Copyright on the International Level

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

One of the benefits of living in a connected world is that we can enjoy creative work from not only our own country, but also from around the world without having to wait for someone in our own country to acquire a license to bring it into and share with our country (although this is still a very common way to legally experience books, music, television, and movies from other countries). But with this ability to experience all of this global work comes a whole new discussion on copyright.

You see, copyright is assigned at a national level by the nation where the copyright holder legally resides. Within that country, those wanting to use or share the artifact have to play within that country’s copyright laws. But when someone outside that country wants to use or share the artifact, it’s not so cut and dry. Countries would have to sort out whose copyright laws prevailed in matters of sharing internationally, up until conventions were established to facilitate sharing copyrighted materials across borders: the Universal Copyright Convention and the Berne Convention (which you have seen named on movies since the US joined in 1989). Note that there is no international copyright, just national participation in one or both of these conventions.

We encounter this in our lives especially on YouTube, where creators can decide to what degree they are willing to be protected. If they want only their own country’s copyright laws to be in effect, they won’t share the video internationally. If they are fine with it, then they will. Some companies and personalities prefer the often stricter protection offered by their national copyright laws, and so they will restrict distribution. Some creators (individual, personality, or company) will find they have numerous barriers to jump through, and will have to wade through international concerns to make their material available globally.

This is effectively what you’re running into when you hop on YouTube or a media site and are informed your region doesn’t have access. There’s often something going on in the copyright, either deliberately selected by the copyright holder or enforced by copyright laws.  The copyright holder may simply not have the right set of rights to make something available internationally. (I can’t confirm this, but based on my own experience as a YouTube creator, videos are internationally available by default. If someone has more experience with this, feel free to leave a comment.)

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Copyright and Orphaned Works

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Today, we’re going to talk about orphaned works. If you’ve spent any time on Archive of Our Own, you may have seen this term as the site has set up an account so writers can break their tie to a story they’ve written, effectively abandoning their rights to it. In terms of copyright, an orphaned work is one that is believed to be under copyright (because we are currently in an environment where all works fixed in a tangible form are copyright protected, regardless of whether or not a copyright symbol is present), but the copyright holder cannot be determined for whatever reason.

As you might expect, trying to work with a work that has been deemed “orphaned” is a nightmare. Because there is no clear copyright holder, there is no one to approach for permission or licensing possibilities. That makes most orphaned works off limits in terms of derivative, transformative, and remix situations. There are conditions where you might be able to work out using an orphaned work, including due diligence to establish a clear copyright holder, acknowledging on the new artifact that part of the materials are orphaned, and making reasonable compensation to the copyright holder if they should suddenly appear. While there have been attempts to get the law modified to include an length of time on how long an artifact can be considered “orphaned” and protected by copyright, Congress has yet to actually sign off on any of them.

All of that said, an orphaned work can pass into the Public Domain the way any other copyrighted work does. If a year of creation can be established, then that year is used to determine when the artifact falls into the Public Domain. At the time of this writing, an orphaned work created in 1923 or earlier is in the Public Domain. (Aritfact’s creation date plus ninety years, to match copyright’s author lifespan plus ninety years rule.)

What this all really means is that if you want to use an artifact created after 1923 with no clear copyright holder, treat it like any other copyrighted artifact, do due diligence, and don’t make bad decisions.

Broadcast Media and Public Domain

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Right around the time I was finishing up Alice’s Adventures in Wonderland, I was watching an Extra Credits episode (I was a bad researcher and did not note the video’s URL.) where they used one of Tenniel’s illustration right next to a Disney clip. It made me wonder: How does anyone determine whether or not a movie or television show is in the Public Domain?

The obvious (to me) answer was: They’d go by the current copyright laws and the last known clear copyright holder.

The actual answer, it turns out is far more complicated, simply because of the changing nature of copyright law (although being unable to identify who holds the copyright free and clear also causes headaches. This is such a thorny issue, in fact, that there is no official list of movies or television shows in the Public Domain, and most legal sites who have made such an attempt or consulted on a site trying to make such an attempt have included a note that those looking to use a movie or television show thought to be in the Public Domain should consult with a lawyer.

Some movies have legitimately come into the Public Domain, their copyrights expiring according to the copyright law of the time. Any television show thought to be in the Public Domain (because major revisions to copyright law in 1976 and 1989 have really muddied this matter) are potentially in the Public Domain because the copyright was renewed improperly, dropping the show into the Public Domain, or because there was no copyright symbol on the show. (This is a great quick reference on the tip of this iceberg.) Interestingly, some shows are only partially eligible for Public Domain because some of their episodes contain elements that are still copyrighted.

Really, I think looking at how copyright laws have affected movies and television is a really interesting study in both copyright law and how it affects artifacts over time.

Copyright and Open Source

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Because I have known open source devs and Ubuntu is my favorite O/S, I thought it might be interesting to take a look at how open source and copyright work together. Open source is actually a licensing mechanism developed to allow sharing of software within the constraints of current copyright law, but it effectively functions like a really permissive Creative Commons license.

Open source allows a software developer to release their software to be implemented, modified, and distributed free of charge by other developers and users. This can be great for getting more people to use your software (or operating system, in the case of Linux). It can also be great for collaborating loosely with other developers, as long as they operate within the parameters of the license.

 

Some great resources if you’d like to read more about open source

Copyright and Public Domain (Death Not Necessarily Required)

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

I’ve been throwing around a term that I keep promising to discuss, and today’s that day. We’ve discussed copyright, Creative Commons, and Fair Use. Now, let’s look at what I consider the fourth leg to this discussion: Public Domain. When an artifact is in the Public Domain, there are no copyright restrictions on it. You can modify, perform, transform to your heart’s content. You can even monetize your creation.

It sounds great, right? Where do I find these mystical copyright-free artifacts?

Well…it’s trickier than it looks. Because copyright laws change, Public Domain criteria change. Because copyright holders often have estates (or family), an artifact’s journey into the Public Domain can endure a few hiccups along the way. (In some cases, a copyright holder’s estate or family can legally extend a copyright.) Because that’s just how some copyright holders function, Public Domain can be abused or extended without a clear right. (Can anyone sing “Happy Birthday to You” in a performance situation? That’s still one of my favorites.)

I could try to offer you some sort of hard and fast rule, but the simple fact of the matter is: There isn’t one. The best place to start if you’re trying to determine whether or not something has entered the Public Domain is this rather long and hard to slog through chart. If the artifact appears to be in the Public Domain according to this chart, then actually go research the artifact’s copyright…just to be safe. (I’m a big believer in going above and beyond in your due diligence of pursuing whether or not something is in the Public Domain, just because it’s such a sticky issue.)

The one hard and fast rule I can offer is this (and we’ve discussed this before): Just because something is posted to the internet or published in a library book, that doesn’t mean it is in the Public Domain. This is perhaps one of the biggest myths about Public Domain. Remember from our earlier discussions that copyright is conferred at the moment something is fixed into a tangible form, including a digital form. If you’re ever unsure, err on the side of caution and just assume the material is copyrighted. If you’re desperate to use the material, contact the site publisher or the local library and find out. Never just assume. That way lies much agony. Don’t do it. (Is that enough warning for you?)

You may have noticed that the chart says the copyright holder has to have been dead for some period before the artifact they held the copyright for becomes Public Domain. That is often true, but some artists, especially when Creative Commons and remix culture were just beginning to gain traction in digital spaces, released a piece or two of their work directly into the Public Domain because they wanted to make it available to the remix culture and see what came of it. I believe Creative Commons has a section on how best to release something directly into the Public Domain if you’re interested in checking that out. Again, just because a living artist/copyright holder has released one artifact into the Public Domain, don’t fall into the trap of thinking all of their work is in the Public Domain. Copyright is assigned at the artifact level, not the creator/copyright holder level.

So, long story short: Artifacts in the Public Domain have no copyright restrictions on them, but the road to becoming Public Domain is a treacherous and tricky one. If you want to use Public Domain artifacts, do your homework thoroughly to make sure it is actually in the Public Domain. Always err on the side of copyright if you aren’t sure. Don’t invite disaster on your head. Fair enough?

Fancraft: A Copyright Headache

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

If you’ve read this blog for any period of time, you know that I used to write fan fiction, and now I support and encourage fancraft as a means of learning and being part of a community of practice. It’s kind of funny when you think about it, because I don’t normally encourage violating copyright, and that’s exactly what fancraft is. Yes, creators and copyright holders tend to look the other way where fancraft and copyright are concerned, but ultimately those who create fancrafts, regardless of the medium, are violating the copyright holder’s rights, specifically where questions of derivative work and commercialization are involved.

All fancraft is derivative work. Regardless of whether painstakingly recreating every detail of a costume for cosplay, writing fan fiction incorporating one or more fandoms, or producing videos that involve clips, the fancrafter is violating the copyright holder’s exclusive right to create derivative works. In some cases (and those mashup cosplayers are getting out of control…in very entertaining ways sometimes), fancrafters are creating amazing derivative works that really engage with the property. In others, fancrafters are exploring seams between properties as they mash them together. In some cases, the fancrafter is just recreating or responding to the original property. Sometimes, they’re transforming their understanding and relationship with the property, taking their viewers along for the ride.

Some fancrafters sell their derivative works. Remember, commercialization of a copyrighted property is a right granted solely to the copyright holder. Some copyright holders do not support commercialized fancraft, and let the fancrafters know…sometimes in unfriendly, legal ways. Some are fine with it, to the point they see it as a flattering response to their work and the property. There are cases, more and more, where arrangements are made to allow fancrafters to legally create and profit from their fancraft.

There are some fancrafts, usually limited to fanzines, blogs, and videos, that actually fall under Fair Use. These writers, bloggers, vloggers, and satirists are utilizing some part of the copyrighted material to report on, criticize, or conduct research. However, even this is a rocky ledge with a lot of loose rocks. It’s a short step from utilizing almost too much of the original in your satirical criticism to profiting from your work.

So…long story short: Except in situations where a copyright holder has given explicit permission, fancraft is the most amazing copyright violation. Practice with pride….and extreme caution.

Copyright in a Remix Culture

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Remixing has become an important part of our culture. We learn through remixing. We comment through remixing. We share inside jokes through remixing. We entertain through remixing. If you’re at all familiar with Kirby Ferguson’s “Everything’s a Remix“, you know that remixing is actually not a modern concept. We just seem to have the most sarcastic sense of humor about how we approach it.

For those unfamiliar with the practice, remixing is when you take a sample (or a number of samples) from one or more sources and put them together in a new creation. If you’ve been reading this entire series, that statement probably just triggered a number of thoughts. Remixing, like adaptation and fan fiction, is a treacherous path to go as a creator. Where some creator/copyright holders are flattered to be sampled in a successful remix, others are very protective of their copyright and have no trouble expressing that to remixers.

The problem is, the material being sampled is often under copyright, and not all remixers think to check out the copyrights of their samples or to pursue proper permissions. Even worse, some remixers take a sample they know is copyrighted, and try to claim Fair Use. If they can get explicit permission or a license to use the sample, that’s the best outcome. If they can find Public Domain materials to sample, they’re in the clear. When they try to claim Fair Use, they’re often on the same shaky ground fancraft creators are.

Remember that Fair Use allows for a minor portion of a copyrighted artifact to be used for specific reasons, including education and critique. If you can prove your remix falls under either of those categories, you might stand a chance. If you make a profit off the remix, you won’t.

I realize I sound like I’m bashing remixers, but I’m no more against them than I am against fancraft creators. In so many cases, it’s an honest artist who doesn’t understand copyright (when it’s so easy to educate yourself). I do think remixing is a great learning opportunity and it provides an interesting venue for analyzing and criticizing material. There are a number of YouTube channels that prove this on a semi-regular basis.

Remixing has its place in our culture, but it’s a copyright landmine that has to be approached with care and respect.

Copyright in Adaptations

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

It seems like every time we turn around, we hear about another book or comic book being adapted into a movie or television show. Is nothing original anymore? (No, and it hasn’t been in a long time.) However, adaptations are one of those situations where copyright comes heavily into play.

Adaptation is when a story exists in one medium, and then is retold in another medium. For example, X-Men originally existed as a comic book. But over the years, those stories have been adapted into at least different cartoon series and an ever-expanding list of movies. To the best of my knowledge, there isn’t a single X-Men cartoon or movie that presents an original X-Men story never before seen in a comic book. X-Men is a poor example, though, because copyright holder Marvel has had a pretty heavy hand in each adaptation. We’d run into a similar problem trying to discuss Harry Potter, where JK Rowling has been involved with the adaptation process as her books became first movies, and then a website.

But then you look at a property like Avatar: The Last Airbender, whose first season was adapted into a movie at the discretion of copyright holder Nickelodeon without really consulting the creators. (I am aware both Konietzko and DiMartino have said Shyamlan occasionally asked them questions, but it was very clear that their vision was set aside for Shyamalan’s.)

In some of these cases, it was the copyright holder engaging their right to remix and create derivative works. In others, the person wanting to create the adaptation had to license the property from the copyright holders. Where it’s a copyrighted creation being adapted, licensing is about the only way a non-copyright holder can play with a favorite property legally.

But what if the material being adapted is available under a Creative Commons license or in the public domain (and I promise, we will get to that)? Then that makes things easier, as we have seen from the countless Shakespeare adaptations we’ve all been subjected to (or genuinely enjoyed)…as long as the conditions are followed for properties licensed under Creative Commons.

Fair Use: The Economic Impact on the Original Work

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

The fourth, and final, criterion of the Fair Use doctrine is typically the make-or-break point for whether or not a new creation will be granted Fair use protection. And for good reason. It looks at how the new material impacts the earning power of the original material. Basically, if your new creation will seriously impede the original creator’s income, Fair Use is no longer part of the equation.

For someone in a reporting or scholarly position, it’s easy to tell yourself that you’re not affecting sales with your work. You may even tell yourself that your work will bring the original copyrighted material to more people’s attention, and therefore you’re really just doing some free marketing (even if you yourself are profiting off the new creation). This isn’t much different than the points of difference conversation; you’re lying to yourself to make yourself feel better about doing something you know you shouldn’t be. If your reporting, reviewing, or scholarly presentation fails any earlier criterion, then it most likely will fail on this one, too.

That said, you can pass on every other Fair Use count, but fail here. Copyright exists to protect the copyright holder, and so does Fair Use.

Unfortunately for creators, courts look at the amount and significance of content used in new material, not the tone. That means someone can write a negative review of the copyrighted material, using non-significant clips to make their point, and not violate the original material’s copyright. (It often amazes me how many authors don’t understand that difference, and how many book reviewing sites are starting to bow to authors’ ignorance on this point.) While the negative criticism may adversely impact future sales, the criticism itself does not necessarily infringe on copyright. I can’t say that loudly enough.

So, there you go. Fair Use, and its four criteria. It’s not easy to prove for a very good reason. If you’re unsure, check out the resources I added to the first Fair Use post.

Fair Use: The Proportion of Original Work Used

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Today, we tackle the third criterion of the Fair Use doctrine: the amount and substantiality of the copyrighted material used in the new material.

The amount of the original used is pretty straightforward. If you use the entire copyrighted work, you need a license or legal permission. If you aren’t, then courts will review how much of the original copyrighted work you are using against how you’re using it and why you’re using it. For those who enjoy gaming systems, there really is no magical number here; it really does depend on how you’ve met other Fair Use criteria. I’ve seen people try to claim “points of difference” (enumerating the ways your work deviates from the original), but there’s no actual law supporting that. If you find yourself trying to argue points of difference in your work, stop. The only reason someone does that is because they know they’re in the wrong and trying to assuage their guilt. Your best options are to make right what you know is wrong, or to drop it and move along.

Substantiality is a bit more challenging, and not just because that’s a hard word to say…or type out, for that matter. What’s really being looked at here is how important or significant is the selection from the original copyrighted material. If your material is incorporating the most important or significant parts of the original, you’ve created a situation that threatens the original’s market value (which we’ll cover in the next post). If someone can see the best parts of the original in your new creation, why would they need to see the original? You’ve effectively just spoiled it for them.

The best advice I can offer here is: If your gut is telling you you’re doing it wrong, you probably are. Stop. Take a step back from your work. See if there’s another way to accomplish your goals without violating someone else’s copyright and without trying to turn yourself into a whiny victim.