Whew! This is part two - the questions were really thoughtful and obviously posed by well-informed folks. To readers: feel free to add your comments to these questions below.
Disclaimer: NOT LEGAL ADVICE - CHECK WITH YOUR OWN COUNSEL
Sarah: Wouldn’t using an image on advertising materials be a new use? The purpose now it to get people to attend an event or use a resource, where the first purpose may have been to inform people (newspaper photo, etc.)
My reply: What an interesting question. Given that we never really know until a case with the exact facts is decided by a court in your jurisdiction, all we can do is look at relevant case law. A case that seems to point towards a negative answer is Infinity Broadcast v. Kirkwood, 150 F.3d 104 (2d Cir. 1999). In that case, a company retransmitted copyrighted radio broadcasts over telephone lines in order to market the broadcasts to advertisers, talent scouts and others. Unlike the purpose of the original broadcasts (entertainment), the purposes of the rebroadcasts were for auditions and to help advertisers verify the broadcast of commercials. The court ruled against Fair Use, citing an influential article by Judge Pierre Leval – that the use of copyrighted material that “merely repackages or republishes the original” is unlikely to be deemed a fair use. Leval, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1111 (1990). This is quite different from the image index case that I mentioned in the webcast. In that case, thumbnail images were grabbed off websites and transformed for a new purpose, an index to the net. Kelly v. Arriba Soft, 336 F.3d 811 (2003).
For a more detailed look at the legal concept of “transformative use,” see Tracey Topper Gonzalez, “Note: Distinguishing the Derivative from the Transformative: Expanding Market-Based Inquiries in Fair Use Adjudications,” 21 Cardozo Arts & Ent LJ 229, (Winter / Spring, 2003). See also Jeremy Kudon, “Note: Form over Function: Expanding the Transformative Use Test for Fair Use,” 80 B.U.L. Rev. 579, (April, 2000).
Janice: Can I use the “essence” of a Dr. Seuss book for a parody to be published on the Internet? What are my rights to create a parody of a Dr. Seuss book (using the “essence” of One Fish, Two Fish) and post to my website?
My reply: Perhaps you know that a similar question was brought before a federal appellate court, and in that case, the user lost the lawsuit. Penguin Books was sued when it published a book about the O.J. Simpson case, along the lines of One fish, two fish, red fish, blue fish. The book substituted the words, “One knife? Two knife? Red knife, Dead wife.” In short, the new book did not actually parody the Dr. Seuss work, but merely took its rhyming patterns to use in order to poke fun at an unrelated topic, the Simpson case. It had no “discernable direct comment on the original.”
This differed from true parody, as set forth in the landmark Supreme Court case, in which rap group 2 Live Crew recorded a sexual innuendo-laced parody of Roy Orbison’s ballad “Oh, Pretty Woman.” The rap version poked fun at the “bland and banal” original. You probably remember the recent Jib Jab version of “This Land is Your Land”…the case did not go to court, and commentators and bloggers focused their discussions on what would likely be the turning factor if it had gone to court: whether or not the new version poked enough fun at the original (i.e. “transformative use” pointing towards “fair use”) or whether it merely used the essence to poke fun at something entirely different (pointing away from fair use). See Dr. Seuss Enters. v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997). Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
Sarah: You mentioned that there is not a court precedent for library use of these items – does that mean that we are generally safe to use what we find? That it’s just better to examine risk tolerance?
My reply: Depending on the context of your question, there may be relevant court cases to consider, even if libraries weren’t involved. The good thing about nonprofit libraries is that if you make a good faith, reasonable fair use analysis, your liability can go down to $0. See an article I wrote, “How I Learned to Love FAIR USE… or how to bring a $300,000 lawsuit down to $0 if you’re a library, archive, or nonprofit educational institution,” at http://fairuse.stanford.edu/commentary_and_analysis/2003_07_minow.html
Jill: I would also like to know about permissions from large groups of people. Is it okay to post photos of library events on the web without permissions from the participants in the photo?
My reply: Okay, you guys may spur me on to finish an article I’ve had on the back burner, discussing the privacy rights (actually, the lack of privacy rights) that people have when they’re in a public place. The presentation is available here, “Say Cheese! Putting Pictures of People on the Library’s Web Page” at http://infopeople.org/training/webcasts/10-17-02_say_cheese.html .
The bottom line is that unless you’re making commercial use of the images, pictures of people at library events are fair game, at least legally speaking. You might take other factors into consideration, such as public relations, ethical concerns. For example, posting pictures of local children could set them up as targets for bad people, especially if the child is a regular at a small branch.
Lorre: Mary, people keep asking me if using multimedia on the web is somehow different from using print. I keep believing that the principles you have reviewed are “technology neutral” and I’m wondering if you think that’s the case.
My reply: It’s true that though fair use factors can be applied to any media. I should note that a series of fair use guidelines have been developed by various sources, and differ significantly by the type of media – in a nutshell these guidelines are much stingier when it comes to multimedia compared to print. See CONFU’s Fair Use Guidelines for Educational Multimedia at http://www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm .
None of the fair use guidelines have the force of law, and institutions that limit themselves to these numbers are minimizing their risk, but also setting artificial ceilings on what could be considered fair use depending on the situation.
Jennifer: If you find that someone is using your original works without permission, what are the steps you can take to stop this from happening?
My reply: Ah, now we switch hats. And the irony of being users is that we are also sometimes creators/copyright owners, who wish to protect our own original works. That’s why at its best, copyright law’s original intent is to foster a balance between owners and users. If you find someone is using your work without permission, first make the assessment, as you appear to have done, that your work is in fact, original expression created by you and set in a fixed medium. 17 U.S.C. § 106.
Be sure to exclude public domain items: facts, recipes, ideas, dedicated works, U.S. government works and works that have expired into the public domain. If someone copied your original work, then you will probably want to send them either a friendly email, or go ahead and send a less friendly cease-and-desist letter (actual examples at http://www.chillingeffects.org ).
You do have the option of filing a lawsuit. To get the big $$$, known as statutory damages, you need to register the work with the Copyright Office. Even though the actual copyright is created automatically as soon as your original work is in a fixed format, lawsuits can only be filed after you’ve registered the work with the Copyright Office. 17 U.S.C. § 411.
Susan: Out of Print materials: If we want a copy of an item in our collection, and we have contacted the publisher who says the item is OP, are we safe in making a copy for the collection from an interlibrary loan item?
My reply: Using the flow chart, you’d first hope that the item is in the public domain, but since that’s not likely, you’d go to the library exception 17 U.S.C. § 108 (the yellow diamond on the flow chart). Is the item one that was once in your collection – that is, do you seek to replace it? Section 108 gives you authorization to make up to three copies of a published work duplicated solely for replacement of an item that is damaged, deteriorating, lost, or stolen if the library cannot find a new copy at a fair price.
If the item is not for replacement, you’d slink down the flowchart and look at the grey diamond, Fair Use. The out-of-print status will help here, in that you can make an argument that you’re not hurting the market for the work (the fourth factor). When you contacted the publisher, s/he may have offered a print-on-demand option, but failing that, you may even try to make the argument that you’re not even hurting the potential market for the book. That’s only one of the four factors, and so you’d also look at the purpose of your use.
Michael: If you commission work i.e. a newsletter format, do you own the work or does the designer own it?
My reply: I suspect you already know the answer, since you had the smarts to ask the question. Many people’s intuition is that if you commission a work, you own the work and the copyright.
This, however, is not the case. In the U.S., the creator of the original work owns the copyright, even if the transfer of the physical object changes hands. The exceptions to this rule are when the work can be legally classified as a “work made for hire.” This is defined as either a work prepared by an employee within the scope of employment, or a work specially ordered or commissioned for use as a contribution to a collective work (subject to various conditions), and even then only if the parties expressly agree in writing that the work shall be considered a work made for hire. See Copyright Office Circular 9 for more detail at http://www.copyright.gov/circs/circ09.pdf .
Sarah: What about using a newspaper photo? Since it is “historical” is there now less risk?
My reply: You’d evaluate each photo one by one. Assuming it’s not in the public domain, and assuming your use doesn’t fall into the library exception in Section 108, you’d be evaluating fair use.
If I understand your scenario correctly, you may have some argument that you’re not harming the market or potential market, but even there you’d want to tread carefully as some newspapers do sell old articles with photos on a pay-per-use basis.
If the photo was taken by a freelancer, there's an additional complication if you're looking at getting permission. The freelancer, not the newspaper, may own the copyright. If the original creator was not an employee of the newspaper, but a freelancer, then she (or her heirs) owns the copyright to the photo, not the newspaper.
You likely know that libraries were hit hard by the Supreme Court Tasini ruling. That ruling clarified that even if the freelancer sold rights to publish a photo or article in print, that the freelancer still held the electronic rights, absent a contract giving express permission to republish electronically.
Rapidly, online databases providers expunged articles, sometimes entire files, to ensure that freelancers’ works were not illegally included. Another route would have been to pay the freelancers for the additional use of the material, but as I understand it, this was the exception rather than the rule. See New York Times v. Tasini, 533 U.S. 483 (2001).
Angela: We had understood that if you linked to another web site, that you should have it open in a new window so as not to frame someone else’s material in your window. Can you comment on this?
My reply: Yes, this is good practice. In the Arriba Soft case, (the image index case that I mention in Sarah’s question), at first the thumbnails linked back to the original source’s site, but used Arriba’s banner and ads. The appellate court sent that issue back down to the trial court.
When you click on a thumbnail at ditto.com (the name of the image index today), you’ll notice that it now takes you to the original source, without the image index banners or ads. Kelly v. Arriba Soft, 336 F.3d 811 (2003).
Although it is not an infringement of copyright to link to someone else’ site (with the exception of knowingly linking to an infringing site), there are still contract and trademark issues to consider. Chillingeffects.org has a very readable FAQ looking at the whole legal picture at http://www.chillingeffects.org/linking/faq.cgi
Kenneth: The subject guides we produce in my academic library – posted on the library’s Web site – are technically owned by the University, but in practice we allow requesters (other universities mostly) to use them freely as long as they attribute them to the author and the University. Are we playing fast and loose with the University’s copyright?
My reply: It would be best to get the University’s permission, particularly since you note that the University owns the copyright. You know, though, even though employers own the copyright to the works created by their employees within the scope of employment, there is a long tradition, at least with teaching faculty, to grant this copyright to the creator rather than to the university. As distance learning grew in scope, many universities began to reclaim these rights. A good history and current look at the status of this “teacher exception” can be found in Elizabeth Townsend’s “Legal and Policy Responses to the Disappearing ‘Teacher Exception,’ or Copyright Ownership in the 21st Century University” at http://mipr.umn.edu/archive/v4n2/townsend.pdf .
Lorraine: Sounds like a school web site can use a graphic here and there that is borrowed from another website?
My reply: Well, yes and no. It depends on the graphic, the use, and when you look at actual liability, it makes a difference whether the school is a nonprofit educational institution or not.
For each use, I’d start with the chart – public domain – breathe easy. Library exception – wouldn’t apply (except for super-old works). Fair use – consider the four factors, but recognize that your risk is exponentially greater when you publish in the worldwide forum of the web than if you print a few dozen copies in a printed newsletter. If you can’t make a good faith fair use analysis, I’d recommend you get permission. Carrie Russell’s book, Complete Copyright: An Everyday Guide for Librarians is a good source for permission seeking at http://www.alastore.ala.org/
Comments