Episode 47- Hysteria Inducing Copyright Talk!

By Damien Newbie Writers Podcast Comments Off on Episode 47- Hysteria Inducing Copyright Talk!

Episode 47 Copyright

Copyright and the right to copy

**Warning: Long post ahead!**

New writers often ask if they should copyright their work before sending it out to agents or publishers. One of my clients worried that her e-book could be copied and distributed without her permission.
She should be so lucky.
In the US, copyright is automatically extended to “any tangible medium of expression” which includes literary, musical, dramatic, pictorial, pantomimes, motion pictures, sound recordings, architectural works, and the the angry rock my youngest son painted in a flurry of creative output that included a hand worked lizard and a structure of dubious integrity built entirely with popsicle sticks.
So, as an author, as soon as you put your deathless prose to the screen, paper, foolscap, train car, overpass, you are covered. In the US, everything you write is copyrighted, but do you own all those words? Consider how difficult it is to be entirely original. It almost impossible to hold a conversation is not burdened with other people’s phrases, terms, brand names or ad slogans.
We repeat what we hear, and the more we hear a phrase or slogan the more likely we are to repeat it, not only in our daily conversation but in our art as well. Years ago, that was the point. Ad campaigns are still considered successful if they go viral and everyone talks about.
But then we start using those same words and phrases in our art, our blogs our novels.

And at the corporate level, the game changed. There is a wavy, skinny line that divides the hope that the ordinary word refreshes will conflate with an image of Diet Coke, and suing an artist for painting repeating patterns of that same coke can, naming it Refreshes and selling for profit. I am one of those artists who believes that procurement and use of a corporate image or phrase is the tax for it’s iconic status.
Or more to the point, do they want to be a household name or not? More importantly, do they want the brand, both the object and the image, to last?
Because the only way to make sure anything lasts is to allow its use, not protect it into oblivion.

http://www.copyright.gov/

Is there a legal fine line or even a thick black demarcation between the artistic inspiration and plagiarism that violates current copyright law?
In the age of simlies what does copy and influence mean?
Don’t just steal the style, steal the thinking

From The art Instinct, Denis Dutton –
Plagiarism is hard to bring off with any public art, because sooner or later any generally available source is likely to be noticed. (This explains why most plagiarism occurs not in the area of public art but in private, largely perpetrated by students against their teachers.)
Just as Walt Disney could take inspiration from Buster Keaton’s Steamboat Bill, jr., the brothers Grimm, or the existence of real mice, the photographer should be free to capture an image without compensating the source. Jonathan Lethem, the Ecstasy of Influence.
Here is the challenge in our current world: Originally, as Jonathan Lethem points out in The Ecstasy of Influence,

Prompt:

What are your three favorite stories in your life? List them and write them one by one.
Thank you to Linda Joy at National Association of Memoir writers

Word of the Week:

www.worldwidewords.org

HIGGLEDY-PIGGLEDY
Do you recall the 1962 song about the itsy-bitsy, teenie-weenie, yellow polka-dot bikini? The English language loves this kind of repetition. Linguists call them reduplicative compounds, but they’re also sometimes called ricochet words or vocal gestures. They’re paired words that differ either only in a vowel (tittle-tattle, tick-tock, pitter-patter, mish-mash, shilly-shally) or a consonant (hoity-toity, lovey-dovey, helter-skelter, argy-bargy, pell-mell, and the infamous nitty-gritty). There are dozens of them. Many, especially the rhyming ones, seem to start out in childhood, perhaps because children find them easy to remember.
Our word this week — meaning confusion or disorder — is a good example of this rhyming sort. It was first recorded at the end of the fifteenth century in a number of different forms. There was a simpler version recorded at the same time, higly-pigly, which suggests the second part may be from pig, with the word evolving through the sequence pig to pigly to higly-pigly, and so to our elaborated version with the extra syllables inserted to create a jog-trotting rhythm.
Talking of rhythm, many subscribers have pointed out that it’s a good example of a verse shape called a double dactyl (a dactyl is a stressed syllable followed by two unstressed syllables; it’s named after the Greek word for finger, whose joints represent the three syllables). Another double dactyl is idiosyncrasy. Carolyn Dane and others told me about a poetry game that was described in a book of 1967 entitled Jiggery Pokery (yet another example) by the American poets Anthony Hecht and John Hollander. They described a verse form that’s as strait-jacketed as a limerick (whose name is a single dactyl) but even more complicated and arcane.
But why pigs? Well, they are conventionally considered the most dirty of animals, which would provide a sufficiently dismissive description of disorder — if you’re ever tempted to refer to a teenager’s room as a pigsty, you’re using the same idea. However, the Oxford English Dictionary suggests it’s more likely to have something to do with “the disorderly and utterly irregular fashion in which a herd of these animals huddle together” (Nathaniel Hawthorne used that image in his American Notebooks: “Pigs, on a march, do not subject themselves to any leader among themselves, but pass on, higgledy-piggledy, without regard to age or sex”).

Shout outs:

The Diamond Club: http://www.tumblr.com/tagged/the-diamond-club
Ciara Ballintyne: New book club, Club Fantasci http://clubfantasci.wordpress.com/

Actual copy from the US Copyright site:

§ 102 . Subject matter of copyright: In general28
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
§ 103 . Subject matter of copyright: Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
106A . Rights of certain authors to attribution and integrity39
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
(c) Exceptions.—(1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).

§ 107 . Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Thomas Jefferson “Favored providing just enough incentive to create, nothing more, and thereafter allowing ideas to flow freely, as nature intended.” But this concept has been steadily eroded “by those who view the culture as a market in which everything of value should be owned by someone or other. The distinctive feature of modern American copyright law is its almost limitless bloating . . . every creative act in a tangible medium is now subject to copyright protection.”
Indeed, he is right, the way the current copyright laws stand,
in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

Ciara’s Help Below:

In the US, ‘fair use’ of intellectual property is not copyright infringement. There is no definition of fair use. Instead, fair use is determined by reference to:
Purpose and character of use e.g. commercial use is far less likely to be fair use than personal or charitable use. Also, a use that builds upon the original work, instead of just reproducing it, is more likely to be fair use. An educational use may outweigh commercial use, but an educational use is not a guarantee of a finding of fair use;

The nature of the copyrighted work – factual works may be more freely reproduced than fictional works;

The proportion of the copyrighted work used i.e. if it’s a substantial portion – a line or two of as book, as compared to nine of that book’s ten chapters. The latter would be far less likely to be fair use, although even an entire reproduction may still be fair use – it’s just less likely. Substantiality may also be a question of the importance of the parts extracted rather than the amount – if the most significant parts are extracted, that is less likely to be fair use. Australian courts agree with this latter ruling.

The effect of the use on the market or value of the copyrighted work i.e. if it devalues the work or reduces demand, it’s less likely to be fair use. The US courts regard this as the most important factor. Any use that supplants/appropriates part of the market will not be fair use.

You could decide that your use of copyrighted material is fair use, and that doesn’t stop the owner bringing court proceedings, and the court could well decide it’s not fair use. The determination is on a case by case basis, and unless you’ve got a court ruling that says it is, your view is subject to challenge. In reality, most people would settle out of court for cost reasons. I expect lawyers would offer opinion (for a price) on if a use was fair use – this protects the recipient of the advice to the extent if they are sued, and the court finds against them, they can then sue their lawyer, who has professional indemnity insurance to pay the claim.
Unpublished work can be subject to ‘fair use’, however it is much more difficult to prove because the work is not publicly available. The Australian High Court agreed, stating that the absence of consent, express or implied, for the circulation of an unpublished work for the purposes of criticism or review would ordinarily be an important factor in deciding whether there had been a fair dealing.
In Australia, fair dealing only applies for certain purposes. In these cases, a fair dealing of certain copyrighted material for specified purposes is not an infringement of copyright. The purposes are:
Reproduction of a literary, dramatic, musical or artistic work for research or study, or a literary work for the purpose of study by an enrolled student of an educational institution;
Criticism or review of a literary, dramatic, musical or artistic work, provided sufficient acknowledgement of the work is made.
Dealing with literary, dramatic, musical or artistic work, for the purpose of parody or satire;
Dealing with a literary, dramatic, musical or artistic work, for the purpose of reporting news. Note only certain kinds of media outlets are permitted. The playing of a musical work in the course of news reporting is not fair dealing if it doesn’t form part of the news being reported i.e. you can’t rely on this to play background music to the news;
Anything done in or part of reporting on a judicial proceeding in respect of a literary, dramatic, musical or artistic work, or done for the purpose of the giving of professional advice by a legal practitioner, patent attorney or registered trade marks attorney.
For the research/study purpose, to be a fair dealing, consideration must also be had to the following factors:
the purpose and character of the dealing – Australian courts have assessed this along the same lines as US courts, but have not yet considered if reproduction for commercial research and development is fair dealing;
the nature of the work or adaptation;
the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
in a case where part only of the work or adaptation is reproduced—the amount and substantiality of the part copied taken in relation to the whole work or adaptation – Australian courts have held that the reproduction of the whole amount is not fair dealing.
These factors do not apply to any other fair dealing purposes besides research or study – this differs from the US in that the fair use factors are always applied. The factors are the same in the US and Australia, except the third one in the above list, which does not appear in the US.
However, the legislative history to the US Act suggests that the availability of a work to the potential user is an important factor in determining fair use. If the work is out of print and unavailable for purchase through normal channels the user may have more justification for reproducing it than in the ordinary case, but the existence of organisations licensed to provide photocopies of out-of-print works at reasonable cost is a factor for a court to consider. As this is in ‘legislative history’, it’s not part of the law, but is usually something courts would have regard to. The Australian law may be more generous because the work must be available within a reasonable time at a reasonable commercial price.
Fair dealing also appears to differ from fair use in that it only applies to literary, dramatic, musical or artistic work, whereas in the US it applies to literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, and sound recordings.
There is an additional provision in Australia which a reproduction, for the purpose of research or study, of a reasonable portion of a work. The reasonable portions are prescribed:
A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages
(a) 10% of the number of pages in the edition; or
(b) if the work or adaptation is divided into chapters—a single chapter
A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work
(a) 10% of the number of words in the work or adaptation; or
(b) if the work or adaptation is divided into chapters—a single chapter


 

  • Share:
Visit Us On TwitterVisit Us On FacebookVisit Us On Google PlusVisit Us On YoutubeCheck Our Feed