Fair Use, Free Use, and Use by Permission: How to Handle Copyrights in All Media

© 2005 Lee Wilson

All rights reserved. Copyright under Berne Copyright Convention, Universal Copyright Convention, and Pan-American Copyright Convention. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission of the publisher.

09 08 07 06 05 5 4 3 2 1

Published by Allworth Press

An imprint of Allworth Communications, Inc.

10 East 23rd Street, New York, NY 10010

Cover design by Derek Bacchus

Interior design by Joan O'Connor

Page composition/typography by Integra Software Services

ISBN: 1-58115-432-1

Library of Congress Cataloging-in-Publication Data

Wilson, Lee, 1951-

Fair use, free use, and use by permission: using and licensing copyrights in all media/by Lee Wilson.

p. cm.

Includes index.

1. Copyright—United States—Popular works. 2. Fair use (Copyright)—United States. I. Title.

KF2995.W477 2005

346.7304'82—dc22

2005026429

Printed in Canada

This book is dedicated

to my very good friend Carolyn Taylor Wilson,

whose personal life has been dedicated

to her family and friends and

whose professional life has been dedicated

to book lovers.

If there were more people like Carolyn

in the world, there would be far fewer problems.

CONTENTS

Preface

©   Part I

Understanding Copyright

1    Copyright Basics

2    Copyright Infringement

3    Copyright Duration

4    Public-Domain Materials

©   Part II

Fair Use and How It Works

5    Copyright Fair Use

6    Fair Use in News Reporting

7    Fair Use in Creative Works

8    Fair Use by Educators

9    Fair Use and the Internet

10    Fair Use in Commerce

©   Part III

Permissions and Licenses

11    Understanding Permissions

12    Getting Permissions

13    The Right of Privacy, the Right of Publicity, and Releases

©   Part IV

Appendixes

A    Fair Use Checklist

B    Copyright Office Circular 22, How to Investigate the Copyright Status of a Work

C    Copyright Statute Sections 106 and 106A, Rights of Copyright

D    Copyright Statute Section 108, Libraries and Archives Exemptions

E    Copyright Statute Section 110, Nonprofit Educational Institutions Exemptions

F    Sample Permission Request Letters (with instructions)

When a Permission is Requested from the Owner of the Copyright in a Published Work

When a Permission is Requested from the Author of an Unpublished Work

When a Permission is Requested from the Heir of the Creator of an Unpublished Work and a Waiver of Any Invasion of Privacy Claim is Sought

When Permission for the Use of a Published Work Has Already Been Negotiated and/or Was Granted after the Use Was Made

G    Form Agreements (with instructions)

Nonexclusive License of Copyright

Exclusive License of Copyright

Photo Release

Index

PREFACE

THIS BOOK IS DESIGNED TO FUNCTION SOMETHING like the casebooks used in most law school courses. After all, those books and this one are designed for the same purpose—to teach. Casebooks present series of digest versions of actual appeals court decisions. Law students are supposed to read these and, after considering the facts in each case and the written opinion of the court in deciding the case, learn how the law applies to various fact situations. For the most part, the situations described in the examples given in this book are fictitious. However, they are realistic and because they are written specifically to demonstrate how application of the law regarding fair use of copyrights depends greatly on the specific facts in any situation, they are even more instructive than most real-life cases. They demonstrate an important basic principle of copyright fair use: that two situations—identical except for one circumstance—may lead to opposite results. One set of facts may amount to a fair use of a copyrighted work while another nearly identical use may constitute infringement. These examples are meant to teach you how to decide correctly for yourself, in most instances, whether a proposed use is a fair use.

You'll notice a lot of lawyers in these examples. That's because they are true-to-life examples of situations involving questions of copyright infringement. In real life, such situations usually involve lawyers, often even if the suspected infringer proves not to have trespassed on anyone's rights. And those lawyers almost always charge high hourly fees, between about $175 and $400 per hour, to evaluate the circumstances surrounding the claimed infringement. This means that even being accused of infringement can be expensive. One of the best ways to avoid infringement claims is to educate yourself sufficiently to be able to decide correctly when you need permission to use a copyrighted work. It's not too hard, especially if you begin the fair-use analysis with respect for the copyright rights of others. That respect, and the ability to read and apply the guidelines contained in this book, ought to keep you out of trouble in most situations and help you avoid the need for a lawyer. Think of it this way: The imaginary lawyers throughout this book can substitute for a real lawyer who charges you for his opinion. Save the money you'd otherwise have to spend on legal fees for a rainy day. Lawyers already profit sufficiently from disputes Americans can't or don't avoid; they don't need your hard-earned paycheck, too.

But why respect copyright, especially if no one will ever know you borrowed someone else's copyright? It has to do with more than the probability of getting caught (or not getting caught). Deciding whether to respect the copyrights of others is an ethical decision. For most creative people, it's not a hard decision to make; they respect the copyrights of others because they hope that others will respect their copyrights. It doesn't necessarily work this way, of course—there's no guarantee that your copyrights are safe because you decline to steal from other creators—but we must remember that any group is made up of its members and that the actions and attitudes of any group are made up of the actions and attitudes of the individuals in it. If you believe that copyright benefits society, as our founding fathers planned, then you must, for the sake of consistency, recognize the boundaries copyright imposes.

Furthermore, as with many ethical decisions, respecting copyright leads to self-respect. Any person who enjoys the ability to create something is not so desperate for the necessities of life that he must steal from others. Art is a bourgeois activity only possible after the immediate needs of life are met. But so are ethics—the fine points of who owns what is usually a consideration only when everyone's tummy is full.

And respecting copyright law is one of many small stones in the wall we as a society erect against chaos. It's an important part of the current social contract. We shall see that copyright is really an incentive to encourage the creators among us to produce the art and literature—and lesser works—that we all depend on. American culture, and especially American popular culture, is perhaps our main export. For better or for worse, we influence the world. To enhance our own lives and to protect our influence worldwide, we should all respect and protect copyright. If you love art and culture, popular culture, or just the wonderful American system that lets almost anyone say—or write—almost anything at almost any time, you should understand that, along with the First Amendment, it was all created by, and is supported by, our copyright system. It's a long-held tradition in this country to speak out and to allow others to do the same; when you consider it, respecting copyright is patriotic and ethical and essential for an informed life in a free society. This book can tell you how to respect the copyright rights of others while making the maximum allowable use of works created by others. Like democracy, it's not a perfect system. But, again like democracy, it's the best anyone has come up with. Knowledge is power—read on!

PART I.

Understanding

Copyright

CHAPTER 1

Copyright

Basics

THE MEN WHO WROTE OUR CONSTITUTION acted to ensure the production of the works of art and intellect necessary to create and promote culture and learning in our infant nation. In Article I, Section 8, Clause 8 of the main body of the original, unamended Constitution, they gave Congress the 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 Discoveries. Congress carried out this mandate by passing the first U.S. copyright statute in 1790 (and also by enacting a succession of patent statutes). You may think from reading the language of the Constitution that only authors of books are protected by copyright law, but that is not the case.

Historically, American copyright law has interpreted broadly the writings granted constitutional protection. At the time of the enactment of the first copyright statute, only maps, charts, and books were protected. In the intervening the two centuries, U.S. copyright statutes (there have been several) and court decisions have extended copyright protection to new subjects of copyright as previously nonexistent classes of works emerged, needing protection. U.S. copyright statutes have successively embraced, among other new technologies, photography, motion pictures, and sound recordings.

This system of enumerating the classes of writings protected by copyright worked well enough until it became obvious that new methods of expression were being created faster than courts and lawmakers could amend the then-current copyright statute to include emerging technologies within the scope of copyright protection. The present U.S. copyright statute abandons the effort to enumerate every class of work protected by copyright and simply states that copyright protection subsists… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. This language allows copyright to grow automatically, extending protection to new forms of expression. This is fortunate, because the revolution in communications that characterized the last half of the twentieth century shows no sign of abating. Indeed, it may have reached warp speed.

By recognizing property rights in creative works and awarding ownership of those rights to the creators of the works, our copyright statute encourages expression in every art form and medium. It balances the interests of creators against those of the public. Creators reap the profits from their works for the duration of copyright protection by limiting access to their creative works to those who pay for the privilege of using them. The public immediately enjoys controlled access to the works that artists, writers, and composers create, and eventually, those works become public property, available for use by anyone. This is precisely what the founding fathers had in mind; James Madison cited copyright as an instance in which the public good fully coincides with the claims of individuals.

So, the United States gives its citizens the right to say almost anything at all and rewards that expression, whether meritorious or mundane, by bestowing upon it a copyright. But what, exactly, is a copyright? It is a set of rights that the federal copyright statute grants to the creators of literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and audiovisual works and sound recordings. Copyright law rewards creators by granting them the exclusive right to exploit and control their creations. With few narrow exceptions, only the person who created the copyrighted work or someone who has been sold the copyright in the work or given permission to use the work is legally permitted to reproduce it, to prepare alternate or derivative versions of it, to distribute and sell copies of it, and to perform or display it publicly. Any unauthorized exercise of any of these rights is called copyright infringement and is actionable in federal court.

Before you can begin to understand copyright—that invisible but powerful and infinitely expandable concept that governs so many of our dealings with each other—you must first learn what it is not. Two of the things that copyright is not are trademarks and patents. The three forms of intellectual property are more like cousins than triplets, but many people, even lawyers and judges, confuse them.

Copyrights Compared

to Trademarks and Patents

Although all three protect products of the human imagination, copyrights, trademarks, and patents are distinct but complementary sorts of intellectual property. Each is governed by a different federal law. The U.S. patent statute originates in the same provision of the Constitution that gives rise to our copyright statute. Our federal trademark statute originates in the commerce clause of the Constitution, which gives Congress the power to regulate interstate commerce. Only the federal government regulates copyrights; copyright registrations are granted by the Copyright Office, which is a department of the Library of Congress. Similarly, only the federal government can grant a patent. However, although the federal government grants trademark registrations, so do all the fifty states.

Copyrights

Since January 1, 1978, in the United States, a copyright is created whenever a creator fixes in tangible form a work for which copyright protection is available. Under most circumstances, a copyright will endure until seventy years after the death of the creator of the copyrighted work; after copyright protection expires, a work is said to have fallen into the public domain and anyone is free to use it. Registration of a copyright enhances the rights that a creator automatically gains by the act of creation, but it is not necessary for copyright protection. The chief limitation on the rights of copyright owners is that copyright protects only particular expressions of ideas rather than the ideas themselves. This means that several people can create copyrightable works based on the same idea; in fact, there is no infringement, no matter how similar one work is to another unless one creator copied another's work.

Trademarks

Trademarks are words or symbols that identify products or services to consumers. Unlike a copyright, in which the creator has protectable rights from the inception of the copyrighted work, rights in a trademark accrue only by use of the trademark in commerce. They then belong to the company that applies the mark to its products rather than to the person who came up with the name or designed the logo that becomes the trademark. Roughly speaking, a company gains rights in a trademark in direct proportion to the duration and the geographic scope of its use of the mark; ordinarily, the company that first uses a mark gains rights in that mark superior to those of any other company that later uses it for the same product or services. Unauthorized use of a trademark is trademark infringement.

As is the case with copyrights, registration enhances rights in trademarks but does not create them. It is generally easy to register a mark within a state, whereas federal trademark registration, which confers much greater benefits, is more difficult to obtain. Trademark rights last indefinitely; as long as a mark is used in commerce, its owners have protectable rights in it.

(For more information about trademarks, see The Trademark Guide, by Lee Wilson, published by Allworth Press.)

Patents

A patent is a monopoly granted by the U.S. Patent Office for a limited time to the creator of a new invention. A utility patent may be granted to a process, machine, manufacture, composition of matter, or improvement of an existing idea that falls into one of these categories. For example, a utility patent would be granted to the inventor of a new industrial or technical process or a new chemical composition. Utility patents endure twenty years after the patent application was filed. Plant patents are issued for new asexually or sexually reproducible plants and last seventeen years from the date of issue. Design patents are granted for ornamental designs used for nonfunctional aspects of manufactured items. An example of this would be a lamp base in the shape of a caryatid; the caryatid would visually enhance the appearance of the lamp but would not improve the function of the lamp base—that is, elevating the bulb and shade portions of the lamp. A design patent lasts fourteen years from the date it is issued. An inventor must meet very strict standards before the Patent Office will grant a patent for his invention; then, he can stop everyone else from manufacturing the invention without permission or even importing an infringing invention into the United States, even if the infringer of the patent independently came up with the same invention.

No product name is protectable by patent law; a product name is a trademark, and trademark protection is earned in the marketplace rather than being awarded like a patent. And no song, story, painting, or play can be patented; copyright gives writers and artists the right to keep others from copying their works, but not a complete monopoly on the creation or importation of similar works. (For a more detailed discussion of patent law, see The Patent Guide, by Carl Battle, published by Allworth Press.)

Requirements for Copyright Protection

Under the U.S. copyright statute, a work must satisfy three conditions to qualify for copyright protection. Each of these requirements must be met in order for the work to come under the copyright umbrella.

The three statutory prerequisites for protection are:

1. The work must be original in the sense that it cannot have been copied from another work

2. The work must embody some expression of the author, rather than consisting only of an idea or ideas

3. The work must be fixed in some tangible medium of expression

Originality

The originality condition for protection leads to the apparent anomaly that two works identical to each other may be equally eligible for copyright protection. So long as neither of the two works was copied from the other, each is considered original. In the sense that it is used in the copyright statute, originality means simply that a work was not copied from another work rather than that the work is unique or unusual. Judge Learned Hand, a jurist who decided many copyright cases, summarized the originality requirement with a famous hypothetical example: "[I]f by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an ‘author,’ and, if he copyrighted it, others might not copy the poem, though they might of course copy Keats's." For copyright purposes, the similarities between two works are immaterial, as long as they do not result from copying.

Expression

The current copyright statute restates the accepted rule, often enunciated in copyright decisions, that copyright subsists only in the expression embodied in a work and not in the underlying ideas upon which it is based. The statute says: 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. This rule plays an important role in copyright infringement cases, because a judge often must determine whether the defendant has taken protected expression from the plaintiff or merely borrowed an unprotectable idea (or procedure, process, system, etc.).

Fixation

The U.S. copyright statute protects works eligible for protection only when they are fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The statute deems a work fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

This third requirement for copyright protection sometimes surprises people, who may not realize, for instance, that a new song performed at an open-mic writers’ night or a dance routine presented in a talent show, although it may be original and contain a high proportion of protectable expression, is not protected by copyright until it is fixed within the definition of the copyright statute and can be legally copied, word for word or move for move, by anyone who witnesses its performance. A song can be fixed by recording any intelligible version of its music and lyrics on a cassette or CD or by reducing its melody to written musical notation that also includes its lyrics. Any piece of choreography can be fixed by videotaping it in sufficient detail to record the movements of the dancers or by use of a written system of choreographic notation such as Labanotation.

What Is Protected

Most people realize that copyright protects works of art like poems and short stories, photographs, paintings and drawings, and musical compositions. It may be less obvious that copyright also protects more mundane forms of expression, including such diverse materials as advertising copy, instruction manuals, brochures, logo designs, computer programs, term papers, home movies, cartoon strips, and advertising jingles. Artistic merit has nothing to do with whether a work is protectable by copyright; in fact, the most routine business letter and the most inexpertly executed child's drawing are just as entitled to protection under our copyright statute as bestselling novels, hit songs, and blockbuster movies.

However, copyright does not protect every product of the human imagination, no matter how many brain cells were expended in its creation. In fact, any discussion of copyright protection must be premised on an understanding of what copyright does not protect.

Idea Versus Expression

It is such an important principle of copyright law that it bears repeating: Copyright protects only particular expressions of ideas, not the ideas themselves. This means, of course, that if the guy sitting behind you on the bus looks over your shoulder and sees, comprehends, and remembers your sketches for a necklace formed of links cast in the shape of sunflowers, he is legally free to create his own sunflower necklace so long as it isn't a copy of yours. It may be unethical for him to steal your idea, but it's neither illegal nor actionable in court. Although this may seem unjust, if you think about it, the logic is clear. Our Constitution empowered Congress to pass a copyright statute granting the creators among us property rights in the products of their imaginations so that American society could benefit from their creations. Because ideas are the building blocks for creations of any sort, and because one idea may lead to thousands of expressions of that idea, granting control over an idea to any one person would have the effect of severely limiting creative expression; no one else would be able to use the idea as the basis for a new creation. Therefore, copyright protects only your particular expression of an idea, not idea itself. Similarly, copyright protection is denied to procedures, processes, systems, methods of operation, concepts, principles, or discoveries, because these products of the imagination are really all particular varieties of ideas.

This means that your idea of printing grocery coupons right on the brown paper bags used in your supermarket can be copied by anyone, even a competing grocery store, although the particular expression of your idea—your copy and artwork for the bags and the advertisements publicizing the promotion—may not.

And your system of giving your customers double the face-value discount of any coupon if they use it to buy two items at the same time is not protectable by your copyright in your coupon-promotion materials and can be employed at any time by anyone, without your permission.

Furthermore, if you print recipes on your grocery bags in addition to discount coupons, you cannot, of course, stop anyone from using the method outlined in the Low-Fat Meatloaf recipe to create a low-fat meatloaf. Nor can you stop anyone, even a competitor, from employing your concept of using a low-fat meatloaf recipe to sell the food products used in the recipe or from employing the marketing principle behind your promotion—that food shoppers are likely to purchase particular brands of food products that are specified by name in an interesting recipe. And even if you were the first person in the universe to come up with a technique for lowering the fat content of the finished dish, once you disclose your discovery to the public, you can't stop anyone from passing it on to others. You can't even stop anyone from using the information outlined in your recipe to create his or her own recipe for low-fat meatloaf. (See the discussion of functional works below.)

Unprotectable Elements

A few categories of products of the imagination are too close to being mere unembellished ideas for copyright protection to apply. In other words, these categories of creations lack sufficient expression to be granted copyright protection. There are several commonly occurring unprotectable elements of various sorts of works from which the copyright statute or courts have withheld protection, including:

• Literary plots, situations, locales, or settings

• Scènes à faire, which are stock literary themes that dictate the incidents used by an author to express them

• Literary characters, to the extent that they are types rather than original expressions of an author, as opposed to pictorial characters, the visual representation of which adds considerable protectable expression to the characters

• Titles of books, stories, poems, songs, movies, and so forth, which have been uniformly held by courts not to be protected by copyright (although a title may gain protection under the law of unfair competition if it becomes well known and associated in the public mind with one author)

• Short phrases and slogans, to the extent that they lack expressive content, the determination of which is aided by the length of the phrase or slogan, very short phrases and slogans being more likely to constitute the equivalent of an unprotectable idea than long ones

• The rhythm or structure of musical works

• Themes expressed by song lyrics

• Short musical phrases

• Arrangements of musical compositions, unless an arrangement of a musical composition really amounts to an alternate version of the composition, in which case the arrangement infringes the underlying composition unless it was written with the permission of the copyright owner in that composition (The exception to this is an arrangement of a public-domain song. Since you can use a public-domain composition any way you want, it's legal to make a detailed arrangement of such a song, and the arrangement is protectable. The same is true for any derivative work based on a public-domain work; the derivative work is protectable.)

• Social dance steps and simple routines, which are not copyrightable as choreographic works because they are the common property of the culture that enjoys them

• Uses of color, perspective, geometric shapes, and standard arrangements dictated by aesthetic convention in works of the visual arts (However, an artist's arrangement of these elements may be protectable expression.)

• Jewelry designs that merely mimic the structures of nature, such as a jeweled pin that accurately replicates the form of a honeybee

• Names of products, services, or businesses (However, these are protected under trademark law from use without permission on similar products or services.)

• Pseudonyms or professional or stage names (These may also be protected under trademark law or the law of unfair competition.)

• Mere variations on familiar symbols, emblems, or designs, such as typefaces, numerals, or punctuation symbols, and religious emblems or national symbols

• Information, research data, and bare historical facts (Although many compilations of such information or data and extended expressions based on historical facts are protectable by copyright.)

• Blank forms, such as account ledger page forms, diaries, address books, blank checks, restaurant checks, order forms, and the like (These record information rather than conveying it.)

• Measuring and computing devices like slide rules or tape measures, calendars, height and weight charts, sporting event schedules, and other assemblages of commonly available information that contain no original material

Utilitarian Aspects of Design

In addition, protection is specifically denied in the copyright statute to utilitarian elements of industrial design. Pictorial, graphic, and sculptural works are, of course, protectable, but only insofar as their forms, the mechanical or utilitarian aspects of such designs, are not protected. The reasoning behind this provision is that if such aspects of otherwise decorative objects are to be protected at all, they must meet the rigorous requirements for a utility patent.

The question of what features of utilitarian objects are protected by copyright is most prevalent in the case of objects that have little ornamentation and consist mostly of a simple design that is largely determined by the function of the object. For instance, in the case of a ceramic lamp base decorated with painted ferns, the fern design has nothing to do with the function of the base—that of elevating the bulb and shade of the lamp to a height sufficient to illuminate the area surrounding the lamp—and is protectable by copyright.

However, a cylindrical brass lamp base fixed to a square marble foundation would embody no elements that were not primarily functional and would be unprotectable under the copyright statute. If a marble caryatid were substituted for the lamp's cylindrical brass base, the sculpture of the draped female figure would be protectable because of its more decorative and less utilitarian nature, even though it would still serve to elevate the lamp's bulb and shade. This principle of copyright law is easier to remember if you consider the general rule of copyright that the more elaborate and unusual the expression embodied in the work, the more protection the work is given (provided, of course, that the work is not copied from any other work).

Functional Works

Similarly, courts treat functional works like recipes, rules for games and contests, architectural plans, and computer programs somewhat differently from works that have no inherent functional aspects. Although they are eligible for copyright protection, protection for functional works is somewhat narrower than for other sorts of works because the intended function of such a work dictates that certain standard information, symbols, etc., be included in the work and that certain protocols be followed for the ordering and presentation of the information such works contain.

For example, copyright in recipes is very limited. Copyright does not protect any list of ingredients, because such lists consist of information only and embody no protectable expression. A particular expression of recipe instructions may be protectable, at least from word-for-word copying, but probably only to the extent that the explanation of the steps in making the dish embodies expression that is not dictated by the necessary technique or inherent chemistry of the process. Courts have also held the view that very short explanations of concepts, such as game rules and recipes, are not copyrightable, because granting copyright in them would effectively prevent any other recounting of such rules or recipes.

Copyright in Real Life

All this has a practical application. It may be that anyone is free to use the beautiful new typeface design that you worked nights and weekends to perfect, even though you intended it to be used only in a hand-lettered story you wrote for your niece's birthday. Or that great new slogan that you came up with to advertise your company's product may soon be on everyone's lips, in contexts that don't help your sales for the quarter at all.

The good news is that if you design a poster calendar for your sporting goods company, you may copy from any other