When Copying Is OK

You may copy some images, some of the time. And other people may copy some of your images, some of the time. Find out when and why.

by Mary E. Carter

Now that you know the basics of your copyrights, which were outlined in my first column, you need to know when there are legal exceptions to copying. It's easy in principle, but, as with other situations in the law, these waters can get very murky, very quickly. So let's consider when copying is OK. We'll take it step by step and wade into the depths a little bit at a time. Got your snorkel? Take a deep breath and tread this way please!

• An exception to the rule: What is fair use? And are there any other exceptions to the copyright law?
• Works you MAY copy: Are there any situations or circumstances in which copyright protection does not apply?
• So what, exactly, IS fair use? And how does it apply to people copying my work and to my copying the works of others?
• Real-life examples: What are some examples of the fair-use exception?
• Does NOT apply: Are there clear-cut instances when the fair-use exception would NOT apply?
• Sliding the slippery slope: How can I possibly tame this slippery fair-use creature?
• Fair use or laziness? Is your use fair use? Or just plain laziness?
• What's the use? How can I protect my copyrights on my Web site?
   

What is fair use?

And are there any other exceptions to the copyright law?

There are two sorts of circumstances for which copying is OK. The first involves things that either lack or have lost copyright protection, such as creations in the public domain, ideas, and facts. The second involves things that are covered by copyright but for which some instances of copying are allowable because of the Copyright Act's "fair use" exception. First, the relatively straightforward bits.

When copyright protection does not apply

The following are situations and examples of works that you may copy and use in your own work:

Creations in the public domain. Work in the public domain isn't protected by copyright. Anyone who wants to use it may do so freely, without asking for permission or paying a license fee. And the world is full of public-domain material. But sometimes it's not so easy to figure out what is in the public domain. Most public-domain material got there because it's old. There's just this teensy complication that you must comprehend when you're trying to decide whether a given work is in the public domain: Two different copyright acts apply! No problem! This IS the law you know!

The first, usually called the 1909 Act, covers material created before Jan. 1, 1978. That's when the second, called the 1976 Act (because that's when it was enacted), took over. Follow? Plug that snorkel firmly in and let's step out even further.

• Situation One: Under the 1909 Act, a creator could obtain copyright protection for 28 years after publication and could then renew the copyright for a second 28-year term. So, if the second term expired before the 1976 Act took effect, the work is in the public domain. That means anything published first in this country before Jan. 1, 1922, is in the public domain.
• Situation Two: For works that were created under the 1909 Act and that were in their first or second 28-year term of copyright on Jan. 1, 1978, the 1976 Act extends the copyright to a maximum total of 75 years from publication. So if you know a work was published more than 75 years ago, you can pretty well be sure that it's public-domain material.
• Situation Three: For work created on or after Jan. 1, 1978, the duration of the copyright  is the life of the author plus 50 years (or 75 years for anonymous, pseudonymous, or work-made-for-hire works). It'll be a while before anything created recently will fall into the public domain because of an expired  copyright. But…

You knew there was a "but" in there somewhere… That gorgeous face of King Tut that you want to use in your next Photoshop project--isn't it OK because it's in the public domain? I mean, we're talking thousands of years since it's been copyrighted. Right? Er...maybe. More realistically, that image was probably the result of a photographer taking a photo of King Tut. And that photographer DOES have her copyrights in the photograph of Tut that she took. After all, she did the lighting, set up the shot, not to mention paying her own way to Alexandria and obtaining permission to do her photograph. Clearly, her photograph IS copyrighted material and NOT public-domain material. So be careful of what the source is of that potentially public-domain image.

You still with me?

Now, are there any more situations or circumstances in which copyright protection does not apply? Yes, there are.

• Ideas. Copyright protects expression of ideas, not ideas. For instance: The idea of people having a picnic on the grass is not copyrightable. Your specific execution of this idea--in which you turn your idea into something in a fixed and tangible form--is copyrightable.
• Facts. While facts are not copyrightable, certain arrangements or interpretations of fact may be copyrighted. For instance, a list of names compiled in the white pages of the phone book is not copyrightable. But if the names were compiled using a specific formula or proprietary system of arrangement, then the names could be copyrighted.
• Tiny parts of existing images. This is referred to as the de minimis doctrine and it allows for the copying of very small or insignificant portions of existing works. Now, on the face of it, this would seem to be the "out" you need to use just a tiny portion of a scanned image, for instance, in a photomontage. But the de minimis doctrine is not as clear as it seems. Adjust that snorkel, deep waters ahead.
   

What if the small portion of the image you copy is the very essence of the copied work? Then, a court might reasonably find that you have copied too much. Be very cautious when you decide that your copy is OK because it falls under de minimis standards. When in doubt, call a copyright attorney before you use the copy.

And here is yet another exception to copyrights, the last one before we approach the Titanic of the fair-use exception:

• Images that merge a concept with an execution.

This exception to copyright protection is called the merger doctrine. It is in effect where a concept and its execution are inextricably merged. For instance: Two-point perspective, as a drawing technique, is a concept that will be expressed the same no matter who executes it. The execution will always have a horizontal line with two vanishing points, and objects in the front will converge on the vanishing points at the horizon line. Thus, the concept is said to be "merged" with the execution, and no one can copyright any form of the execution of two-point perspective, even allowing for executions in different media.

So what, exactly, is Fair Use?

And how does fair use apply to people copying my work and to my copying the works of others?

Although the purpose of the copyright statutes is to encourage creativity by defining and protecting copyrights, there are certain times when other rights must override the rights of the artist. Generally, these "fair-use" exceptions were intended to protect freedom of speech (for example, by allowing book critics to quote from the book they are discussing) or to promote some sort of public benefit such as education.

Here, for the record, is the statutory language about fair use found in Section 107 of the Copyright Act (Don't glaze over. Read it the way you'd analyze a scene before drawing it. Look at all of the different elements in it):

Notwithstanding the provisions of section 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include-- 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copy righted work.

When a copyright infringement case goes before a judge, and the defendant claims her image comes under the fair-use exemption, the allegedly infringing image is evaluated through the lens of the stated purposes and all four factors listed above in the statute.

Using these four factors to determine whether or not a usage falls under fair use is by no means a cut-and-dried process, particularly because the language of the law itself does not make it clear just how to weigh the four factors. Courts apply them in different ways, because no two cases are identical. That means anyone who relies on fair use faces a real risk that it won't work.

It can be useful, in the right circumstances, but you have to look at all the facts, and know something about how courts have used those facts, before you can feel secure. There may be many mitigating circumstances for the copying. Or there may be none. Or there may be conflicting aspects of a case, as when one of the four factors mitigates the usage, two factors weigh in strongly against the copying, and the last one is too ambiguous to decide. The answer will always depend on an objective analysis, not wishful thinking.

Let's start by looking at the purposes described in the introductory paragraph, purposes "such as criticism, comment, news reporting, teaching, scholarship, or research." A lawyer would read that list to mean that not only the purposes actually named, but others like them, would support a judge's decision that a use was fair use.

The common thread among these uses is that the material claimed for fair use is what the would-be fair user is writing or drawing about. It's necessary--or at least important--to illustrate or illuminate or to support the work in which it's being used.  Now let's look in more detail at how the four determining factors listed above might be considered in individual cases of alleged infringement:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
   
   The key word here is "commercial." If someone used someone else's copyrighted image in a corporation's annual report, that person will have a more difficult time claiming a fair-use exception than someone who used the same image in a free classroom reader.
    
2. The nature of the copyrighted work. Generally, the courts have tended to be more permissive toward copying of factual works than of works of fiction and more permissive toward copying of published works than of unpublished works. An example of how the nature of a copyrighted work would be examined by a court could go like this: An image might be very generic as in the case of a photograph of the view of San Francisco from the 25th floor of a downtown building, facing north. Could a judge, acting as reasonable observer, see that this photo was taken by a particular photographer? Could a judge determine that this photo was copied by just looking at it? Could the judge decide, more probably than not, that the photo was not one taken by another photographer from, perhaps, the building next door?
    
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
   
   The more of a copyrighted work you've lifted, the lower your chance of claiming a fair-use exception. But the issue is not just one of quantity. Based on court decisions, the taking of even a small amount--if it is considered the "heart" of the work--can lead to a finding of infringement.
    
4. The effect of the use upon the potential market for or value of the copyrighted work.
   
   This is often the most important of the four factors. If your use of someone's copyrighted work has cut into the author's ability to earn money from that work, you almost certainly won't be able to establish fair use. For instance: Let's say an artist created a sculpture from another artist's photograph. The derivative sculpture sells for a lot of money. It may not have hurt the market for sales of the photograph; in fact, it may have increased the market for the photograph. But it severely hurt the photographer's chances of licensing sculpture rights to any other sculptor. And that's enough to defeat a claim of fair use by the infringing sculptor. 

What are some real-life examples of the fair-use exception?

Because what constitutes a fair-use exception is a murky area of the copyright law, this is not an area where you want to take any chances. I had hoped to be able to make a nice neat list of examples where fair use is probably in play and to list equally clear-cut examples of where it is not. But the lists will, of necessity, be anything but comprehensive, because a court has to review each case of fair use individually, on its merits.

That said, the fair-use exemption is more likely to apply when the copy:

• Is used for nonprofit educational purposes.
• Is a parody of another work.
• Is used for critical purposes such as in a newspaper review of a work of art.
• Is used in a work of scholarship.
• Is the very subject of something you're commenting on in your work.
• Is strictly for your own personal use and does not affect the income of the original creator.
• Does not contain the very "essence" of the original image.

Are there clear-cut instances
where the fair-use exception would NOT apply?

Clear-cut, not necessarily. But the fair-use exception would probably not apply in cases where your copy:

• Was used in a parody of the original that did not refer to the original in broad enough terms to be understood by the court.
• Was used in an advertisement or commercial, or in promotional copy.
• Was a complete copy of the work, or used the key elements of the work, rather than being a copy of a small portion of the work.

How can I possibly tame this slippery fair-use creature?

The fair-use exception to copyright law defies unambiguous descriptions. With this in mind, here is a simple guideline that may keep you out of the murky netherworlds of infringement and out of the tidal waves of copyright attorneys' caseloads!

1. When you are about to make a copy, a strident annoying bell should go off in your head. You should heed this as a warning that you need to think clearly and objectively about what you are about to copy. Put yourself in the place of the person whose work you want to copy; how would she feel about what you want to do?
2. Never assume your use falls under the fair-use exception by talking yourself into the fair-use excuse! Do not rationalize your usage. When in doubt about copying part or all of another person's image, call for help. Get the advice of a copyright attorney (not the friendly artist in the live-work space next door), before you use someone else's work in your work.
3. When an attorney advises you to seek permission to copy someone's image, contact the person directly to ask for that permission. Remember: You will need to obtain written permission before you may use the copy. Not after you have placed the image on your Web site for a couple of months and been contacted by a steaming, red-faced, and otherwise indisposed artist who wants his image off your site and off right now and off with your head, to boot! You're more likely to obtain permission to use an artist's image before you have infringed upon his copyrights.

Is your use fair use? Or just plain laziness?

Wherein the author mounts her soap box and beseeches the audience to "do their own thing" and forget about copying images on the Web just because it's easy.

Hey, all you gotta do is click and copy. So what's the big deal?

Too many artists cop to fair use. But I say, watch it, Buster! It may be fractious to say, "Hey, dream up your own images. Leave my images alone." So be it. You do not need to copy someone else's image, even to use as leavening for your own creative work. Use it for inspiration. That's OK. That's been going on for centuries. But to scan-and-manipulate what belongs to someone else? Not good for your karma.

Before you copy anyone else's art, you should consider your own motives. The artist's proud tradition of "rule breaking," at least in contemporary 19th and 20th century art, has also contained within it a stubborn tradition of individualism. Artists have struggled, with a truculent tenacity, to be utterly and completely different from anyone or anything that came before them. The Impressionists daubed at the formalism of the Academy. The Fauves upped the ante. The Action Painters threw paint all over the place. And so on.

What feels different in this digital era is that artists are now appropriating elements of other artists' images, altering them digitally, and presenting the results as genuine and sincere creative explorations. But I fear they are doing this just because it is easy to do so. As image-makers, these artists create nothing but a pastiche of the minds of other creators. This copying, this risky gray area of copyrights and fair use, is only a fad. Once artists get back to true individualism, wherein they create their own visual statements, then there will not be so much focus on copyrights on the Web. When artists re-discover the path of rule-breaking, they will also be too proud to even consider using anyone else's images in their own creations.

End rant.

So what's the use?
How can I protect my copyrights on my Web site?

Placing your copyright notice on your Web site is a start to protecting your copyrights on-line. Read some of the copyright notices on the Web sites of newspapers and other mainstream content providers for inspiration on how to word your notice. I generally recommend the simpler-is-better approach. Just place the "circle c" ©, or even just (C), and your name and the year of execution on the first page of your site and leave it at that.

But understand the possible hazards to your copyrights. If it's not a Common Internet Scofflaw, it'll be a crafty Mr./Ms. Fair Use Abuser or even Mr. Johnny Hey-Man-I-Just-Didn't-Know who'll find any excuse for copying and using your copyrighted images. That well-worded copyright line can only go so far to protect your rights.

See Copyrights, Part III

Web resources

Now that you're swimming freely in copyright waters, read about fair use and other copyright issues and start to form your own views on the subject.

Leading the electronic pack is the Electronic Frontier Foundation . This informative site offers sometimes alternative views on copyrights and other Internet issues. Just key in "copyrights" on the site's internal search engine for references to interesting reading.

There's just one reason to look at this concise little site and that you will find in red type. Read it!

I am almost diametrically opposed to anything John Perry Barlow has to say about copyrights on the Internet, but you gotta give him this: He's a riveting, if not circuitous, writer. And his own best promotion man. Advanced studies in copyright conundrums for the very intrepid.

About the author

Mary E. Carter used to operate under the domain name of chickenlady.com, providing information and items of interest to the backyard chicken enthusiast. That is, until people started sending her emergency e-mails such as: "What should I do now that my hen is lying here in a pool of blood, flapping and in extremis?" No, it simply would not do. Now. Carter has eschewed all things digital and is painting--applying acrylic pigment onto stretched canvas--and writing plain English articles about copyright for the occasional interested party.

She is the author of Electronic Highway Robbery: An Artist's Guide to Copyrights in the Digital Era published by Peachpit Press and her book may be purchased, this very minute.

You can e-mail her or visit her Web site

Illustration: Angel and devil on shoulder by Richard Cook, Business Relations, Artville
 

Copyright
Series

Part I - Intro

Part II - copying

Part III - Protecting yourself