Tag Archives: copyright

Fair Use: Misconceptions and Examples

I gave another talk on fair use last week, this time at the University of Chicago Library. The theme was “misconceptions and examples,” so after giving brief overviews of copyright and fair use, I talked through examples from several important cases. Then, I asked the participants to work through a few fair use scenarios, in pairs. We got back together as a group to discuss the scenarios at the end of the hour.

Here are the materials I used: PPT slides, PDF slides, and PDF handout. The handout, in particular, is very similar to what I used in my Teaching Fair Use talk at Loyola. All are licensed under CC-BY 4.0. Please reuse and remix them!

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Fair use quiz

In spring 2013, I created a basic quiz on fair use for the students in my section of CopyrightX. When I entered the quiz into a Google Form for use by this year’s students, I saw it would be easy to make a public copy, so I thought I would do that and post it here.

Here is my quiz on fair use.

It is a simple multiple choice quiz designed to help students review their understanding of fair use. It asks them how each of the subfactors “tilts” in the fair use analysis. After each question, the quiz displays the right answer and indicates whether the student answered correctly.

I’ll say again that this is only a superficial assessment of someone’s fair use knowledge — it’s a starting point, rather than an ending point, for studying the subject. However, I think this basic understanding is very important, which is why I’m sharing the quiz here. I’m also releasing the quiz under a CC-BY 4.0 license (though I think there’s very little there that is subject to copyright protection).

If you spot an error in this quiz, I would like to know about it. Please comment here or send me an email. I’d also love to hear if there are subfactors you think I should add to the quiz.

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The Fair Use Factors: Their History and Application

As part of my observance of Fair Use Week (a big holiday around these parts), I gave an online webinar today for ACRL. The topic was “The Fair Use Factors: Their History and Application.” The slides from this presentation are licensed under a CC-BY 4.0 International license, and I’m posting them here in PDF and PowerPoint format. Feel free to take advantage of the license, and if you participated — thanks for coming!

Update: Here’s the recording of the talk on YouTube.

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Teaching Fair Use

I gave a workshop this morning for the Loyola University Chicago Libraries. The subject was “Teaching Fair Use,” and it was in celebration of Fair Use Week. The participants included librarians and faculty, and I focused on tips and tricks for teaching fair use. (Of course, we also talked a lot about fair use doctrine.)

I’m posting my slide presentation here in PDF and PowerPoint format. It is licensed under CC-BY 4.0. I’m also posting the handout for a role-playing exercise we did in the second half of the workshop, also CC-BY 4.0.

During the question and answer period, I recommended a few other resources that I find useful when addressing copyright and fair use issues in the academic context. I’m listing them below in case folks are looking for them.

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Reviewing copyright law

I’ve been wanting for a while to put together a list of copyright law review materials. This might be useful to someone reviewing for an exam, but I’m particularly thinking of a professional who wants to solidify her overall knowledge of the subject before diving more deeply into a particular part of it. I have two teaching gigs coming up that will focus on fair use, so that’s the nudge I needed to prepare this list.

The fifteen-minute review:

For someone who’s very limited in terms of time, I would recommend using an “attack outline,” the very short summary law students sometimes prepare when studying for finals. Attack outlines are essentially a checklist of items to address in an exam. I developed a copyright attack outline during my first year as a CopyrightX teaching fellow. Here is the latest version as a slide deck and as a one-page PDF.

This outline is helpful for remembering how the different pieces of copyright doctrine fit together, which is about what can be done in fifteen minutes.

The one-hour review:

With a bit more time, I would recommend reading through an attack outline or copyright syllabus and then taking those questions to one of the many good free online summaries of copyright. These are essentially more detailed outlines of the same material. I particularly recommend the following:

Two non-free alternatives to these sites would be the major treatises, Nimmer on Copyright and Patry on Copyright. They are probably too lengthy to be useful during a quick review, unless you’re really comfortable with treatises.

Another option for answering questions left by the attack outline is Terry Fisher’s Copyright Law Map. I relied on it when creating the attack outline provided above, but it is far more detailed. It is organized as a “mind map” — some people really appreciate this as an alternative to more traditional formats.

The fourteen-hour review:

If you have time for it, a great way to review copyright law is to watch Terry Fisher’s CopyrightX lectures. In theory, this can be done in about fourteen hours — there are twelve 90-minute lectures, but someone seeking only to review the substantive law of copyright could skip the second, fourth, and tenth lectures, which are devoted to the theories underlying copyright law. If you are truly reviewing copyright, and certainly if you have seen the videos before, you may wish to speed up playback to save more time. Instructions for doing so are available at the bottom of the page linked above.

The lectures are very dense, so first-time viewers may wish to pause, replay a portion, look up a term, etc., any of which would increase the time beyond fourteen hours. I would also advise spreading the lectures out (no binge-watching!).

Videos are often tough for review because they aren’t indexed or searchable. In the case of the CopyrightX videos, transcriptions prepared by the FLAX project make things somewhat easier. Also, the 90-minute lectures are further subdivided by topic, so it’s possible, for instance, to review works for hire without watching the entire authorship video.

If you have additional suggestions for reviewing copyright law, please share them in the comments.

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Orphan works in practice: 1933

This fall, I’ve finally been reading Testament of Youth, Vera Brittain’s memoir of the years from 1900 (when she was 7 years old) to 1925 (when she was 32). I say finally because this book has been on my to-read list for over a decade. My high-school history teacher recommended it to our class in 2004. (Thank you, Mr. Porter.)

Brittain came from a family of English industrialists (paper manufacturers). Her parents invested in her education, though not quite to the extent she wanted. Nonetheless, she studied on her own after leaving school and gained admission to Oxford for Michaelmas Term 1914. Before she got to campus, war had broken out in Europe. She studied for a year before leaving Oxford to become a Voluntary Aid Detachment nurse, influenced by the military service of her brother, her fiancé, and their friends. Her book is famous for its chronicle of the war years, but that’s by no means the whole story.

I’ve reached fall 1917, and the book has been just as heart-breaking and powerful as you would expect. It’s very much “of its time,” which I think contributes to its power — Brittain is clearly trying to be as honest and accurate as possible. She was writing around 1930 (the book was published in 1933), so she rounded up her old correspondence, her diaries, and earlier memoir drafts, and relied on them heavily. She also gathered materials from her friends and relatives. She was a poet, as was her fiancé, and poetry plays a major role in the book.

At the beginning of the book there is a section titled “Author’s Acknowledgments.”  In many ways it’s a typical acknowledgments section — she thanks the Oxford don who checked a translation from Cicero, she thanks the staff of the Imperial War Museum, and she thanks a friend who provided “much generous help and encouragement.” Earlier in the same paragraph, she thanks the friends and family (or their estates) who have given her permission to quote from their correspondence and to publish their poems.

The next paragraph thanks a list of publishers and agents who “kindly permitt[ed] the use of copyright poems or long quotations,” including one by Rudyard Kipling and another by Rupert Brooke. At the end of that paragraph, she writes:

I also want to express my gratitude to the authors of the poems quoted on p. 122 (from London Opinion) and p. 155 (from the Westminster Gazette), as well as my regret that I was unable to approach them personally, because in the one case the poem was signed only by initials and in the other the long-ago date of publication was unknown.

The London Opinion poem (“A hundred wounded soldiers fill”) is a mocking-bordering-on-misogynist account of the relocation of students from Somerville (Brittain’s college, then all-female) to a building in Oriel, then an all-male college, after Somerville’s own buildings were commandeered by the War Office for use as a hospital. This took place in 1915, so I don’t think it can be the undated poem — it must be the one signed only by initials.

The Westminster Gazette poem is Kathleen Coates’s very sentimental “A Year and a Day.” Brittain’s fiancé copied it out of the newspaper to send to her from France. In the book, she gives the poem’s author and title, and it’s clear from the narrative that she can at least roughly date the letter into which her fiancé copied it. Still, this must be the poem with an unknown “long-ago date of publication.”

Brittain’s note in the acknowledgements, coupled with her publisher’s willingness to publish the memoir, suggest what I would call a “common sense” approach to copyright. I’m glad to see it existed back in 1933, and I like to think it’s making a comeback.

It’s clear that Brittain and her publisher wanted to get copyright clearance for these two poems, as they did for the Kipling poem and the others. It’s also clear that they tried to get that clearance, but they ran into trouble. For the first poem, they could not identify the rightsholder. For the second, they had the name of a likely rightsholder, but they had no way of locating her or determining if she still held the rights. Today, we would call these poems “orphan works” (or “hostage works,” if you’re a Lydia Loren fan).

The process Brittain went through is essentially what’s recommended today. She tried to identify the rightsholders in order to seek permission. When that failed, she decided to use the poems anyway, likely weighing the risk of a lawsuit against the importance of the two poems to her book. And then, she wrote that note in the acknowledgements section. It serves at least two purposes:

  1. First, it is kind. She makes clear her intention to seek permission, and she shows the unidentified rightsholders the same gratitude that she did to the authors and publishers who gave her copyright clearance and to the friends and family who provided their writings. If one of the rightsholders read it, I can’t help but think it would influence them to act kindly in return. It’s easy to underestimate the value of this.
  2. Second, she outlines (albeit briefly) how her search failed and what information she does know. She shares all the background material she has. In doing so, she does a favor for anyone trying to trace these poems in the future, not only from a copyright perspective but from a historical one.

Based on some quick internet research, it seems to me that the rightsholders of these poems never did come forward. Even now, the first poem appears only anonymously, and both poems appear mostly in connection with Testament of Youth. This makes Part II above even more important, because the information Brittain provides in her book is nearly the only information available on these poems. It’s certainly the easiest to access.

For me, this is a nice parable about copyright clearance and orphan works: search diligently, but don’t be afraid to use an orphan work without permission — you may be the one who saves it from the sands of time!

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Surface design copyright

It’s such a rare thing for a sewing blog to point me to a copyright story (albeit one with a misleading headline—I don’t think you can be a patent troll if you are enforcing a copyright) that I feel compelled to post about Fortune’s recent article on surface-design copyright suits. The past decade, Fortune reports, has seen a surge in lawsuits by textile companies, evidently mostly represented by a single L.A. firm.

On the one hand, I’m happy to hear this. I’ve worried in the past that advocates for greater copyright protection of fashion benefit from the blurring the line between the design of a print (protectable under current law) and the design of a pattern (not protectable under current law).

A few years ago, I was at a lecture on copyright protection for fashion and witnessed a definite gasp of outrage from the audience when the pro-design protection speaker, Jeannie Suk, showed the image below. (These dresses are also the opening anecdote in Kal Raustiala and Christopher Sprigman’s book, The Knockoff Economy, which argues against design protection.)

Side-by-side photographs of two similar empire-waisted maxi dressed made from cream fabric with floral panel print and trimmed in black

The dress on the left is by Foley & Corinna and the dress on the right by Forever 21.

I’ve done a moderate amount of digging (e.g., this NYT article), and I don’t think the case of these dresses was ever litigated. If it had been, I wouldn’t have been surprised by a victory for the plaintiffs, one that would avenge the outrage of that lecture audience.

The dress’s style lines are dictated by utilitarian concerns and thus not protectable. In my opinion, that is a clear case. (And even if this argument fails, the maxi-dress-with-black-outline design is either scènes à faire or an unprotectable infringing derivative work.)

However, the surface design seems to me to be conceptually separable and thus protectable. If it is, then a court would have to compare the two, filtering out unprotectable elements (e.g., the leaflike stuff is green). From these photographs, I think it’s clear that the print is not a mechanical reproduction, but I also think there’s a colorable infringement case (not too different from Boisson, for example). Of course, it’s tough to get into the substantial similarity tests with this quality of photograph.

I think this similarity is what accounts for the outrage the two pictures above might excite, and I’ve counted this as a rare instance where copyright law agrees with my instincts. I’ve also, until now, assumed that the scènes à faire doctrine and filtration would prevent overuse of this line of attack in cases where the original print is unprotectably basic or the two prints don’t share protectable elements. Thanks to Fortune, I’m now aware of a goldmine of cases on this topic, perhaps even enough to make some broader conclusions.

Unfortunately, most of the goldmine is caged up inside PACER. It would be quite a project (and quite an investment, even with very careful querying) to RECAP them all. Several of the cases have been reported in California Apparel News, others on the the firm’s blog, but these are the cases that go furthest along the litigation path, hardly a fair sample.

Here are a few lovely fabrics from Mood showcasing long-time classics of textile design. Here’s hoping no one is suing over this sort of thing:

I’ll close with the resources I have found on a small set of the cases:

Finally, here’s an interesting (but very salesy) article with a lot of the raw numbers on fashion copyright litigation.

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