Professor, University Libraries, University of Louisville
The basic questions:
1. Is the work copyrighted at all?
2. How do you plan to use the work?
3. Is the work covered by a license?
4. Does the law contain a specific exception allowing your use?
5. Will I need permission from the copyright holder?
Issue around some of these questions (numbering below not related directly to the numbering of the list above)--
1. You have to figure out if you even have a problem--if it's not copyrightable (example: US government documents), you don't have a problem at all.
2. How DO you plan to use the work? Key to the entire issue.
3. Permission of copyright holder? Good to ask, at the least.
4. Limitations on Exclusive RIghts in US Copyright Law:
Sec 107 - fair use doctrine
Sec 108 - libraries & archives
Sec 109 - transfer of copies
Sec 100 - performances & displays
See also www.copyright.gov
5. Students approach Sec. 107 the four fair use factors as
acronym PANE
Pupose and character of the usue
Amount of the protion used
Nature of the copyrighted work
Effect on the value or potential market
6. Guidelines for classroom use--not the law, but some organizations use them; they tend to be "publisher-centric"--publishers have long been involved in copyright "conversation"; these guidelines are narrow, in that context
7. Case: Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
Memoirs of Gerald R. Ford, president, on A Time to Heal: The Autobiography of Gerald R. Ford
7.1 many First Amendment issues; still, the court found for Harper and against Nation
7.2 "when does idea become subsumed into the work?" (publishing is key)
8. Case: Sony Corporation v. Universal Studies, 464 U.S. 417 (1984) Sony Betamax case
9.Case: Campbell v. Aucff-Rose Music, 510 U.S. 569 (1994)
9.1 Second Circuit Court (New York) is THE copyright court in USA
9.2 because a "transformative" use, a kind of parody;
10. Case: Basic Books v. Kinko's, 758 F.Supp. 1522 (S.D.N.Y. 1991)
10.1 about making "course packs"--answer: course packs are NOT fair use; in decision, an issue, the professor does't go in and make it; rather, the vendor sought out the professor; Kinko's a "bad faith defendent"; left open the issue that a noncommercial entity like a university COULD make a course packs; issue "purpose and effect"
11. Case: Bill Graham Archives v. DK Ltd, 448 F.3d 605 (2nd Cir. 2006)
11.1 Grateful Dead posters published in book; the decision based on "transformative" idea that the original purpose of the posters was not impinged by the use of the images in a book
12.New issue: Book Goodnight Bush "an unauthorized parody" of Goodnight Moon
13. What about "orphan" works--no one knows who created them, or owns the copyright, off on the Internet especially
14. Prof. Buttler: "Liability is the Death Star?"
14.1 Sec. 504(c)(2)
--who ... employees, nonprofit educational institutions, libraries, archive.
-- what.... requires court to remit statutory damages if you usue good faith and reasonably believe use is fair sue.
-- why ... understanding 4 factors and fair-use evidence "good faith" and "reasonable"
Question--what do you mean "publish"
Answer--see definitions in Sec. 101
Posted by Jay Gillette at April 15, 2009 09:45 AM