What is a copyright? How long does a copyright last?

A copyright is the exclusive rights (including the right to copy, distribute and adapt the work) granted to an author or creator of an original work. These rights can be licensed, transferred and/or assigned, similar to that of a trademark. Copyright lasts for a certain period of time (which varies) after which the work will enter the public domain, unlike a trademark. Copyright applies to a wide range of works, including music, books, and other works.

What is considered fair use?

The point of copyright fair use is to allow the borrowing of very SMALL portion of a work, and usually citing your source. Stealing the complete work is 100% copyright infringement. The case precedents chosen below were of the most relevance. You can be SUED and held liable for copyright infringement.

 

 

Cases Laws and Legal Precendents

  • Not a fair use. A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication. Important contributing factors: The letters were unpublished and were the "backbone" of the biography--so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Ctir. 1987).)

  • Not a fair use. A company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who's Who and What's What, containing direct quotations and paraphrases from the television show "Twin Peaks" as well as detailed descriptions of plot, character and setting. Important contributing factors: The amount of the material taken was substantial and the publication adversely affected the potential market for authorized books about the program. (Twin Peaks v. Publications Int'l, Ltd. 996 F.2d 1366 (2d Cir. 1993).)

  • Fair use. A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Important contributing factors: No more than 1% of Wright's unpublished letters were copied and the purpose was informational. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)

2. Artwork, Art, Artist

  • Not a fair use. The artist, Jeff Koons, created a series of porcelain sculptures based upon a photograph of a man and woman holding puppies. Although certain aspects were exaggerated, the photo was copied in detail. Koons earned several hundred thousand dollars from sales of the sculptures. Important contributing factors: Although Koons claimed fair use under a parody theory - the sculptures were part of his 'banality' series - the court disagreed, claiming that the sculptures did not parody the work. The court also noted that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).) Jeff Koons was involved in a second case 13 years later in 2005.

  • Fair use. The same artist, Jeff Koons, used portions of a fashion photo - a woman's legs in Gucci sandals - in a painting, "Niagara." The painting included a montage of popular culture images spread over a Dali-like landscape. Important contributing factors: Unlike the "puppies case" (Rogers v. Koons, below) which was considered a slavish reproduction, the court viewed "Niagara" as a transformative use because it commented upon the use of fashion imagery in consumer culture. (Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).)

3. Photography, Photos, Broadcasts and Audiovisual Cases

  • Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Important contributing factors: The court felt that the portions taken were substantial and part of the "heart" of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)

  • Fair use. The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important contributing factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).) This case is is similar to the Charlie Chaplin case above.

  • Not a fair use. A television station’s news broadcast used 30 seconds from a four minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. Important contributing factors: The use was commercial, took the heart of the work and affected the copyright owner’s ability to market the video. ( Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)

  • Fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the "Kojak" television show) was accepted as a fair use. Evidence indicated that most viewers were "time-shifting" (taping in order to watch later) and not "library-building" (collecting the videos in order to build a video library). Important contributing factors: The Supreme Court reasoned that the "delayed" system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).) This case was essential to DVR's developing later on and the fact that 25 years later, recording a show to watch later has become a way of life. Digital Video Recorders, may not have been "legal" should the outcome of the Universal City Studios v. Sony Corp been found to have violated "Fair Use" laws.

3. Internet, Images, and Software Cases

  • Fair Use. A search engine's practice of creating small reproductions ("thumbnails") of images and placing them on its own website (known as "inlining") did not undermine the potential market for the sale or licensing of those images. Important contributing factors. The thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba-Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003). A second case was upheld again in a print format with the Grateful Dead case.

  • Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book. Important contributing factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. (Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).) This was again found to be upheld a THIRD Time in t

  • Fair use. A Google search engine's thumbnail display of photos from a subscription-only website (featuring nude models) was a fair use. Important contributing factors: The Ninth Circuit considered Google's use of thumbnails as "highly transformative" noting that a search engine transforms the image into a pointer directing a user to a source of information (versus the image's original purpose: entertainment, aesthetics, or information). This transformative use outweighs any commercial factors regarding Google's ability to earn money from placement of ads on the search results page. The court's reasoning -- that "a search engine provides an entirely new use for the original work," -- re-affirmed the principles established in the Ninth Circuit's decision in Kelly v. Arriba Soft, see below (Perfect 10, Inc. v. Amazon.com, Inc., No. 06-55405 (9th Cir. December 2007).)

  • Fair use. Displaying a cached website in search engine results is a fair use and not an infringement. A "cache" refers to the temporary storage of an archival copy - often a copy of an image of part or all of a website. With cached technology it is possible to search web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company's cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe. Important contributing factors: Google was considered passive in the activity - users chose whether to view the cached link. In addition, Google had an implied license to cache web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).)  

4. Music Cases, Music, Operas

  • Not a fair use. A nonprofit foundation presented a program called "Classic Arts Showcase," for broadcast principally to public television and cable channels. The foundation used an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, "Carnegie Hall." Important contributing factors: Although the court considered the use to be educational, noncommercial and to consist of an extremely small portion of the work, those factors were outweighed by the potential loss of licensing revenue. The copyright owners had previously licensed portions of the work for broadcast and the court determined that the foundation's use affected the potential market. (Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., 2005 U.S. Dist. LEXIS 26302 (S.D. N.Y. 2005).)

  • Not a fair use. Downloading of music songs is not a fair use. What has become common place in the digital word of cyberspace, has become an endless battle to combat music theft. A woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. The woman side argued that her actions were a fair use because she was downloading the songs to determine if she wanted to later buy them. Important contributing factors: Since numerous websites, such as iTunes permit listeners to sample and examine portions of songs without downloading. the court rejected this "sampling" defense. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).

  • Fair use. A person running for political office used 15 seconds of his opponent's campaign song in a political ad. Important contributing factors: A small portion of the song was used and the purpose was for purposes of political debate. (Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).)

5. Other Cases and Parody Cases

  • Fair use. The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song "Pretty Woman" ("Oh, pretty woman, walking down the street "). The rest of the lyrics and the music were different. Important contributing factors: The group's use was transformative and borrowed only a small portion of the "Pretty Woman" song. The 2 Live Crew version was essentially a different piece of music and the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher who did not want "Pretty Woman" used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

  • Not a fair use. An author mimicked the style of a Dr. Seuss book while re-telling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important contributing factors: The author's work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)

  • Fair use. A movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Important contributing factors: The movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)

Source: Stanford Copyright and Fair Use