Copyright Basics Creative Considerations Cindy Kristof Head Copyright

Copyright Basics & Creative Considerations Cindy Kristof Head, Copyright & Scholarly Communication Kent State University Libraries NOTSL Spring 2021 Meeting – April 30, 2021 2

Why copyright is fun Sources - http: //boing. net/2013/09/21/dragoncon-cosplayers-who-dress. html http: //www. spoonflower. com/welcome 3

Why copyright can be interesting Photo credit: http: //methanestudios. com/ 4

Intellectual Property 5 Image source: Bowy Gavid Bowie Chan – Licensed under CC BY-SA 2. 0

Primary Purpose “The Congress shall have the power…to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries. ” United States Constitution Article 1, Section 8 6

Copyright Title 17, United States Code • Grants a set of exclusive rights to copyright owners for limited periods of time • Exclusive rights are balanced with exceptions • U. S. Copyright Office – Library of Congress • http: //www. copyright. gov/title 17/ • Legal Information Institute • https: //www. law. cornell. edu/uscode/text/17 7

Patents & Trademarks United States Patent & Trademark Office - https: //www. uspto. gov/ • Patents • Terms – 20 years 1. 2. 3. Utility – invention or discovery of a new and useful process, machine, article of manufacture, or composition of matter Design - invents a new, original, and ornamental design for an article of manufacture Plant – green, growing things • Trademarks • Terms – do not run out; file all post registration maintenance documents • Types 8 • Registered - • Unregistered - ® ™

Patents • Twenty years • Generic drugs • Latisse ™ aka bimatoprost ophthalmic • Was a generic drug used to treat glaucoma • Was patented to improve eyelashes • As of late 2016, it’s generic again Image by Merlin 2525 - http: //openclipart. org/detail/170748/eyelash-2 -by-merlin 2525 -170748 htt 9

Trademarks 10

What can be copyrighted? Copyright protects “original works of authorship” that are “fixed in any tangible medium of expression. ” (Source: Title 17, U. S. Code at http: //www. copyright. gov/title 17/) 11

What cannot be copyrighted? Things that are not “fixed” • • Impromptu speeches that are not recorded Improv choreography that has not been notated or videorecorded Ephemeral or transitory items or objects Ideas Facts • • 12 Addresses and phone numbers Weights and measures Dates Recipes Names Titles* Data* Processes*

“Getting” copyright • You don’t need to “get” copyright. You have it once you’ve expressed your idea in a fixed and tangible medium. • You may mark it with: © [year][your name] • You may register your work for a fee • http: //www. copyright. gov/ 13

Exclusive Rights – Section 106 Copyright Law gives copyright holders a limited monopoly over their works, to serve as an incentive for authors and creators. The rights include the following: 1. Reproduce the work in copies 2. Distribute the work publicly 3. Make derivative works 4. Publicly display the work 5. Public performance 6. Public performance by means of a digital audio transmission (Source: § 106, Title 17 U. S. Code at http: //www. copyright. gov/title 17/) 14

Moral Rights • Berne Convention • Paternity • Right to have a work identified as having been created by a particular author • Integrity • Right to ensure that the work is not altered in a way that is prejudicial to the author's reputation. • Mentioned in United States Copyright Law only under Visual Artists Rights Act of 1990 (VARA) – Section 106 A • https: //www. desmoinesregister. com/story/money/bu siness/2021/03/30/metal-sculptor-molly-masonsues-kirkwood-community-college-changesartwork/6968387002/ 15

Some Exceptions to Exclusive Rights • Fair Use – Section 107 • Reproduction by Libraries and Archives – Section 108 • First Sale – Section 109 • Exemption for certain performances and displays, including face-to-face and online classroom use – Section 110 • Reproduction for people with visual impairments – Section 121 16

How works get into the Public Domain • They are created by the U. S. Government • Section 105 • They are placed into the public domain by their creators • They age into the public domain • Date of publication before 1926 • Life of the author + 70 years • Works made for hire – 95 years from the date of publication or 120 years from date of creation, whichever expires first • They were published between 1924 -1963 with a copyright statement but never had their copyrights renewed • https: //www. crummy. com/2019/07/22/0 17

Some things are born into the Public Domain… Section 105 United States Government works Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. 18 Public Domain image. This image was created in 1917 by James Montgomery Flagg as part of a WWI recruitment poster.

Some Things Age into the Public Domain Duration of Copyright (oversimplified) • For published works by an individual author: • Life of the author + 70 years • For anonymous and pseudonymous works, and works made for hire or held by a corporation is: • 95 years from the date of first publication or 120 years from the date of first creation, whatever comes first. (Source: § 302, Title 17 U. S. Code at http: //www. copyright. gov/title 17/) 19

Public Domain Chart https: //copyright. cornell. edu/publicdomain 20

Some things are placed into the Public Domain Source: http: //www. cnduk. org/about/item/435 -the-cnd-symbol 21

In the Public Domain 22

First Sale Doctrine – Section 109 • Allows us to borrow, lend, sell, destroy, or give as gifts: • • • Books DVD and Blu-ray movies CDs Poster prints Art (except for what is covered by VARA) • Applies to materials that are purchased and not licensed • Netflix • Amazon Kindle books • i. Tunes, etc. (Source: § 109, Title 17 U. S. Code at http: //www. copyright. gov/title 17/) 23

First Sale Doctrine – Section 109 • We own objects, but not the creative content within them. Image source: http: //inhabitat. com/tu-delft-architecture-library-opens-with-desk-of-recycledbooks/. © This image may be protected by copyright. It is used here in accordance with fair use. 24

Reproduction by Libraries & Archives – Section 108 Xerox founder Joe Wilson with the 914 - Image Source: 25 https: //www. smithsonianmag. com/history/duplication-nation-3 D-printing-rise-180954332/ (used under Fair Use)

Reproduction by Libraries & Archives – Section 108 Not just photocopiers, but… • Scanners • Overhead, page-turning, printer-scanners, printer-scanner-copiers, compact, hand-held • Microform machines • 3 -D printing machines • Cell phones 26 12/24/2021 Image source: https: //www. scannx. com/the-book-scanning-blog/bid/402210/self-servicescanners-are-replacing-copy-machines-in-the-library (used under Fair Use)

17 U. S. Code § 108 – Vastly Oversimplified Outline https: //www. law. cornell. edu/uscode/text/17/108 27 a) Library or archive can make a single copy of a portion of a copyrighted work for its patrons – “notice warning” where orders are taken b) Three copies of an unpublished work for preservation, security, deposit in another library c) Three copies of a published work – replacement, deposit in another library d) ILL can make a copy – “no more than one article” from an issue of a journal or portion of book; must have “notice warning” where orders are taken e) ILL can make an entire copy of book “not available at reasonable price”; must have “notice warning” where orders are taken f) Regarding the copying equipment in your library – do not monitor; must have signage g) No systematic copying or copying by interlibrary loan arrangements in such quantities as to substitute for a subscription or purchase h) Libraries or archives can make copies of materials in the last 20 years of their copyright terms i) Does not apply to a music, art, or motion pictures.

By law, can your library or archive make use of Section 108? Section 108 (a) Your reproduction and distribution must be without any purpose of direct or indirect commercial advantage. Your collections must be open to the public or to persons unaffiliated with the institution but doing research in a specialized field. 28

By law, can your library or archive make use of Section 108? Section 108 (d) The copy becomes the property of the user; Library has had no notice that the copy will be used for any purpose other than private study, scholarship, or research; Library displays prominently, at the place where orders are accepted, and includes on its order form, a notice warning of copyright. 29

By law, can your library or archive make use of Section 108? Section 108 (g) The rights to make copies extend to isolated and unrelated reproduction or distribution of a single same material on separate occasions, but the rights… …do not extend to related or concerted reproduction or distribution of multiple copies of the same material, whether made once or over time …do not extend to systematic reproduction or distribution Nothing in this clause prevents interlibrary arrangements, but they must not be in such aggregate quantities as to substitute for a subscription to or purchase of a work (emphasis mine) 30

Notice Warning of Copyright mentioned in Section 108(d)&(g) Notice Warning Concerning Copyright Restrictions The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research. ” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use, ” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law. Source: Code of Federal Regulations https: //www. law. cornell. edu/cfr/text/37/201. 14 31

By law, can your library or archive make use of Section 108? Section 108 (h) …during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the[se] conditions apply… No reproduction, distribution, display, or performance is authorized under this subsection if: a. the work is subject to normal commercial exploitation; b. a copy…of the work can be obtained at a reasonable price; or c. the copyright owner or its agent provides notice…that…[either of the above] applies. The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives. “Last Twenty” projects - http: //blog. archive. org/2017/10/10/books-from-1923 -to-1941 -nowliberated/ 32 12/24/2021

Fair Use Doctrine – Section 107 Four Factors of Fair Use 1. Purpose & Character of Use – e. g. , non-profit vs. for-profit 2. Nature of Work – e. g. , factual vs. creative; published vs. unpublished 3. Amount & Substantiality of Work – e. g. , small portion vs. large portion or “heart” of work 4. Effect of Use – 33 e. g. , little effect on market vs. huge impact on market value

1. Purpose and Character of Use Favoring Fair Use Opposing Fair Use Teaching Commercial activity Research Profiting from the use Scholarship Entertainment Nonprofit education Bad-faith behavior Criticism Denying credit to original creator Comment News reporting Transformative use If access is restricted (to students, etc. ) Parody Source: https: //copyright. columbia. edu/basics/fair-use-checklist. html 34

Transformative use 35 Image source: Rolling Stone Magazine (used under Fair Use)

Transformative use • Originated in 1994 with Supreme Court case, Campbell v. Acuff-Rose • The band 2 Live Crew used lyrics from Roy Orbison’s “Pretty Woman” • Justice David Souter: • “… the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is ‘transformative, ’ altering the original with new expression, meaning, or message. ” Source: http: //www. nolo. com/legal-encyclopedia/fair-use-what-transformative. html • Possible meanings of transformative (William Fisher, Copyright. X) 1. 2. 3. 4. 36 Creative Physical modifications Socially beneficial Used for a different purpose

2. Nature of Copyrighted Work Favoring Fair Use Opposing Fair Use Published Unpublished Factual Highly creative work such as art, music, film, novels, plays, poetry Non-fiction Fiction Important to favored educational objectives Source: https: //copyright. columbia. edu/basics/fair-use-checklist. html 37

Kienitz v. Sconnie Nation • In 1969, Paul Soglin attended this party • In 2012, as mayor of Madison, he wanted to shut the party down. Mifflin Street Block Party, University of Wisconsin, 1969 Source: http: //www. maximumink. com/index. php/articles /permalink/mifflin_street_block_party 38

Kienitz v. Sconnie Nation (a local tshirt shop near the University of Wisconsin) sold 54 tshirts in protest, using this photo, taken by Madison photographer Michael Kienitz, from the City of Madison’s web site. 39

Kienitz v. Sconnie Nation 40 Source: http: //host. madison. com/news/local/crime_and_courts/judge-rules-soglin-sorry-for-partying-shirt -did-not-violate/article_87 b 1 c 317 -a 0 ab-58 d 9 -af 52 -aa 360 ea 0 f 549. html

Kienitz v. Sconnie Nation • September 2014 • U. S. 7 th Circuit Court of Appeals • 2012 - Madison photographer Michael Kienitz filed a lawsuit against Sconnie Nation • “A shirt is no substitute for the original photograph” • “Defendants removed so much of the original that, ‘as with the Cheshire Cat, only the smile remains. ’” • “What is left, besides a hint of Soglin’s smile, is the outline of his face, which cannot be copyrighted. • Defendants chose the design as a form of political commentary, not for profit. ” Source: http: //fairuse. stanford. edu/case/kienitz-v-sconnie-nation-llc/ 41

3. Amount and Substantiality of Portion Favoring Fair Use Opposing Fair Use Small quantity Large portion or whole work used Portion used is not central or significant to Portion used is central to, or the “heart of the entire work the work” Amount is appropriate for favored educational purpose Source: https: //copyright. columbia. edu/basics/fair-use-checklist. html 42

Amounts • Amounts such as these are not in Fair Use • Guidelines • • • 10% 30 seconds 1, 000 words 3 minutes Up to five images • Case Law (law based on judicial opinions or decisions) • 100 pixels x 125 pixels – Thumbnails are fair use • Perfect 10 v. Google and Kelly v. Arriba Soft 43

Substantiality • 1979 - President Gerald Ford wrote his memoir, A Time To Heal, published by Harper & Row. • Time Magazine contracted with Harper & Row to publish portions of the memoir. • The Nation scooped Time Magazine and published • Quotes including Ford’s reasons for the pardon he granted to President Nixon • Harper & Row v. Nation Enterprises, 471 U. S. 539 (1985), • The Nation had published “the heart of the work. ” • Harper & Row lost sales 44 Image source: https: //commons. wikimedia. org/wiki/File: Nixon_Officia l_Presidential_Portrait, _07 -08 -1971. jpg This image is in the Public Domain.

4. Effect of Use on the Potential Market Favoring Fair Use Opposing Fair User owns a lawfully purchased or acquired copy of the original work Could replace the sale of the original work One or a few copies made Significantly impairs the market or potential market for the copyrighted work or derivative works No significant effect on the market or potential market for the work Reasonably available licensing mechanism available No similar product marketed by the copyright holder Affordable permission price for using the work Lack of licensing mechanism Numerous copies made Making it accessible on the web or other public forum Repeated or long-term use 45 Source: https: //copyright. columbia. edu/basics/fair-use-checklist. html

Effect of the use on the potential market for the work 46 12/24/2021 Source: https: //www. pearson. com/us/higher-education/program/Kemp-Financial-Accounting-Plus-My-Lab-Accounting-with-Pearson-e. Text-Access-Card-Package-5 th-Edition/PGM 2535158. html? tab=order

Kenny Crews’ Fair Use Checklist Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville). Fair Use Checklist. https: //copyright. columbia. edu/basics/fair-use-checklist. html • We adapted this to make it a PDF form that can be filled out, saved, and cleared. 47

Kent State’s Adapted PDF Fair Use Checklist http: //libguides. library. kent. edu/ld. php? content_id=11205603 48

Getting a Feel for Fair Use • U. S. Copyright Office Fair Use Index • https: //www. copyright. gov/fair-use/ • Stanford Libraries Summary of Fair Use Cases • https: //fairuse. stanford. edu/overview/fairuse/cases/ http: //cyberlaw. stanford. edu/blog/2007/03/ fairy-use-tale 49 12/24/2021

Fair Use Curveballs… • 2 nd Circuit Court of Appeals rules Warhol’s use of a photographer’s photographs for Vanity Fair was NOT fair use. • Photographer Lynn Goldsmith licensed these photos to Vanity Fair in the 1980’s • Learned about this after Prince’s death in 2016 • Transformative use: “…new expression, meaning, or message…” • Court: “identical overarching purpose” – therefore a threat to her market for the works. 50 12/24/2021 Source: https: //www. hollywoodreporter. com/thr-esq/andy-warhol-foundation-suffers-big-copyright-defeat-at-appeals-court

Fair Use Facts • Is Fair Use as a right? • It’s a safeguard of the First Amendment, according to the Supreme Court. • Fair Use is used as a defense in U. S. courts of law • If your intended reproduction or use is not covered by a separate section of the U. S. Copyright Law, it may still be lawful under Fair Use. • “Fair Use Savings Clause” • Fair Use evaluations do NOT • carry the weight of a legal decision • substitute for the advice of an attorney • Keep records of your fair use evaluations • They demonstrate a “good faith effort” to comply with the law • Statutory damages – up to $150, 000 51

Licenses • LICENSES can supersede LAW • Licenses are agreements between parties (between the copyright owner and the end user) for use of materials for specified purposes • A license may directly forbid a specified use • Example: Harvard Business publications in EBSCO 52

Creative Commons (CC) Licenses • “Some rights reserved…” • “Without first asking the copyright owner, you may do the following under these conditions…” 53 12/24/2021 https: //creativecommons. org/

Commercially Licensed Image • Getty Images • AP Images 54 12/24/2021

Creative Commons Licenses • http: //creativecommons. org/ • Unlike the U. S. Copyright Office, this organization does NOT keep registrations on file • Change your copyright terms from the default of “all rights reserved” to “some rights reserved” • A few of the types: • Search for images/music/video you can use • http: //search. creativecommons. org/ 55

Creative Commons Licensed Image "Blueberry Jam Cookies" by 3 liz 4 is licensed under CC BY-NC-ND 2. 0 56 12/24/2021 https: //ccsearch. creativecommons. org/photos/eee 7511 e-bb 70 -48 b 5 -adc 5 -b 8 a 0827 fb 0 c 7#panel 3

Rights Statements for Digital Projects • https: //rightsstatements. org/en/ • 12 separate statements to apply to digital objects 57 12/24/2021

Internet Archive and Controlled Digital Lending https: //archive. org/ • Includes: • Way. Back. Machine • https: //archive. org/web/ • National Emergency Library – COVID-19 • Open Library – 2 million volumes as of February 2021! • https: //openlibrary. org/ https: //controlleddigitallending. org/ • 1: 1 “owned to loaned” ratio • Your library’s books can be made available through CDL • Brewster Kahle - https: //er. educause. edu/articles/2017/3/transforming-ourlibraries-from-analog-to-digital-a-2020 -vision 58 12/24/2021 https: //archive. org/ and https: //controlleddigitallending. org/

Questions? 59 "questions" by Enderst 07 is licensed under CC BY-SA 2. 0

Thank You! Cindy Kristof, ckristof@kent. edu www. library. kent. edu/copyright 60 12/24/2021