COPYRIGHT BASICS LIBRARY WORKSHOP SPRING 2012 Linda Sharp Marsha Stevenson

WHAT IS COPYRIGHT? Copyright is a form of protection grounded in the U.S. Constitution; Article 1, Section 8 empowers Congress 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”. Copyright protection is provided for by law (title 17, US Code). It applies to original works of authorship fixed in a tangible medium of expression. Both published and unpublished works are protected. Copyright law was originally intended to provide a short term “monopoly” for authors for the purpose of encouraging creativity (14 years plus 14 years renewable). Our current copyright law confers upon copyright holders certain exclusive rights.

ORIGINAL WORKS ELIGIBLE FOR COPYRIGHT PROTECTION Literary works Musical works with accompanying words Dramatic works with accompanying music Pictorial, graphical, and sculptural works Motion pictures and other audiovisual works Choreographic works Sound and digital recordings Architectural works Software

WHO CAN BE AN AUTHOR? A writer A musician or artist A photographer A student or professor A company or organization An unknown entity But who controls the rights????

WHAT ARE THE EXCLUSIVE RIGHTS GIVEN TO COPYRIGHT HOLDERS ? To prepare derivative works based upon the work; Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. To reproduce the work To distribute copies of the work to the public To perform the work publicly To display the copyrighted work publicly to perform the work publicly by means of a digital audio transmission

HOW LONG DOES COPYRIGHT PROTECTION LAST? Copyright Act of 1790Copyright Act of established U.S. copyright with term of 14 years with 14- year renewal Copyright Act of 1831Copyright Act of extended the term to 28 years with 14-year renewal Copyright Act of 1909Copyright Act of extended term to 28 years with 28-year renewal Copyright Act of 1976Copyright Act of extended term to either 75 years or life of author plus 50 years Copyright Renewal Act of 1992Copyright Renewal Act of removed the requirement for renewal Copyright Term Extension ActCopyright Term Extension Act of extended terms to 95/120 years or life plus 70 years Digital Millennium Copyright Act of 1998Digital Millennium Copyright Act of criminalized some cases of copyright infringement criminalized

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WHAT CAN I USE WITHOUT GETTING PERMISSION???? Works you create yourself Work not protected by federal law Works in the Public Domain Works governed by Creative Commons License Works which would be considered Fair Use

FAIR USE WORKS IN FAVOR Teaching Research Scholarship Nonprofit educational institution Criticism Comment News reporting Transformative use Restricted access Parody WORKS AGAINST Commercial activity Profiting from use Entertainment Bad faith behavior Denying credit to original author

COPYRIGHT AND MUSIC

Copyright law as it pertains to music is both simple and complex. It is simple because the eligibility standard for copyright protection is the same for music as for other creative works, i.e., "…original works of authorship fixed in any tangible medium of expression." a songwriter/composer receives the same bundle of exclusive rights as creators of other original works, which is the right to reproduce, distribute, create derivative works, perform publicly, and display their work publicly. duration of copyright protection for original musical compositions is also standard.

It is complex because Multiple copyrights “I Will Always Love You” Multiple formats and uses Sheet music, CD, mp3; Soundtrack, Live Public Performance, Digital Audio Transmission Different permissions and licensing for different formats and uses Stakes are high; money is big

THE “YOU THOUGHT I WAS EXAGGERATING” SLIDE

US COPYRIGHT OFFICE SURVEY

MEDIA COPYRIGHT Digital Millennium Copyright Act (1998) brought copyright into the digital age “DRM” – Digital Rights Management makes it illegal to circumvent DVD encryption Media industry is aggressive in asserting rights and prosecuting violators

MEDIA FORMAT CONVERSIONS Easy, but illegal, to reformat works still in copyright Legally considered “obsolete” only when playback equipment “is no longer manufactured or … reasonably available in the marketplace” LP to CD/MP3 converters VHS – an “obsolete” format?

MEDIA IN AN EDUCATIONAL SETTING Possible to do many things in educational setting that are prohibited elsewhere TEACH Act (2002) Allows media use “as an integral part of a class session” Must be limited to students enrolled in the class Requires use of technology to prevent copying

VIDEO SCREENINGS “Education exemption” allows screenings in classrooms “Public Performance Rights” Viewing rights must be purchased to legally show a film “outside of a normal circle of family and its social acquaintance”

MOTION PICTURE ASSOCIATION OF AMERICA “No additional license is required to privately view a movie or other copyrighted work with a few friends and family... However, bars, restaurants, private clubs, prisons, lodges, factories, summer camps, public libraries, daycare facilities, parks and recreation departments, churches and non- classroom use at schools and universities are all examples of situations where a public performance license must be obtained.”

THE NFL AND CHURCHES Church wanted to show 2007 Colts-Bears Super Bowl game to youth group Planned to charge admission to cover food and show the game on a big screen ( >55” ) NFL threatened legal action Sparked Senate bill in 2008 NFL compromised, for church groups not charging admission Example: Fall Creek Baptist Church, Indianapolis, 2007

IMAGES Assume that all on the web are in copyright unless there is an explicit statement to the contrary (“Terms of Use”) Scanning and posting online is “reproduction” and “distribution” Each work has its own copyright Two possible holders: The artist/designer The photographer

CNN PHOTOGRAPH, COMMENCEMENT 2009

“ORPHAN” WORKS When the copyright holder can’t be identified When the copyright holder can’t be found Still not legal to use freely If choosing to use, document (and retain) diligent efforts to locate/contact

PHOTOGRAPHS Photographers generally hold copyright Privacy Rights State laws vary If individuals are identifiable, should get their permission Publicity rights Commercial value of celebrity’s name/image/voice Need their consent to use commercially

CREATIVE COMMONS CC licenses have four major concepts: Attribution (giving credit) Derivatives (whether modifications are allowed) Commercial or noncommercial Share alike (if re-using, retain the same license) “ … a simple, standardized way to grant copyright permissions …”

THE PUBLIC DOMAIN May have expired May never have been in copyright (e.g., government employees’ works) Copyright holder may have made a work publicly available When copyright doesn’t apply

Dorothea Lange, photographer “Migrant Mother” 1936 US GOVERNMENT EMPLOYEE

“DERIVATIVE” VS. “TRANSFORMATIVE” “Derivative” closely based on an existing creative work “Transformative” based on an existing work, but modifying it significantly Judgment call about when work is an “infringing derivative” Judgment call

FAIR USE? INFRINGING DERIVATIVE? MANNY GARCIA, APSHEPARD FAIREY

WORK-FOR-HIRE DOCTRINE Employers are considered copyright owners of works created by their employees within the scope of their employment Independent contractors’ status is less clear Should be a written contract specifying who owns copyright

NOTRE DAME’S INTELLECTUAL PROPERTY POLICY “The University will ordinarily waive its rights to intellectual property created by student creators …” “The University owns all rights to all copyrightable materials … that are works made for hire …” “… the University does not normally claim ownership of works such as textbooks, articles, papers, scholarly monographs, or artistic works.” policy/

TED DRAKE - OBITUARY “Ted Drake, an artist and illustrator who created Notre Dame’s trademark leprechaun logo, died here on Thursday …” “Mr. Drake’s best-known creations were Notre Dame’s bearded leprechaun and the symbol of the Chicago Bulls …” “[H]e worked as a designer at Wilson Sporting Goods in Chicago. That was where he created the logo for the University of Notre Dame in 1964.” New York Times, May 30, 2000

NOTRE DAME LEPRECHAUN “Mr. Drake earned a mere $50 for the logo, which was later copyrighted by the university.” Drake obituary, New York Times, May 30, 2000