Neighbor Law: Copy Carefully or Not at All

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© Alice Neff Lucan

U.S. copyright law is much tougher than you think it is. It is easy to be fooled by the ease in copying art, graphics, text, music, anything you want to grab. The Internet puts it right there for the taking. Are you rescued by some mystery formula called “fair use?  The answer is only a weak “maybe.”

Are these some of the things you might remember doing?

Copying from Google Images and pasting into your own work;

Changing the colors in a painting or print;

Stylizing a photograph someone else has taken;

Translating the text into a different language;

Changing the work from photograph to sculpture, or any other medium;

Creating a web-based lexicon for a series of novels?

You guessed right; this last one is about Harry Potter. And Author J.K. Rowling won her infringement claim against that lexicon. Every action listed here is most likely a copyright infringement. In fact, most of these examples are taken from specific copyright cases.

Even temporary copying or unpublished copying can be infringement on the owner’s copyright if it is more than a fair use.

Here’s the law. If a person (or entity) has created something that is creative and original and fixed in a tangible form of expression (e.g. printed, recorded, photographed), then the creation has copyright protection virtually anywhere in the world. No registration is required.  No © notice is required. There just are not many exceptions here, so pay attention. Copyright law has been around since the early 1700s in England. It protects the tangible work of a person’s brain: the creativity, imagination, scholarship, research and even foolishness. (Does that surprise anyone?) Copyright protects news reporting, scientific reports, designs, art, photography, and some states even claim copyright for their courts’ written decisions.

If that’s so, how is a scientist to build on a colleague’s previous research? How does Google use the material in google.news?

Well, there is a “fair use” exception. There are certain favored uses, such as news uses or scholarship or research, and if the copied work falls into one of these categories then a court will weigh and balance four factors.

• the nature of the copyrighted work: fanciful or factual? Fanciful works get stronger protection.

• the nature and character of the use, especially whether it is commercial; A commercial copy is less likely to be protected.

• the amount taken, measured both by gist and portion; Don’t believe it when someone says there is a set percentage. Not so.

• the market value or impact on sales of the copyrighted works. Minimal impact on sales is more likely to be a fair use.

The court will also consider whether the parties come to the court with “clean hands,” meaning that the judge will want to know about the copier’s means and devices. For example, did the copier try to get permission? Did the copier seek advice from a copyright lawyer? Was there good faith behind the copying or was it a blatant attempt to get away with something?

Works created by U.S. Government employees are not protected by copyright. Work performed by government freelancers is protected. Hyperlinks are not protected, so you can refer your website reader to another website, but don’t frame the other’s web site within your own. Facts, charts and works whose function dictates form are not protected by copyright.  Works registered or published before 1923 are not protected. (This is never easy, but see https://copyright.cornell.edu/resources/publicdomain.cfm.)

Another excellent source for information is the website operated by the Copyright Office: copyright.gov. Look for the circulars that address separate issues in a very clear fashion. The Copyright Law is published there as well.

Disclaimer: Don’t use this information as legal advice. Ask a lawyer who takes you as a client and can get your specific facts first hand. The tiniest circumstance can change any outcome.

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