Copyright Law in the Electronic Environment Georgia Harper Office of General Counsel University of Texas System

Overview

• Why is Copyright an Issue?

• Who Owns What?

• How Does Analog Fair Use Apply to the Multimedia World?

• Specific Copyright Issues Arising from the Use of Others' Works

  • I found it on the Internet
  • Digitizing analog images
  • Incorporating others' works into new works
  • Creating derivative works
    
    

• Protecting Multimedia Creations

  • Clarifying Ownership
  • Licensing Distribution
  • Registration
  • Enforcement

What Makes Copyright an Issue?

The Crash Course in Copyright

If you want to copy, distribute, create derivatives of
or display or perform others' works, you need to know
a little bit about Copyright.

First, The Basic Scheme

• The Law Gives Certain Rights to Copyright Owners

• Fair Use is the "Play in the Joints"

• Sometimes You Have to Ask for Permission

A Few Particulars

• What Does Copyright Protect?

  Original works of authorship fixed in a tangible medium of expression.
  
  

• When Does it Begin and End?

  Today, it begins at the moment of fixation in a tangible medium of expression and ends at the expiration of 50 years after the death of the author. Different rules apply to older works, however, and there are special rules for works-for-hire.
  
  

• What Does it Mean to Owners?

  Owners have exclusive rights to make copies, create derivative works, distribute, display and perform works publicly.
  
  

• What Does it Mean to Users?

  If the law protects a work you wish to use, you must ask for permission from the copyright owner unless your planned use is covered by one of the law's exemptions, such as fair use.
  
  

• What is Fair Use?

  One-liner unavailable....

Ownership

• The Author is Usually the Owner

  • A work may be jointly owned by more than one author

    • Independently copyrightable contributions
    • Mutual intent that authors will be co-owners of the work
      
      

• The Employer is the Owner When:

  • A work is created by an employee within scope of employment
  • A work is created pursuant to a contract with an assignment
  • A work is created as a work-for-hire, fits within the statutory definition of a work-for-hire and there's a contract executed before the work commences describing the work as a work-for-hire.
    
    

Fair Use

Section 107 of the Copyright Law includes illustrations of potential fair uses and describes four factors that must be taken into account in analyzing whether a use is fair.

Examples: Criticism, comment, news reporting, teaching, scholarship and research

The four factors:

• Character of the Use

• Nature of the Material to be Copied

• Amount and Importance of the Part Copied

• Effect on Market for Permissions

Getting Permission

• Collective Rights Organizations

• Contacting the Owner Directly

• What if the Owner Has Changed?

• Be Sure the Person Granting Permission Has Authority

• Should Permission be in Writing?

• What if you Have Difficulty Identifying the Owner?

• What if the Owner is Unidentifiable or Unresponsive?

• If Fair Use Does Not Apply, Seek Permission
  

Specific Copyright Questions

• I Found It On the Internet

  No one cares what I do with it, right?

  • Use is governed by the law and an implied license
  • Modifications to the implied license: Any explicit statement of permitted or prohibited uses
  • Additional uses outside the license
    
    
    • Uses permitted by Sections 110(1) and (2)
    • Fair use
      
      
  • Getting permission
    
    

• Digitizing Analog Images

  • This involves making a copy, making a derivative work and distributing it electronically - it's likely *not* a fair use!
    
    

• Incorporating Others' Works into New Works

  • Comment and criticism: Incorporating facts, charts, diagrams, illustrations and direct quotations
  • Links to others' works: General consensus is that while links are not an infringement, "inlining" others' works is
  • Citation: Always necessary, but does not substitute for permission where fair use would not cover the use
  • Asking for permission/getting a release
    
    

• Creating Derivative Works

  There is no 10%, 20%, 30%, or any percent rule.

  • There is a tension between the law and artistic traditions (Koons case)
  • Consider the contexts most likely to raise alarms:
    
    
    • Creativity of the original work
    • Commercial value of the original
    • Commercial value of the derivative
    • Market substitution
    • Wide distribution
    • Disparagement or harm to original owner's reputation
      
      

  Don't confuse likelihood of getting caught with liability for infringement:
  They are not the same thing!

  

  Protecting Multimedia Creations

  
  
  

• Ownership and Other Rights in the Work Must be Clear

  • When in doubt, spell it out in an agreement
    
    

• Licensing Distribution

  • Sample University Multimedia Development and Distribution Agreement
    
    

• Registration Is No Longer Necessary, But Still Advisable

• Enforcing Your Rights

  • Sample Cease and Desist Letter
    

Summary

• Whether Creating a Work or Commissioning One: Identify All Contributors

• Classify Their Contributions

  • Employees within the scope of employment

  • Independent contractors

• If the Work Involves Independent Contractors, Execute Agreements

• If the Work Includes Others' Works:

  • Make sure the inclusions comply with commercial fair use standards or

  • Get permission

• Register Your Work if You Must Sue to Enforce Your Rights

Recommended References:

• Offsite: links to others' materials

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