WebReady Resource

Copyright and Fair Use

• The purpose and character of the use.
  Duplicating and distributing selected portions of copyrighted materials for specific educational purposes falls within fair use guidelines, particularly if the copies are made spontaneously, for temporary use, and not as part of an anthology.

• The nature of the copyrighted work.
  Fair use applies more readily to copying paragraphs from a primary source than to copying a chapter from a textbook. Fair use applies to multimedia materials in a manner similar if not identical to print media.

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  Copying extracts that are short relative to the whole work and distributing copyrighted segments that do not capture the "essence" of the work are generally considered fair use.

• The effect of use on the potential market for or value of the work.
  If copying or distributing the work does not reduce sales of the work, then the use may be considered fair. Of the four standards, this is arguably the most important test for fair use.

Some Implications (2)

• 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

Interpretation of amount and substantiality varies.

"Amount is measured both quantitatively and qualitatively. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective." (source)

Five major elements were changed in the picture on the right:
 

ORIGINAL WORK	"NEW" WORK
original copyright protected work artist unknown	"new" work of art Razasy "Apple"  http://www.rozasy.com/marilyn/
1.  Airbrushing 2.  Major color changes (example right) 3.   New items added Borders added/deleted Cropping Letters added/deleted Changes of spacing Shadowing 4. Textures changes 5. Angle changes	The "20% rule" was devised by looking at court case decisions (cited below) not law.  It posits that a work is considered to be a "new" work or artistic composition if 20% of the image and/or 5 major elements are changed. While some might consider that a "safety zone", it would only take one court case to change that margin of safety. The "20% rule" would cause the picture on the right to be considered "new". Major color changes, angle changes, airbrushing and the addition of an inset picture below constitute 20% differentiation.

The Mona Lisa - the most altered artwork

Andy Warhol didn't violate copyright when he layered pictures of the Mona Lisa in his work. Many others have done variations of the Mona Lisa - check out the links below!

These are allowable by "amount and substantiality"
 

"Mona Pigga" Henson 1986 Kermitage Collection

"Mona Lisa" Warhol 1963

"Monica Lewinski" Roher 1999 New Yorker Magazine

Baron, Robert A. V, 23 Arrays of Monas, 2000,http://www.studiolo.org/Mona/MONA23.htm , 2002

Baron, Robert A., Monalisiana, 2000, http://www.studiolo.org/Mona/MONASV13.htm#LIST, 2002

Court Cases   optional

Basic Books vs. Kinko's (S.D.N.Y. 1991) (3)
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) (4)
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) (5)
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. The court found that quoting 4.3% of the author's work was not excessive - thus no case.

For more information, read:
Long, Marion. "Fighting the Good Fight: Enforcing Copyright Law on the Web." Inter@ctive Week 08/28/2000, Vol. 7 Issue 34, p40
Bosen, John. "What are copyright rules on the World Wide Web? ." New Hampshire Business Review 06/16/2000, Vol. 22 Issue 13
Guidelines for Instructional Use of Copyrighted Electronic and Multimedia Materials, Princeton University: http://infoshare1.princeton.edu:80/reserves/libcitcopyright.html#genfair

Strategies to Avoid Copyright Infringement   

• Generate your own work or own design whenever possible.
  Most works are copyright protected and such works rarely "lose" their copyright.

• If you need to use a work, ASK- many times photographers, web page designers, etc. will allow their work to be reused for educational purposes. If you found it on the Web, it probably belongs to someone else.  (Do not copy the work or its source code.  Instead, request permission to link to the page or pages.)

• Give credit to the person. Not even Einstein came up with 100% original thoughts.
  Synthesis is the key to developing new ideas and new works. Cite the works you use.

  "Faculty and students who create Web pages should respect the rights of copyright holders. Fair use exemptions to copyright law apply when personal or course Web pages are used exclusively for educational purposes. This may be done by acknowledging sources, restricting access, obtaining permission or license for use, or some combination of all of these." (6)

Fair Use Exceptions or "Allowances"

• Items for educational or "non profit" use which do not leave the educational setting (securely within the classroom or password-protected web site ) remains copyright protected, but their use is allowable. (7)   (Do not copy the work or its source code.  Instead, request permission to link to the page or pages so that the integrity of the original website stays in tact.)

• Items from governmental sources are copyright protected but in the "public domain"

• Items concerning facts or ideas are not covered by Copyright laws.
  "Copyright do not extend to facts and ideas.  While the protection does cover the particular, distinctive words a writer uses to present ideas or facts, control over the underlying concepts or truths cannot be owned. Thus, a biography about a U.S. President qualifies for copyright, but the events and facts of his life do not." (7)
  
  

Davidson Hall, "Copyright and FairUse Guidelines for Teachers"   copyright-chart. pdf

 Judge these examples for yourself !   

Centers for Teaching and Learning, San Mateo Community College District, CA USA    Updated  9/7/2008  by Sevastopoulos