SandBar 6:4, January, 2008

Using Copyrighted Works

By Will Wilkins

In the last article on copyright basics, we looked at what was required to create a copyrighted work, who owns that work, and what rights went along with ownership. We will spend the next several articles looking in a little more detail at some of these issues.
      Today, we will delve into an issue on which I spend a great deal of time and energy. When a copyrighted work is created, the owner of that work inherits some very strong rights to control the use of that work. However, unlike with ownership of other personal property (a car, for instance), the general public is also given some rights to use the copyrighted work even without the consent of the owner of the copyright. Using the car analogy, it would be like someone having the right to drive your car every Tuesday morning without asking. Some of these use rights include the classroom teaching exception, fair use, and library copying, each of which will be discussed below.
      First, however, let’s look at a way you can use others’ works without having to rely on the statutory exceptions. It is very simple: permission. You can use another’s copyrighted work if you have their permission to do so. Permissions in the copyright world are generally termed “releases” or “licenses.”
      In asking for permission, you should consider the exact parameters of the permission since there are infinite variables, such as: the number of times the material may be used, geographic restrictions to the use, notice requests, and the manner in which it may be used. As to the manner in which the material may be used, you could, for instance, limit the use to print or expand it to include print and electronic media.
       Another issue to consider in obtaining permission is documentation. It is very important to document the permission so that both parties are clear on the terms and scope of the permission, and the preferred method is through the use of written agreements such as licenses or releases. The person requesting the permission will also need to make sure that the person granting the permission actually has the power to grant it so that you are not (to continue the analogy) asking my neighbor if you can borrow my car.
      The law, however, does not require permission before using a copyrighted work at all times. In fact, there are some fairly major exceptions to the ownership rights.
      One that is not exactly an exception applies to U.S. Government documents. Works prepared by an employee of the U.S. Government as part of his or her job are generally not copyrightable. Exercise caution in dealing with Government documents, however, because the work may actually be the work of someone other than a federal employee or the work may contain within it copyrighted works. Additionally, be aware that the U.S. Government can hold trademarks (no using the presidential seal). So, a little sleuthing is necessary in using Government works.
      Another instance when permission is not necessary is where the material is not protected by copyright or is in the “public domain.” Works may fall into the public domain in several ways. First, the author may place them there expressly by stating that the work is in the public domain and may be freely used. Second, a copyright may expire and the work is placed in the public domain. The current copyright term is the life of the author plus 70 years, but anything published before 1923 is now in the public domain. Finally, a work may be in the public domain for failure to meet a technical requirement of copyright. For instance, for a period of time (1923-1977), copyright notice was required when the work was published and, without notice, the work would fall into the public domain. In my experience, however, it is very difficult to determine whether the work was originally published without notice.
      The copyright statutes are filled with other situation-specific exceptions to the owner’s exclusive rights. For example, 17 U.S.C. 110(1) provides that in the course of face-to-face teaching activities at non-profit schools, teachers may perform or display copyrighted works. Other sections allow certain library copying of copyrighted materials.
      Finally, the mother of all exceptions is the “fair use doctrine.” The statute states simply enough that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research is not an infringement of copyright.”1 Unfortunately, the statute continues to define “fair use” in a less than clear manner. Essentially, for a use to be fair, it must pass a four-part balancing test. Each factor is theoretically given equal weight. The factors include:

• The purpose and character of the use: Elements considered here include: Is the use transformative or for a use other than originally intended? Is the use commercial in nature?

• The nature of the work: Im­ portant factors here include: Is the work unpublished? How much creativity was in­ volved in the work?
  
  
• The amount and substantiality of the work used: Ques­ tions I ask with regard to this factor are: Do you want to use the whole work? Even if you’re just using a small portion, are you giving away the punch line?
  
  
• The effect of the use upon the potential market for or value of the work

       As you can see, there rarely are times when you come away from the fair use test thinking that you have a concrete answer. Many groups have worked on “guidelines” or “best practices” for fair use but most fail to grasp the expansive nature of fair use and seem overly restrictive.
      Though many of these exceptions do not yield definitive answers, make no mistake that the exceptions and the rights of the public to use copyrighted works carved out in the statutes are rights as valid as copyright ownership rights themselves. In fact, a string of new cases have confirmed the vitality of the fair use doctrine. In future articles, we will take a detailed look at some of these cases as they, perhaps better than any guidelines, offer guidance on the parameters of fair use.

Endnotes:
1.  17 U.S.C. 107.
2.  Id.