Who Put The “Copy” In Copyright?

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At 3:00pm on 3/22/2018, I presented Who Put The “Copy” In Copyright?, and Co-Presented with Carla Osborne, at the 2018 North Carolina Computer Instruction Association Conference in At Asheville-Buncomb Technical Community College in Asheville, NC.

Who Put The “Copy” In Copyright?

In our presentation, we discussed the history of copyright as well as current methods, issues, and solutions for teachers. Along the way we answered a fair amount of hefty questions, and afterward we had a nice question and answer session with recipients.

A Quick History of Copyright

  • Gutenburg Press and Angry Monks
  • 1710 Copyright Act: The Statute of Anne
  • 1790 First Copyright Law: Article 1 of the US Constitution
  • 1976 The Copyright Act: What we know today
  • DMCA: Digital Millennium Copyright Act

There are three types of formalities when it comes to Federal Copyright law: notice, deposit, and registration. Deposit and registration are the things that give copyright owners the ability to enforce a copyright in court. Notice is important because people erroneously think the absence of a copyright mark is the absence of ownership, therefore copyright protections would not apply.

If a work was published before 1978 (when the 1976 Copyright Act took effect) the work was subject to common law and federal copyright protection. This meant that if the work was required to have a copyright notice affixed if they were published. Unpublished work was protected by common law and if the work was published without “proper” copyright protection, that meant the work entered public domain. In short, there were a lot of formalities that could be misunderstood or misused.

Why Is Copyright Important?

More importantly:
Why do we have to learn about this stuff?

But your honor, if you take away our right to steal ideas, where are they gonna come from?

Foster Ideas While Protecting Your Rights

  • Knowing about copyright helps you know your rights,
  • What material is available to you,
  • How to credit writers, photographers and other artists,
  • How to be ethically responsible,
  • How not to infringe on existing copyright. Not knowing copyright laws and restrictions doesn’t absolve you from breaking the law.

How Copyright Might Affect You

Things that determine whether or not you can copyright a work

1.Eligibility (Is your work eligible for copyright in the first place?)

2.Fixation (Not in a perverted sense — Is the work tangible?)

3.Human Authorship (Really, it has to be created by a human. No joke)

4.Copyrightable Subject Matter (Copyrightable material has to fall into one of several categories)

5.The Originality Requirement (Originality is “the bedrock principle of copyright”)

6.Independent Creation (No copy cats!)

7.Creativity (Which should go without saying)

What Is Taken Into Account

  • They do not consider the potential for income, whether the work is a novelty, aesthetic or artistic values, symbolism, or the look and feel of a work.
  • “Authorship” is the term used to describe material considered for copyright, even if the work isn’t written. Authorship is established by considering if a work is original and if it’s tangible.
  • It’s easy to determine if something is fixed or tangible. It’s harder to determine if something is original.
  • If you have a cool idea, but you don’t create something tangible, you can’t copyright that idea.
  • Conversely If you do create something tangible that conveys your idea and someone says, “Hey! I had that idea!” they’re cannot claim copyright.
  • Fixation determines if and when copyright is established. Is it possible for two or more very similar ideas to be created by different designers? Of course, but first it must be established whether or not these ideas are truly original.
  • If they are, then the moment they were created is when they become copyright protected

12 Things You Cannot Copyright

1.Works that have not been fixed: a work communicated solely through conversation that has not been filmed, recorded, written, or transcribed.

2.Works that lack human authorship (We weren’t kidding about this.): paintings done by cute kittens for an SPCA fundraiser. Another example is reducing or enlarging the size of an existing piece of art using a machine or mechanical means (because the robots aren’t human and haven’t taken over. Yet.)

3.Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: This is a biggie. Just because you have a great idea doesn’t mean that idea is protected while it’s still rolling around in your noggin. Make it tangible if you want it copyright protected as intellectual property.

4.Facts: Since they aren’t generated by human authorship. The jury is still out on facts by animals. However, if you (not your dog) write a book using facts or about facts, that work is copyrightable.

5.Wait for it…. Typeface and Mere Variations of Typographic Ornamentation: Yes, the use of “mere” is slightly insulting, since designers appreciate well-designed type, but copyright doesn’t cover typefaces or calligraphy. But, if you create a pictorial work or graphic work using calligraphy that is sufficiently original, it may be eligible for copyright protection.

a)Format and Layout: Verbatim, from the Compendium of the U.S. Copyright Office Practices, Third Edition 3 (E):

  1. As a general rule, the U.S. Copyright Office does not accept vague claims of “format” and/or “layout.” The general layout or format of a book, a page, a slide presentation, a website, a webpage, a poster, a form, or the like, is not copyrightable because it is a template of expression. These terms should be avoided and, if used, will be questioned by the registration specialist.

    But, wait. Sometimes there are exceptions:

b)Copyright protection may be available for the selection, coordination, and/or arrangement of specific content, such as a compilation of artwork or a compilation of text, provided that the content is arranged in a sufficiently creative manner. However, the claim would be limited to the selection, coordination, and/or arrangement of that specific content, and it would not apply to the format and layout itself.

6.Mere Copies: There’s that word again. But in this case it applies. If it’s a copy, it’s not original, which defeats the point of copyright protection. Examples include photocopies and scans of photographs or exact copies of artwork.

7.De Minimis Authorship: This just seemed like a fun term, so we threw it in there. The term roughly translates to “the law does not take notice of very small or trifling matters.” The short version is, “This is not original enough to be worth the trouble.”  Examples include touching up an old photograph in Photoshop without adding noticeable artistic touches, or using a public domain photograph to make one of those inspirational posters that were big in Stephen Covey’s heyday. Ironically a parody of such a poster would be protected under copyright.

8.Words and short phrases: You can’t copyright a name of a person or business, slogan, title, domain name, or the name of a product of service, not matter how cool or outlandish it is.

9.Familiar Symbols and Designs: Among other things, “Well-known and commonly used symbols that contain a de minimis amount of expression or that are in the public domain, such as the peace symbol, gender symbols (♀ ♂), the symbols for “play, pause, stop, forward, back,” simple emoticons such as the typical smiley face (☺), or the like. This is something to keep in mind when you’re creating social media campaigns.

10.Mere Variations of Coloring: There’s that word again! Making something a different color isn’t going to make it original enough to qualify for copyright protection.

11.Government Works: There are some exceptions, but if a work is created for the U.S. Government, it cannot be copyrighted. However, this doesn’t mean that if you use a government work you shouldn’t cite the source. Copyright and credit are two different things.

12.Works in the Public Domain: Works can be in the Public Domain for a variety of reasons (lack of registration, expired registration) but they may not be copyrighted. However, a derivative work containing public domain material may be registered if it contains a sufficient amount of original authorship. What qualifies as “derivative work”? We’re glad you asked. That will be covered shortly.

Your Intellectual Property

Your work is considered, by law, copyright protected from the instant it is fixed, or tangible, if it’s eligible for copyright. While that sounds easy enough, proving that in court is an entirely different matter. There are some things you can do to protect yourself and your work:

1.Always include copyright information on your work, including sketches, with the following:

Copyright/Copr./© + first date of publication + name of the copyright owner
For example, © 2017 Your Name

2.Keep good records, both in digital and paper form.

3.Register your copyright with the Copyright Office either online or by filing a paper application. This is the method that puts the burden of proof on the infringer, should a copyright be legally contested.

Your work is considered, by law, copyright protected from the instant it is fixed, or tangible, if it’s eligible for copyright. While that sounds easy enough, proving that in court is an entirely different matter. There are some things you can do to protect yourself and your work:

Develop workflow habits, such as using the metadata options in Adobe Photoshop and Bridge, to add copyright information. Integrate copyright into project management.

OPP — Other People’s (Intellectual) Property

If you do not see a copyright listed with a photo or illustration, that doesn’t mean it is free to use.

It’s your responsibility to make sure you are not using copyrighted works without the permission of the copyright holder.

Fair Use And How To Play Nice

The concept of Fair Use is not to circumvent copyright requirements, but to allow use of copyrighted works for educational and informational purposes. Be warned that Fair Use isn’t carte blanc. You have to consider four components when deciding whether an image or graphic falls under the copyright exception of Fair Use:

 

1.the Purpose and Character of the use; including whether such use is of a commercial nature of 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 copyrighted work.

 

The questions are posed in sequential order. All four factors must be weighed in your decision of whether or not to consider use of copyrighted material.

Leibovitz v. Paramount Pictures Corp.

Vanity Fair cover using Leibovitz’s photograph of Moore is on the left. On the right, Nielsen’s head is superimposed over the body of a model hired by Paramount. Leibovitz sued because she felt it diminshed her work and her hirability because people might think she supported the movie and worked on its active marketing. Judges ruled that no one would seriously think that this was male actor Leslie Nielsen, and the case was thrown out.

The Barack Obama “Hope” poster is an image of Barack Obama designed by artist Shepard Fairey. On February 29, 2012, Fairey pleaded guilty in a New York federal court to destroying and fabricating documents during his legal battle with the Associated Press.

Sources You Can Use

If you post it, they will come (and download it).

How can you find images that don’t infringe on copyright?

  • A good place to start is Creative Commons, which was created in the spirit of creative collaboration.
  • You may also go straight to the source and ask the copyright holder for permission to use, which may include a request for payment to do so.
  • Public domain sources offer a surprising number of high quality images and graphics.

If you choose to purchase images through a stock website, read the fine print. Royalty free doesn’t mean no strings attached, more likely you’re purchasing a limited license to use that image. Some stock photography sites limit the use to certain mediums, while others will not allow more than a specified number of copies to be made.

A Word About Type

AIGA Professional Practices in Design gives the following advice:

  • Make sure you have the license to use fonts.
  • If you want to use a font that isn’t installed on your computer, you must ensure that you have a license to install the font, or else acquire a license to do so.
  • Contact the type foundry or supplier of the font if you have questions.
  • Don’t lend or give a font to others to use.

Giving Credit Where Credit Is Due

Unless it is expressly stated that no attribution is needed, you should always credit the creator of any work you use. The credit should be given in such a way that it’s reasonably easy to read. If you’re not sure about how the credit should read, double check with the copyright holder.

Creative Commons has a tiered licensing system and detailed instructions on how to credit work.

Licenses From Least Restricitve to Most Restrictive

  Attribution CC BY

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation.

  Attribution-ShareAlike  CC BY-SA

This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms.

  Attribution-NoDerivs CC BY-ND

This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

  Attribution-NonCommercial  CC BY-NC

This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

  Attribution-NonCommercial-ShareAlike CC BY-NC-SA

This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.

  Attribution-NonCommercial-NoDerivs  CC BY-NC-ND

This license is the most restrictive of the six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.

 

Infringement Happens. What’s A Teacher To Do?

Often infringement is born out of ignorance, not malice. That doesn’t excuse misuse, unauthorized use, or misappropriation. Regardless of intent, infringement constitutes plagiarism

Infringement Happens. What’s A Student To Do?

If you are suffering from copyright infringement, what’s the best course of action? There’s no quick and easy answer to that question.

It’s dependent on how well you’ve documented your work and whether or not you have registered, or are in the process of registering, your work with the Copyright Office. But make no mistake, if your work is in tangible form, your work is considered copyrighted.

Ask Permission, Not Forgiveness

It’s pretty much that simple.

If you seek permission and adhere to copyright guidelines, you’ll be in compliance. It’s much better to ask permission than forgiveness.

Sources To Explore

Copyright Law in a Nutshell, Mary LaFrance

Copyright.gov: Compendium: Chapter 300.

https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

2016 USCA National Distance Learning Week Virtual Conference, Tucker Taylor, Head of Circulation at Thomas Cooper Library, University of South Carolina, Aiken.

The Graphic Artists Guild Handbook: Pricing and Ethical Guidelines, 14th edition

The Copyright Book: A Practical Guide, Sixth Edition, William Strong

AIGA Professional Practices in Graphic Design

https://creativecommons.org/licenses/

https://en.wikipedia.org/wiki/Statute_of_Anne#cite_note-citation-1

The act is numbered as 8 Ann. c. 21 in The Statutes of the Realm (published 1810–25), based on the original Parliament Rolls; but as 8 Ann. c. 19 in Ruffhead‘s Statutes at Large (published 1763–65; and later editions), based on the copies of acts enrolled in Chancery. Both forms of citation are acceptable, and both are found in reputable secondary sources.

SafeAssign and other tools

What do you use to monitor copyright compliance? SafeAssign is a fine way of ensuring that materials are original- at least as much as can be. In some cases, a single student may copy their material from an internet source without quoting, and then we may find that numerous others would then copy off their paper, there are ways in which several students can cheat without all of them being caught.

Another University Issue

NC State was once found to be among the largest institutions with Video downloads from the internet. As a result of being outed, the school came up with a larger, more clear copyright statement on the footer on their web pages. While we’d all rather see this say “CAN I use copyrighted material” rather than “HOW CAN I use copyrighted material”, they’ve done a great job here.

Questions?

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