [P I CLE] (OR THE ART OF ENCASING WORKS IN JARS) P hysical I mpossibility C opyright L icenses E ncryption

The Pickle of Protecting Work [P I CLE] (OR THE ART OF ENCASING WORKS IN JARS) P hysical I mpossibility C opyright L icenses E ncryption plus [ D atabase legislation-proposed]

Flowchart Again: Fair Use Public Domain? Yes Ok to use Fair Use? No Get Permission No ProbablyUse it according to your risk tolerance

Court will Use PNAM Factors P urpose N ature of work A mount M arket harm Fair Use?

Fair Use “…the fair use of a copyrighted work...for purposes such as criticism, comment … scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include…[PNAM]” 17 U.S.C. 107

Fair Use- P urpose P NAM “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”

Fair Use- P urpose P NAM

Fair Use- Nature of Work P N AM “the nature of the copyrighted work;”

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors” Fair Use- N ature of Work P N AM

Fair Use- A mount & Substantiality PN A M “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”

P NAM Fair Use- P urpose - artisticstandards Examples

PNA M Fair Use- M arket Effect

Case Study: Campbell v. Acuff-Rose Music “2 Live Crew’s Pretty Woman”Pretty Woman DateReleased in July 1989 based on Roy Orbison and William Dees’ 1964 creation “Oh, Pretty Woman." Credit given?Yes. Orbison and Dees were credited on the Crew album. Modification?-lyrics changed; -added interposed scraper noises, overlays of solos in different keys, and an altered drum beat.

Fair use: Parody "in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies,8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)

Fair Use-Summary

A Lid on Fair Use L icenses E ncryption - DMCA has anticircumvention provisions [ D atabase legislation proposed]

Lawsuits look for deep pockets R egistered © $750-$30,000 per I ncident willful up to $150,000 innocent as low as $200 Library S taff = $0 if basis to believe FAIR USE (Law is K ind to libraries) 17 U.S.C. 504 (c) Risk Evaluation

Good Faith Analysis Take-down policy Insurance Disclaimers –Library of Congress examples Risk Management

Flowchart Again: Get Permission Public Domain? Yes Ok to use Fair Use? No Get Permission No ProbablyUse it according to your risk tolerance

Determine copyright holder –Copyright © 2002 Mary Minow Identify rights you need –nonexclusive, in perpetuity permission is okay Keep on file Get Permission

I am the owner to the rights to Title of Work and I authorize a nonexclusive right to reproduction, distribution, adaptation, performance and/or display by ______Library Sample Forms Permission Form

Copyright Clearinghouse (text) Corbis.com - (photographs) Art Resource (fine art)- artres.com Cartoonbank.com (New Yorker) Copyright Clearinghouses $

Copyright registration forms

Richard Stim Getting Permission: How to License & Clear Copyrighted Materials Online & Off (Nolo Press, 2000) Permission Resource

Summary: How can you decide whether it’s OK to use other people’s material? Public Domain? Yes Use it if in the FRIDGE Fair Use? No Get Permission No Probably PNAM and risk tolerance