Copyright law is a dank and murky place to go, but there are a number of reasons for trying to see our way through it. It's not much fun to be sued or even just told to wipe your laboriously created Web pages off the Internet. You, as an author or artist, won't be happy to have your work stolen either. Digital technology has vastly increased the problems of copyright, as works can be copied and changed so easily. Terms like 'originality”, “fixed media”, and “fair use” are slippery, and often open to interpretation.
A strict interpretation of copyright law might give the following scenario. If you were a graphic designer for this year's hot new video game, called Swimming Among the Sharks, and you might decide that a photograph by the artist, Barbara Kruger, would be perfect for the title screen of your game. You might first be tempted to acquire such a photo by scanning it into your computer from a book. Then you might alter it in Photoshop to make it a little 'more clever and original'. After embedding the photograph into the programming of the video game, you display it over the Internet and sell that game for an astounding sum of money.
Actually it doesn't matter whether any money was made or not. These are the different areas of copyright law you would be breaking or “infringing”.
• Reproduction rights of the copyright owner, by scanning the photograph.
• Modification rights of the owner, by altering a copyrighted photo in Photoshop and adding it to the game to produce a new work.
• Display rights of the owner, by showing the demo of the work to the public over the Web or by some other means. If the artistic work in question was a play or a choreographed dance, you would be infringing upon public performance rights.
•Distribution rights of the owner, by offering the game for sale.
Short Definition of Copyright Law
The federal copyright law protects “works of authorship”, including music, drama, dance, visual, and literary works. Only the holder of a copyright can legally reproduce, modify, distribute, publicly perform, or display the work. Since 1989, copyright protection is automatic when the work is original and “fixed” in a tangible medium. Registration with the federal Copyright Office is now optional. Copyright protection for individuals lasts the life of the author plus 50 years. The copyright term for businesses, which own the copyright of a “work for hire”, is the shorter of 75 years from the date of the work's first distribution or 100 years from the date of creation. Each separate act of copyright infringement can cost up to $100.000 plus attoney fees.
Rules to Follow for Copyrighted Works
To acquire the use of copyrighted material, write the author or company for a license.
• Giving credit to the work's author prevents you from plagiarizing (a subject dear to teachers' hearts), but not from copyright infringement. You still need that license.
• Works created after March 1, 1989 don't need to have a copyright notice, such as, © C. Cheal, 1997. Even if such a notice is missing, the work is still protected.
• Even a small amount of the copied work needs a license if it's of great importance to the overall work. However, extremely small quotations of a sentence or two are not protected. In the visual arts, however, usually the entire artwork or photograph is used.
• Altering someone else's work doesn't prevent copyright infringement, but increases your fault and liability.
•Most of the material on the Internet, even though it's ephemeral, free, and easily accessible, is under copyright law, regardless of whether or not it is labelled as such.
• If you use copyrighted material and don't make any money from it, eg. personal homepages on the Web, you still must get permission first for the material.
• Historical artworks in museums, particularly those pieces older than 100 years, are in public domain and therefore may be freely copied by sketching them. The photographs of those artworks in published books, and the slides sold by the museum, however, are copyrighted by their photographer. You may pay for a license, which is often limited to scholarly publications, for a photograph by contacting the museum. Many museums and galleries won't let you personally take photographs of their holdings. Of course, you are free to use your own photographs of outdoor sites and historical sculptures.
Luckily for teachers and students, there are exceptions to these rather stringent rules. Public domain works are free for anyone. In addition, factual material or an idea can't be copyrighted. A third exception, “fair use”, means that you can make use of the work if it's for the greater public good.
Works are in public domain if the author expressly states that the material presented is in public domain or once their term of copyright has expired. You can be fairly sure that anything older than 100 years is in public domain. For anything younger, it all depends and must be checked out, since the rules have undergone many changes in this century and vary from country to country.
You may copy any specific facts from copyrighted works, although it is polite and for scholarly considerations often necessary to give credit or footnote the source of those facts. No one can claim originality, a necessary quality determining copyright, for facts. Even ideas, like the general plots of plays can't be copyrighted. Often, however, there is a fine line between the idea behind a work and its actual copyrighted expression.
Fair use purposes are typically non-profit, teaching, scholarship, research, critical commentary, and news reporting. Entertainment does not fall under the category of fair use, even with its current abominable tendency to overlap and merge with the news. The four factors in judging a fair use court trial include:
1. Purpose and character of use. Non-commercial uses of copyrighted work,
such as slides photocopied for teaching art history to a university class, are less likely to be judged an infringement.
2. Nature of the copyrighted work. Factual works, like the phone book, are public information and so less of a problem than creative works.
3. Amount of the copyrighted work used. Guidelines at some universities, for example, state that one chapter of a book or 5 images by one artist may be photocopied for coursepacks.
4. Effect on the potential market through use of the copyrighted work. An example of infringement might be the loss of income to a textbook publisher, if a professor were to photocopy all of Janson's History of Art and hand it out to students. Publishers seem to feel this is the most important issue. At least it is the one most likely to lead to litigation.
History of Copyright Law
One of the oldest cases concerning copyright concerns St. Columba, an Irish missionary who founded Londonderry in 546. He was tried for handcopying a Latin Biblical work. The judge and local king, stated, “As the calf belongs to the cow, so the copy belong to the book.” One suspects the king of possessing an ironic sense of humor, since books at that time were written on vellum, the hide of a calf. Bookmaking, in general, would be a matter of some loss to the mother cow. In the end, whatever the rights of the cow, the owner of the book retained his copyright and St. Columba moved to Scotland.
Once the printing press was invented in 1450, one would have expected copyright law to have quickly followed. The first “ownership” laws were written in the 16th century to protect image rights. In 1701, the British Parliament enacted the Statute of Anne, which forbade any unauthorized person from printing or importing another person's book, and created a public domain concept by limiting the term of copyright.
Following the increasing emphasis on individual rights during the Enlightenment, the first mention of copyright in the U.S. was, appropriately enough, in the Constitution. Federal power was given to 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”. (Article 1, Section 8). Congress passed the Copyright Act in 1790.
The concept of fair use was first given a legal basis in the Supreme Court ruling of Folsom vs. Marsh (1841), allowing that George Washington's private letters to be used in a biography of the President without copyright permission from the owners of the letters. The nature, quantity, and value of the material used as well as the degree that use reduces the profit or value of the original were the deciding factors in the judgement.The 1909 Copyright Act was an important revision of the U.S. Copyright Act. More categories of authorship were defined, including musicians, and the term of copyright was established as 28 years, which might be extended for an additional 28 years, for a maximum of 56 years from publication. This gave individual authors more protection.
The next major U.S. revision of copyright law was the Copyright Act of 1976, which extended copyright to unpublished works and gave lengthier terms for copyright protection. Copyright would last from the time of creation until 50 years after an author's death. An employer's “work for hire”would last for 75 after its publication or 100 years after creation. Notice of copyright with a standard of “© Name, Year” had to be placed on all publicly distributed copies. Full protection only came about when the work was registered with the Copyright Office in Washington, D.C. The National Commission on New Technological Uses of Copyrighted Works, which in the government's overzealous use of acronyms became CONTU (not to be confused with the later CONFU), was appointed by Congress to develop guidelines for educational fair use. The guidelines detailed the current four-part test concerning the purpose of use, the nature and amount used of the copyrighted work, and the effect on its market value. This Act states that typical purposes, under fair use, are criticism, commentary, news, reporting, teaching, scholarship, and research.
Since March 1, 1989, copyright has been considered valid even without the formal copyright notice and registration. This was a result of the U.S. joining other countries at the 1988 Berne Convention.
In 1990, Congress amended the Copyright Act to allow prosecution of state universities for monetary damages in the event of copyright infringement. This amendment was deemed necessary since the 11th Amendment to the U.S. Constitution doesn't allow states to be sued in federal courts. Such a legal contradiction has still not been fully resolved, but, as expected, the Amendment did lead immediately to further lawsuits.
The well-known case of Basic Books Inc. vs Kinko's Graphic Corp., (1991), limited the wide interpretation of fair use by educators. Kinko's had copied course packs that included book chapters and articles. These were sold to students. The court judged that Kinko's was at guilty for infringement of copyright and violation of fair use, presumably because it hurt the market value of the books, which students would otherwise be buying. Now photocopy centers must often pay a fee to the copyright holder, dramatically increasing the cost of course packs.
Texaco also lost a case brought against them by American Geophysical Union, a group of six scientific publishers. Texaco scientists had copied research articles from copyrighted journals, without permission. Texaco was heavily fined.
Later cases, however, like the Princeton University Press vs Michigan Document Services, Inc. (1996), made the issue less clear-cut. The Sixth Circuit Court of Appeals allowed the photocopy shop to continue making course packs of copyrighted chapters and to sell them to students under the fair use concept. The significance of these court cases is to highlight the uncertainty of fair use. Guidelines on fair use have no legal standing and are primarily suggestions and interpretations to follow until the law becomes more specific.
Copyright and the Internet
Fair use in the 1970s presupposed that educational copies would be inferior--poor black and white xeroxes of photographs or loose photocopied pages rather than the hard-cover textbook. It often cost as much to photocopy a book as to buy the original. Academic journals and their photographs were often not copyrighted at all, as evidenced by their lack of copyright notification.
The situation has changed. Currently no notice of copyright is required. Typically, publishers of scientific journals own the author's copyright by reassignment. Color photocopying is now much closer to the original. On the other hand, textbooks are often on cheap paper and poorly bound, so differences in quality between originals and copies has lessened. On the Internet, there is no discernable difference at all. A copy of a digitized photograph is, for all practical purposes, the same as its source. In the 1993 case of Playboy Enterprises Inc. vs Frena, the courts found distribution infringement of Playboy's rights, because one of their photographs had been digitized and then downloaded from an electronic bulletin board.
The Internet began as a government research project, developed in 1969 by the U.S. Department of Defense. By 1972, fifty universities and research facilities had connections, which soon led to the idealistic vision of free dissemination of ideas, needed by researchers for the public good. The Internet remained uncommercial until 1991, when it lifted its ban on business. Usage by private individuals and corporations jumped exponentially when the first graphical browsers were introduced.
Since the Internet is not owned or even managed by one central organization, it is hard to regulate. The initial philosophy by many hackers and researchers on the Internet in the 1970s and 80 was that information must be free. One current defender of that idea can be found at the Website, Negativeland. (Http://sunsite.unc.edu/negativland/fairuse.htm) The ever-growing number of Websites and the ease of “cut and paste” software facilities, downloading, sometimes altering material in graphic and word-processing programs beyond recognition, confuse copyright issues even more. The nature of the Internet encourages copying before reading, the combining, recombing, and interacting with colleagues. How “fixed” is this constant change?
A case can be made for inlining, the process of linking another's file so that it shows up as part of your page, as being an infringement of copyright. The very process of hyperlinks, which connect your site to another's work, has also been called into question in the strictest interpretation of copyright. The website, Babes on the Web, rates women on the basis of their homepage photo and provides links. Would you want the taint of someone else's ill-conceived ideas rubbing off on your presentation? Hyperlinks, though, are inherent to the structure of the Net. Without linkage there wouldn't be an Internet. Webpage addresses, URLs, are facts, like any other public address, and as such, they cannot be copyrighted.
In 1993, President Clinton established The Working Group on Intellectual Property Rights to reexamine copyright law in relation to the National Information Infrastructure (NII), i.e., the Internet and digital technology. The Working Group produced the Green Paper in1994 and the final White Paper in 1995. (Found at http://iitf.doc.gov/) These mysteriously named Papers analyzed copyright law and gave recommendations for tighter controls over digital reproduction, which educational institutions and libraries found alarming. Fair use was largely ignored in favor of business interests. A new right of transmission was proposed for copyright owners, which would mean that the very act of viewing a Web page would be illegal unless you had prior permission.
Slide librarians for universities took the stance that a slide of a work of art in the public domain, like the Mona Lisa, is not copyrightable, since the photographer is not creating an original work but a news-like image. Other issues such as being forced to digitize images of copyrighted works at low resolution and allowing only one image per copyrighted artist, seemed harsh measures for institutions with small budgets for art history. These are the primary users of such slide libraries.
Publishers and museums, on the other hand, wanted full control over the art works and photographs they possess, regardless of whether the originals are in public domain. Museum shops and slide vendors usually claim photographic copyright on the slides they sell, and so argued that university image collections hurt their market. In fact, many museums subvert the very concept of fair use by refusing to allow the public to even photograph their public domain, historical artworks. In the past there hadn't been a legal precedent for the copying of images by universities for classroom use, since there would be little chance of monetary gain. Since so many schools and colleges are now using the Internet for visual images, publishers' and museums' fear of market loss may well lead to such a test case shortly.
The Conference on Fair Use (with the unfortunate acronym of CONFU, given the result of the meetings), with members representing approximately 100 organizations of publishers and record companies, as well as educators and librarians, which met from 1994-1997. The final meeting in May 1997 was in Washington. Hoping to clarify fair use in practical terms, the members drafted a set of Guidelines in five areas: Distance learning, Multimedia, Electronic reserves, Interlibrary loans, and Image collections. The Guidelines for Educational Musltimedia state that educators and students may use certain portions of copyrighted works as a basis for study and research in the classroom for a limited period of time, up to two years. The portion limitations are the lesser of 10% or 3 minutes of film, the lesser of 10% or 1000 words of text or 3 poems from one poet, the lesser of 10% or 30 seconds of music, 5 entire images by one artist or photographer or the lesser of 10% or 15 images from a book of collection of images.
Disagreements ensued, due to the fundamentally different priorities of users and proprietors. The Guidelines for Distance Learning, Musltimedia, and Digital Images were stronly oppsed by representatives of schools and libraries. Since there was no concensus, members agreed no to seek Congressional endorsement for the Guidelines.
What solutions are possible to the intense disagreement over copyright and the Internet?
• Negotiation between authors and users. Two and a half years, from 1994-1997, were spent by CONFU and the result was to agree to disagree. The discussion is not over yet. Negotiation will continue to remain the cheapest and most democratic way of resolving issues. A more likely, expensive, and politically-motivated scenario may be additional legislation by the federal government. If the Clinton White Paper is used for the basis of legislation, though, the rights of the educational community will likely suffer at the hands of business.
• Litigation. There is a lack of case law concerning educational institution's creation and use of Websites. The guidelines of CONFU and the reasonable regulations of the University of Texas and Stanford are not law, but worth following in the hope that you won't be sued.
• Web-technology. Encryption codes and required passwords that allow access to subscribers can help to protect those on the Web who want to do certain types of business, teach a private class, or just hold onto their Website elements. Supplying copyright notice forms to give limited rights for linking or copying a site might help. Robot tracking of downloads will certainly be possible as well.
• Education. The public should be educated about copyright law and ethics, with emphases on proper labelling and attribution.
Guidelines for Fair Use of Photographs in Class Project Web Pages
As with all new technology, the bones of digital reproduction and copyright law will be gnawed over for a number of years. Witness the copyright furor about the Betamax in the 1970's, now an obsolete technology. Since I have no wish to be bait for a test case, thrashing the waters between the twin sharks of businesses and institutions, these are the admittedly conservative rules for using images in Webpages. These pages must be designed for the classroom by instrutors or students. They follow the Fair Use Guidelines for Educational Multimedia Guidelines developed in through the CONFU process in1996. (http://www.utsystem.edu/OGC/IntellecturalProperty/ccmcguid.htm)
• Slide scanning. Get digital permission from the vendor for any slides you buy. Fees for slide librarians' permission to scan are $.50-$1.00 for low resolution (Gif) images and in-house use. Direct scans are $3.00-$6.00 per scan.
• Book scanning. If the images are to be used on the Internet for worldwide access, don't scan them at all without permission. There may be several parties involved in the copyright; the publisher, author, and the photographer. (Copyright Clearance Center) But if the images are to be used on the Internet for local network access only, you may scan. Local network means the Webpages can only be viewed by class members and protected by means of a password. These images come under the doctrine of fair use, as long as your Web site is not visible to the public and the material limited. You are limited to less than 5 scanned images per artist or the lesser of 10% or 15 images from a book of variously collected images. There are term limits as well--material may be used in the class for up to two years.
• Hyperlinks. Feel free to use hyperlinks to other pages to illustrate your text. Hyperlinks are relatively problem-free at the moment. If you want
worldwide access for your site, bypass copyright and fair use complexities altogether.
•Public Domain. Some CD-ROMs have public domain photographs of art, although read permission rights carefully. Try a Website by Allan Kohl (http://www.mcad.edu/AICT/index.html) from the Minneapolis College of Art and Design, for a laudable effort at creating a free database of common art images. These images were taken by Kohl and his students.
• Personal ownership. Create your own digital drawings, paintings, or photographs. Outdoor historical sculptures and architecture are not copyrightable, so your own photographs are a good solution. Twentieth-century art, however, is under the copyright of the artist, so you would have to treat these works like book-scanned images.
• Attributions. Always label your digital images. If they are your own, and you have worldwide access, you may make a statement at the bottom of the page as to whether you give up your copyright and place the images in public domain or whether you will retain your copyright. If the images are scanned and you have permission or bought a license, the owner of the copyright must be mentioned in a caption using standard footnote form. If the images are scanned only for fair use in class, you still need to give credit to the source of the image.
Carter, Mary E., Electronic Highway Robbery, (Peachpit Press, 1997).
Goldstein, Paul, Copyright Principles Law and Practice, (Hill and Wang, 1989).
Kaplan, Benjamin, An Unhurried View of Copyright, (Columbia University Press, 1967).
Latman, Alan, Latmans The Copyright Law, (Bureau of National Affairs, 1986).
The Copyright Website (http://www.benedict.com/).
The United States Copyright Office (http://lcweb.loc.gov/copyright/).
The University of Texas Copyright pages (http://www.utsystem.edu/OGC/IntellectualProperty)