Copyright & You

Why has copyright remained a part of our law and our culture for so long? Because it is vital to a healthy economy, to the preservation of artistic and creative works for all to enjoy, to the creation of new technologies, and to all of us having a vast array of cultural choices.

When artists are confident in their ownership of their creations, they feel able to make them available to a larger audience. Often they’ll work with a producer or distributor. The wider the distribution the more reasonable the pricing, which in turn encourages all of us to go out and buy, read, watch—just plain enjoy—the work before us. Much of the revenue that comes from our appreciation and willingness to watch a creative work goes back to all who worked to make the original vision a reality.

The digital age brings a multitude of opportunities for the creators of copyrighted works as well as their producers and distributors. New business models are being developed every day to create, distribute and market artistic works. We tend to hear a lot about how modern technology is harming the creators of copyrighted works—and plenty of harms do occur—but that doesn’t imply that technology itself is bad. Strong copyright protections do not stop individual creators from taking advantage of advances in digital technologies to bring us creative works we can enjoy in ways we never imagined. Technology and copyright protection need not be at odds with each other. They can both work to the benefit of all of us.

Have you ever heard somebody say, “Of course, we want to see artists get paid,” and then they follow that with a phrase beginning with “but”? Generally the “but” and what follows it, implies a belief that copyright protections are not really important any more. That belief can begin to erode or even eliminate the intellectual property rights accorded to creators in the U.S. Constitution and through global treaties. The U.S. Congress in 1790—in one of its first major acts—passed the first Copyright Act. They did that because they felt it was vital to a newly created and growing country that embodied a belief in the rights of the individual. That wisdom is as true today. If anyone ever says they want to see artists get paid, remind them we already have a system that does that, and it has been doing so successfully for 217 years. It has helped make our American creative culture unique and great, and it will continue to do so.

Yes! I most definitely care about protecting my ability to earn a living with my art. Art you can buy directly from the artist right here from his web gallery. You’ll join that small group of individuals who support the arts and own one of a very limited edition. My original art is not mass-produced. and by creating a limited editin of ten, I don't have to depend on a single sale to make my living. Art crafted with care, time, imagination and passion is valuable. The physical work of art isn't what you get for yor patronage, its how the work makes you feel, each and every time you view it.

FAQs on Fair Use

What is fair use?

“Fair Use” is a defense to copyright infringement. It applies to when a copyrighted work is used for certain, usually noncommercial, purposes such as criticism, comment, news reporting, teaching, scholarship, or research. When the defense applies it allows someone to use a portion of a copyright work without getting the permission of the copyright owner or having to compensate the copyright owner. The fair use defense is codified in Section 107 of the Copyright Act.

Does it specify what can be done with someone else’s copyrighted work?

Not really. There is no bright-line test in the law that says one action is fair use and another is not. Rather there are four factors that are considered in determining whether a particular use is a fair use.

What are the four fair use factors?

The first takes into account “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The second factor considers “the nature of the copyrighted work,” meaning those that are creative in nature, such as a musical composition, sound recording, motion picture, video game, etc., would receive more protection than fact-based works. The third factor considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” meaning use of an entire work is less likely to be found to be a fair use. The fourth factor considers “the effect of the use upon the potential market for or value of the copyrighted work.”

So how do such things get decided?

The fair use defense has been around for a very long time. As a result, there are a wide variety of instances where the fair use defense has been raised in civil cases, some successfully and some not. In addition, there are fair use guidelines that apply exclusively to educators and librarians.

Is fair use a right?

No. There is no right to make “fair use” of a work. An individual does not have the “right” to make use of another’s copyright work. If that were the case, someone might be able to publish excerpts from your private letters against your wishes or break into your house in order to get a copy of a valuable photograph under the guise that they had a “right” to get a copy of your copyrighted work to make a fair use of it. Fair use only arises when someone already has a copy of a copyrighted work and makes copies, distributes, performs, alters, or displays that work and the copyright owner subsequently challenges that use of the work as being an infringement. In that case, the person could raise a defense of fair use.

But fair use is a limit on copyright, isn’t it?

Yes, it is. Copyrights are considered intangible property. Similar to other forms of property, such as real property (like land) or personal property (like your TV), the rights granted to the property owner are limited. For instance, your neighbor cannot leach toxic chemicals from his yard into yours. He can’t build a convenience store in his front yard without the proper zoning. Similarly, the copyright law also includes certain limitations to a copyright owner’s rights. One such limitation is the fair use defense.

Aren’t all personal uses of a work a fair use?

No. For example, if you choose to take a copyrighted work without compensating the owner and use it for personal use, rather than sell it, you could still be found by a court to be performing a commercial use. In the 2002 Napster case, the U.S. Ninth Circuit court ruled that making copies of copyrighted works in order to avoid paying for them was a commercial use.

But aren’t there clear-cut cases of fair use? What about the Sony Betamax case?

Yes, in the Sony decision of 1984, the U.S. Supreme Court ruled that it was fair use to use a videocassette recorder to tape a broadcast TV show for later viewing. This is often referred to as “time shifting.” But that decision was not a license by the High Court to approve just any noncommercial use, nor was it a license to make copies of any work. The case merely held that it was a fair use to record a show for the purposes of watching it later.

But we’ve moved beyond videocassette recorders now; technology can enable so many uses of creative works. Why shouldn’t we be able to enjoy those new uses?

We all should, and we are—legally—more and more every day. Creators of copyrighted works want people to enjoy their works, and they want to be compensated for the investment they make in the creative process. They have every incentive to work with technology companies to ensure their works can be made available, legally, in any format the consumer desires. With this system, the consumer has broad choice, the technology companies find customers for their products, creators find new audiences for their works, and those creators are encouraged to create new works.

Copyright owners, the consumer electronics industry -- shouldn’t everyone be focused on consumers?

Absolutely. Consumers are the lifeblood of creative industries. A songwriter in Nashville doesn’t write a new work to sing to himself in the shower. A director doesn’t gather a small army of workers to put together a movie to show it to friends in her family room. An author doesn’t write a novel and then use the manuscript as a foot rest. Creators love to create new works, but they really love that others can enjoy the fruits of their labor. They have every incentive to see that their work is available to as many people as possible. We consumers have a long history of being willing to pay for the enjoyment and entertainment of a wide range of creative works. Just because technology has introduced ways for us to get content without paying for it doesn’t mean this is how we should behave. If we as consumers want artists, authors and publishers to continue to create great works for us, we want to hold up our end of the bargain. That also benefits society as a whole, as these creators operate in industries that employ many people all over America.

Rights matter, whether printed on professional photo paper or digitized online. As Jason Lanier writes in his book “You Are Not a Gadget,” there can be limitless copies of digital works online, but creative individuals are most definitely finite. Photographers and illustrators don’t need “compassion,” except to the extent that the YouTube video defines compassion as “respect.” The 11,000+ artists and creators who signed the Copyright Alliance letter to President Obama and Vice President Biden, and many, many more artists and creators, demand that respect; respect for their craft and for their rights.

©2008 Copyright Alliance & Robert Barnes. Used with Permission.