Is copyright law curbing our freedom in the digital age?
As a media lawyer, I am frequently asked the following two questions by clients and students alike: “Is this copyrighted?” and “Can I use it?” The answers, which often bring surprised reactions, are almost always “Yes! and “Not without asking for permission.” Because of the widespread confusion about copyrights, what they are and what they protect, a basic understanding of copyright law is essential for not only student journalists, but for anyone working with content from the Internet for just about any purpose.
Copyright is a perplexing legal issue in the age of online publishing. Online culture thrives on “open source” software and paywall-free information sites – incredibly valuable material is freely available to be enjoyed and improved on. But copyright did not disappear with digital information-sharing – the law still very much applies, and those who ignore it can be slapped with takedown notices or even sued.
Roots of the law
Copyright law is old – really old. British King Henry VIII issued the first royal grant of printing privilege, the forerunner of copyright law, back in 1518. In our country, the framers of our Constitution believed protection for authors, inventors and other creators to be so important that they included it right in the U.S. Constitution. Article I, Section 8 of the Constitution states: “The Congress shall have 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.” What that means is simply that the Constitution gives Congress the right to pass copyright laws to protect authors and inventors.
Based on this constitutional language, Congress passed the first federal copyright law in 1790, and has since amended it on numerous occasions. Copyright law is contained in Title 17 of the United States Code. Despite the many refinements that it has undergone over the years, the essence of our copyright law has not changed all that much. U.S. copyright law is a form of protection for all “original works of authorship fixed in a tangible medium” of expression, including literary, dramatic, musical, artistic, and certain other intellectual works.1 There are only two requirements for copyright protection: (1) originality and (2) fixation in a tangible medium of expression.
Originality and fixation
Let’s break those requirements down. First, copyright protects only “original works of authorship.” What is original? The term “original” is not defined in the copyright law. Instead, Congress left it to the courts to come up with a sufficient definition. There have been many attempts. Judge Learned Hand defined original in Sheldon v. Metro-Goldwyn Pictures Corp.,2 as follows: “if by some magic a man who had never known it were to compose anew Keats’ Ode On a Grecian Urn, he would be an ‘author,’ and, if he copyrighted it, others might not copy that poem.” Other courts have explained that the work must owe its origin to the author. Thus, if two reporters for different publications write identical blog posts – without looking at, speaking about, or having any other knowledge of the other’s work – each will own the copyright in his own work.
The only other requirement for copyright to exist in a work is that it be “fixed in a tangible medium of expression.” Simply setting pen to paper – or clicking a camera shutter – is enough. Congress has defined this second requirement: “Fixed in a tangible medium of expression” means “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.”3
Under this broad standard of copyrightability, not only newspaper and magazine articles and books, but films, radio broadcasts, websites, advertisements, music, and art – almost everything created for the mass media is copyrighted. (And yes, this includes snapshots posted on Facebook.) Moreover, copyright protection applies whether or not the work is published – even unpublished works are protected.
Who owns the right?
Copyright protection exists from the moment the work is created in fixed form that is either perceptible directly or with the aid of a machine or device.4 The copyright in the work immediately becomes the property of the author/composer/artist who created it. In practice, that means that a writer owns the copyright in his manuscript as soon as he types the words on his computer (provided that those words are his own). A photographer owns the copyright in her photograph as soon as she takes that picture. A painter owns the copyright in his painting as soon as brush touches canvas. A musician owns the copyright in his score as soon as that score is recorded, either in writing or on audiotape. No paperwork needs to be filled out. The work is copyrighted upon creation. Only the author/creator or those deriving their rights through the author/creator can rightfully claim that copyright.5
The creator can, of course, transfer the copyright to another person or company. For example, freelancers often sell or transfer the rights in their work to publishers. Writers and photographers often relinquish their copyrights to book or magazine publishers. And employees working for companies do not individually own the copyrights in their work done on company time – their employers do.6
An owner’s rights
Copyright law gives the copyright owner six exclusive rights:
- the reproduction right
- the derivative work right
- the distribution right
- the performance right
- the display right and
- the digital transmission performance right7
Exclusivity is a meant to encourage authors and other creators to create new and original creations that the public can enjoy. These rights permit the copyright owner to financially profit from a creation. The premise of the law is that if these exclusive rights were to be weakened, there would be less financial incentive for authors to create original works.8 In fact, the U.S. Supreme Court has characterized copyright as “the engine of free expression” because it provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art and film that makes up our public discourse.9 (Of course, copyright’s critics insist that, far from the “engine” of free expression, copyright is an “emergency brake” on free expression because it locks up the ability to sequelize or otherwise adapt other people’s work for so many years – a book published today will be protected for at least the lifetime of the author plus 70 years.10)
The misunderstood fair use
“But, I’m using less than 20 words from the text, or less than 30 seconds of the song.” I often hear that plea for leniency from those wishing to use another’s copyrighted material in their own work. Sorry – just because it is less than 20 words or less than 30 seconds does not automatically give you a pass.
Because under traditional copyright law, the use of any copyrighted material for any reason is infringement, the law posed a huge obstacle for teachers, critics, scholars and others who regularly redistribute parts of copyrighted materials. Therefore, the courts have recognized that some copying may be acceptable under the doctrine of “fair use.” Fair use permits you, in certain limited circumstances, to do things that would otherwise have been illegal under copyright law.
Unfortunately, the fair use concept is woefully misapplied and misunderstood – “the most troublesome in the whole law of copyright,” as one court aptly stated.11
Section 107 of the Copyright Act of 1976 expressly recognizes the fair use defense to copyright infringement. Section 107 does not explicitly define “fair use” Rather, it lists “the factors to be considered” when determining whether the use of a work in a particular case is a defensible fair use. Those factors to be applied when making a fair use determination are:
- The purpose and character of the use (commercial versus nonprofit/educational);
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
In each case where copyrighted material is used without permission, it is up to the courts to determine whether that use constitutes an infringement or a fair use. Although fair use determines the amount of photocopying, software duplication and television videotaping permissible, the legal outcome depends almost exclusively on weighing subjective factors. The absence of precise standards leaves individual users to evaluate circumstances and to conclude for themselves whether they are within the law or at risk.12
Notwithstanding the imprecision in defining fair use, many uses of copyrighted material are routinely found to be fair use. For instance, when a professor photocopies a newspaper article to distribute and discuss with her class, the professor is more than likely protected by fair use. When a video editor uses clips from a movie in a television segment produced to comment on the year’s best movies, the use is likely to be protected. Criticism and commentary are more often than not protected by the fair use defense. For example, if you are writing a book review, fair use permits you to reproduce some of the book in that review. Similarly, parody – a work that ridicules another work – is also often found to be fair use. Judges recognize that by its nature, parody demands some taking from the original work.
Keeping up with technology
All laws, of course, must be flexible enough to adapt to changes in society and circumstances that could not have been anticipated when the laws were written. For copyright law, this has meant attempting to keep pace with the explosion of technology that has occurred in the 222 years since the first U.S. copyright law was passed. In 1790, there was no photography, radio, motion pictures, television, videotaping, photocopying, or, most significantly for copyrights, Internet.
As each new technological advance has placed stress on the copyright system to adapt, the courts have attempted to apply traditional copyright law to new and unforeseen problems. Thus, the legal standards for infringement that have been applied to books, newspapers and magazines have similarly been applied to copyrighted material on the Web. Some commentators believe that this is working; others believe that legal reforms are needed.
Because, as we have seen, all that is needed for copyright to exist is originality and fixation, virtually everything accessible through the Internet is copyrighted, from websites to blogs, email messages and video games. Digital or electronic content, including graphics, photographs, and electronic databases are subject to the same protection under the copyright laws as non-electronic traditional works.
However, the Internet is far different than previous forms of media that have tested our copyright laws. The problem created by the Internet, as Harvard Law professor Lawrence Lessig aptly states, is that the Internet “makes possible the efficient spread of content” that “does not respect the traditional lines of copyright. … The network doesn’t discriminate between the sharing of copyrighted and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will ‘rob the author of the profit.’”13 Professor Lessig continues: “The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their ‘property’ against this ‘piracy.’ A generation of Americans, the warriors warn, is being raised to believe that ‘property’ should be ‘free.’”14 In other words, many Internet users simply do not believe that other people’s works on the Internet are protected by copyright.
Because the Internet provides a simple, inexpensive way to create instant and perfect copies of text, sound and images, professional creators of content have panicked – arguing that even more stringent copyright laws are needed to protect their original creations from unauthorized use. The movie and music industries have, for example, lobbied lawmakers and succeeded in lengthening the length of copyrights. In 1998, an amendment to the copyright law called the Digital Millennium Copyright Act added 20 years of protection to copyrighted works.15
On the other hand, there are observers who argue that strengthening the copyright laws in response to the growing free use of content on the Internet is the wrong way to go. These protestors, often called the “free culture movement” or “Copy Left,” believe that there should be relaxed copyright restrictions for the use of content on the Internet. “They stress that borrowing and collaboration are essential components of all creation and caution against being seduced by the romantic myth of ‘the author’: the lone garret-dwelling poet, creating masterpieces out of thin air. ‘No one writes from nothing,’” says Yale Law School professor Yochai Benkler. “‘We all take the world as it is and use it, remix it.’”16
Nowhere has the battle been fiercer than in the sharing of online music. File sharing, or the ability to move files from one computer to another without either paying the copyright owner or getting the copyright owner’s consent, has created unforeseen problems. In the late 1990’s, file sharing services such as Napster and Grokster began to facilitate the free transfer of copyrighted music, giving people access to recorded music without buying a CD. The copyright owners (in this case, the music companies) sued both the file sharing services and individuals who used those services. This, as we all know, led to time consuming, expensive lawsuits and a lot of bad publicity for the record companies – but did not stop the practice of downloading music.
The film and television industries have faced similar problems. Illegal downloading is blamed for billions of dollars in lost sales in those industries. The music, film and television industries have attempted to combat the piracy by turning to the courts and traditional copyright laws, with varying degrees of success. Although downloading songs without payment has been found to be copyright infringement and not fair use by multiple courts – and despite lawsuits and other attempts to inhibit peer-to-peer file sharing providers – according to the Electronic Frontier Foundation, “file sharing is more popular than ever.”17
How best to balance the concerns of creators about losing their original works on the Internet against the concerns of those “free culture” or “Copy Left” advocates who believe that copyright laws need to be adapted to the digital age? There is, today, no clear answer. For now, what is clear is that, as it stands today, anyone who violates the exclusive rights of a copyright owner, no matter what form that content may be in, can be liable for infringement under the copyright law.18
All of this leads to a message of caution. The use of any content from the Internet – whether making identical copies, reworking, incorporating parts of a work into a newly created work, or even cutting, pasting, and recombining parts of video games, movies, or sound recordings – should be approached warily. Don’t panic and stop creating, innovating and mixing old ideas to create new ones. But, in the process of creating and innovating, if you do use copyright protected content without the creator’s permission, keep in mind the following guidelines to protect yourself and your work in the digital world:
Almost all content found on the Internet is protected, whether or not the content appears with a copyright notice. Just because a work is publicly available on the Internet does not mean that it is in the “public domain,” i.e., available for free use by all.
Any use of that content – reproduction, copying, creation of a derivative work, distribution, sale, performance – without permission from the copyright owner may subject you to liability.
There is no magic number of words, seconds of a song, or parts of another type of work that can be used without liability. Fair use is always judged on a case-by-case basis.
Simply crediting the source will not protect you if you are sued by the copyright owner for infringement. Credit is not the same thing as consent.
Most importantly, when in doubt, ask permission. If the copyright holder is not listed on the work, locating the appropriate person or entity to grant permission may take some work. The Copyright Office of the Library of Congress may be of assistance in locating a copyright owner.19
Attorney Carolyn Schurr Levin, a lecturer at Stony Brook University School of Journalism and LIU Post School of Visual and Performing Arts, is a former vice president and general counsel at Newsday and a veteran college newspaper adviser.
1 See www.copyright.gov.
2 81 F.2d 49, 54 (2d Cir. 1936).
3 See 17 U.S.C. §102(a).
4 See 17 U.S.C. § 102(a).
6 Work created in the course of salaried employment belongs to the employer as a “work made for hire.” But note that the employment must be salaried, not just some token payment, and the relationship must be truly “employment,” not just a contractor relationship. See Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
8 Nimmer, Marcus, Myers and Nimmer, Cases and Materials on Copyright (Lexis Nexis, 8th ed., 2012) at 30.
9 Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 558 (1985).
10 The SPLC’s Copyright Duration Calculator, http://www.splc.org/virtual_lawyer/copyright_71112.asp, can help you figure out when the copyright is scheduled to lapse on a creative work.
11 Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2nd Cir. 1939).
12 Kenneth Crews, Copyright, Fair Use and the Challenge for Universities (Univ. of Chicago Press, 1993) at 2.
13 Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Press, 2004) at 17-18.
14 Id. at 18.
15 Pub. L. No. 105-304, 112 Stat. 2860 (1998).
16 Robert S. Boynton, The Tyranny of Copyright, New York Times Magazine, (Jan. 25, 2004) at 42.
18 17 U.S.C. § 101 et seq.
Fall 2012, reports