Weblog of Wesley Fryer

by Maria Sanders,
J.D.
TxDLA
2005

Have served as in-house legal
counsel for
- is a licensed attorney in
state of Illinois, copyright law is federal however, this is her area of
expertise and she loves this!

will
try to eliminate some ambiguity in today’s
session

When copyright statute was
brought into law, they said they were trying to encourage creativity, so they
don’t want copyright law to be implemented rigidly in the
classroom
- in some cases educators don’t
know the law
- in other cases educators
know the law and it isn’t giving them the
answer

All attention today going to
TEACH act
- I am not real thrilled with
TEACH act
- what they were hoping is they
would say what you can do F2F you can do
online
- I am focusing on FAIR
USE

TEACH
ACT
- if you are dealing with digitally
transmitted content like an online course, you can never justify showing an
entire video under the teach act (never use section 110 in statute for
this)
- did not address supplementary
materials, not covered by TEACH act
- you
can actually do more than what is listed there in section
110

FAIR USE is messier, but broader
and more comprehensive

3 basic
questions to avoid copyright infringement
-
if any of these answers are NO, then you are good to use
it

1. Is the content protected by
copyright law?
- patent and trademark law
is very different
- patent law could cover
ideas, but copyright law doesn’t

2.
Do you have permission to use the
content?
- contract law trumps copyright
law
- your license is the governming
document

Fair Use is about when
someone says you can’t use this, but you actually can do it
legally
- often the copyright owner is
saying you have to own this
- Fair use is
by far the most widely used affirmative
defense

Protected by
copyright?
1-
scope
2- duration (just cause something is
protected, it doesn’t go to infinity) – trademark law can go on forever if you
protect it
3- exclusive rights (how are you
looking to use it, is the right exclusive to the copyright
owner

SCOPE
-
type of material
- copyright protects
“original works of authorship fixed in any tangible medeium of
expression”
- originality (Feist case)
defined as “origin in the author with a minimum level of
creativity”
- FIXATION is defined in the
statute: “embodiement, 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 a transitory
durationi”

operationally, “fixed”
means you can carry it into court or present it on the court
wall

what about a live presentation
(unless it is being recorded)– it is not
fixed
- if I don’t know it is being
recorded (the tape recorder)
- if you have
a contract (like something is recorded by the person paying someone to come give
a preso) then that document

SUBJECT
MATTER OF COPYRIGHT
- 8 enumerated
categories
– literary
works
– musical works, including
accompanying words
– dramatic works,
including accompanying music
– pantomimes
and choreographic works
– pictorial,
graphic, and sculptural works
– motion
pictures and other AV works
– sound
recordings
– architectural
works

As soon as something can be
reproduced, it is fixed (any file that is on your computer is fixed, it is
really the live transmission only that is not being
captured)
- now you can have people fixing
things that you have no idea people are
fixing

DURATION
-
has it entered the public domain
- this is
where it gets complex
- When does copyright
protection begin? Under current statute, as soon as it is fixed, copyright is
fixed
– you don’t need to file with the
copyright office, under the old statute you
did
– still is value to filing with the
copyright office, because it fixes the date when you created
it
- When does copyright protection end?
This is the real complex
questioni

1976 Copyright
Act
- didn’t really become effective till
1978, was not retroactive
- current law:
author’s life plus 70 years after author’s death (NOTE: time extended by Sonny
Bono Copyright Term Extension Act of 1988, he extended it from 50
years)
– also changed the renewal
requirement: we don’t have a renewal requirement now like we used
to

IF SOMEONE HIRED YOU, then it is
considered
- 95/120 rule: anonymous works,
pseudonymous works, and works made for hire are protected for 95 years from year
of first publication or 120 years from year of creation, whichever is
less
- also applies to things you do on
college equipment, doing it on college time, etc., esp if there is not a clear
policy that states you own what you
create

THIS IS A HUGE
ISSUE
- biggest way to protect yourself: do
this on your own time (not as a work made for
hire)
- keep things
separate
- find out if your university has
rules about who owns what

Duration of
Copyright protection under 1909 Act
- just
covered literary acts
- Hollywood actually
caused this to be revised / changed because federal law did not protect their
movies, there was just state common law (which varied widely) that protected
them
- if published or registered: 1st term
was 28 years
– 2nd term is 28 years if
renewed
- If unpublished and not
registered, there was NO federal protection, just state common law
protection

At most under this old
system, you were given 56 years
- trend:
want the copyright owner to own
this

Conflicting interest in
copyright law: not all about the author getting exclusive
rights
- other issue is the public being
able to benefit
- eventually, they/we want
these materials to go out into the public
domain

Sonny Bono act was effective
in 1998, but again wasn’t retroactive
- old
works made for hire were given 95 years of
protection

WHAT DOES THIS MEAN?
(practical interpretation)
- all works
published/registered prior to 1923 have entered into the public
domain
- if published between 1923=1963,
copyright owner was required to apply for a renewal term with the copyright
office (for this category, access the copyright office’s website and research to
find out if something is still protected)
-
If it falls between 1964-1977, no need to file for renewal. Automatically
receives 95 years of protection
- If
created on or after 1 Jan 1978, then it falls under current
law

If something falls into the
public domain, you can’t just re-register it and get the
copyright
- however there are “layers” to
copyright
- if you go through something
that is copyrighted (like a
textbook)

if you find an image on a
website and put it on your website, you can probably still use it under FAIR USE
as an affirmative defense
- if you can go
take your own picture of something that is out of copyright, then you don’t have
to worry about affirmative
defense

EXLUSIVE
RIGHTS
- once copyright owner has
copyrights, they get to do basically everything you’d want to
do
- publically performing material is
probably the most violated
- if you turn on
the radio or play a CD at a restaurant that can be a
violation

Example: faculty member
performed part of a Dr Seuss story, that
-
music itself may have fallen out of copyright, but the performance (the
orchestra who performed it) may be
protected

There are services that
give you licenses to use
- that is what
Starbucks is doing when they play

in
education we usually love going after actual damages, because we don’t make any
money
- you will be sued personnally as
well as the institution
- minimum is $750
fine per infringement, that really doesn’t
happen
- cap is $30,000 per
infringement
- this is still small change
in copyright law
- if you are a willful
infringer, then it can be $150,000 per infringement and it can move from civil
to criminal court

Faculty really are
playing with fire here: the college is not going to go to prison, but a faculty
member can

ADVICE: if you get
contacted by anyone that is threatening that you are violated their
copyright:
- be very
polite
- get their name and number to
contact them later
- hang
up
- then get on the phone immediately with
your supervisor and attorney
- you don’t
want it to look like you are doing this on your
own
- if it is something online, then get
it offline immediately

That shows
that you are not going to look like a “willful
infriginer”

Permission
-
get it in writing
- contracts do not have
to be in writing, but it sure makes court evidence
easier
- only copyright owner can grant
permission
– good faith effort is evidence
the infringement was not
“willful”

Ideally you would like to
have the use outlined, dates and times of use,
etc
- you want something in writing,
otherwise it is just your
word

Publishers often own things
other than the authors
- if you get
permission from the author, then you still might not be OK because the publisher
may hold the actual copyright
- is still
good to ask and attempt to get permissions, keep those emails if you are trying
to get permission

FAIR USE: our topic
of the day

Affirmative
Defenses
- found at
www.copyright.gov
- Section 107 -
121
- section 107 is Fair
use
- you can register your own copyrights
there

government documents coming out
of the legislature are not protected by
copyright

Are 4 factors that
determine if you have a fair use
- this is
a balancing test
- not a bright line test,
not rigid
- not meet 2 of 4, meet all 4–
it varies!

1- Look at purpose and
character of the use
2- Nature of the
copyrighted work
3- amount and
substantiality of the portion used in relation to the copyright work as a
whole
4- effect of the use upon the
potential market or value of the
work

Generally when you look at most
of case law, #1 is good

on
Purpose
- if you have ransformative, that
works for you
- if you are not making a
profit, that is good
-
educational
-
personal

Nature of
work
- factual has more weight rather than
fictional
- published v
unpublished

amount
used
- less is
more!
- usually court cases concern when
100% of a work is being used
- don’t use as
hard and fast rule, if you stay under about 15% that is looking
OK
- do have cases where people have used
the entire thing and are still ok
- if 1st
two factors weigh in your favor, then you can use more of teh
work

Effect of use on potential
market for or value of work
- this is
actually circular logic
- court asks: is
problematic? if use was
widespread…

Evidence supporting
fair use
- original out of print or
unavailable
- no ready market for
permissioin
- copyright owner
unidentifiable

Appying fair
use
- always have anomalies out there,
where the judge didn’t like the
defendants
- like Trash Pail Kids case,
amoral parody of Cabbage Patch kids, they lost the lawsuit because

no matter how well you know
copyright law, you never want to go to
court

If you deal with faculty, try
to get this message out there

There
are classroom guidelines, there have been many
attempts
- those have NOT been tested by
the courts!
- they were created by lawyers,
basing them on common sense
- I tell
faculty, DON’T RELY ON THOSE!

Those
didn’t originate with court action, so that won’t hold up in
court

Anytime you put copyrighted
content on a website, it is a real good idea to password protect
it

She has a good fair use
worksheet
- see if you are on the left side
or the right side
- first 3 questions tend
to weigh more

Remember that in the
courtroom, everything is up for grabs, the judge may not like the suit you wear
and you can lose!