Back in March, I discussed the basics of copyright law, specifically touching on what is required for something to be copyrighted. Putting the law in perspective, I provided a real-life example of a copyright case, Brammer v. Violent Hues Productions, LLC. In this article, I will dive further into that case in order to touch on the exceptions to copyright protection and share tips on how you can avoid copyright infringement on the Internet.
As a reminder, the case Brammer v. Violent Hues Productions, LLC primarily centered around the film production company, Violent Hues Productions, LLC finding Brammer’s photo and using a cropped version of it on their website, novafilmfest.com.
EXCEPTIONS TO COPYRIGHT PROTECTION: PUBLIC DOMAIN & FAIR USE
The most clear-cut exception to copyright protection is the public domain. A work that falls into the category of the public domain is owned by the public and not by an individual author or artist, and therefore anyone can use the work without obtaining permission. But how do you know if a work is in the public domain?
According to Stanford Libraries’ Copyright & Fair Use site, there are four main ways that works can become public domain, including:
- the copyright had timed out or expired,
- the copyright was not renewed properly,
- the copyright owner has chosen to put the work in the public domain, or
- the type of work does not qualify for protection by copyright law.
As of 2020, all works published in the United States before 1925 have had their copyright protections expire. In 2021, works published in 1925 will expire as well, and in 2022, works published in 1926 will expire, and so on. However, for works published after 1977, copyrights do not expire until 70 years after the death of all authors.
Copyright Renewal Failure
“If a work was first published before 1964, the [copyright] owner had to file a renewal.. during the 28th year after publication,” according to Stanford Libraries’ Copyright & Fair Use site. Unfortunately, if renewal was not filed, the copyright protection then went away. This means there are likely many works published in the United States before 1964 that are in the public domain. Thus, if you are wanting to use a work published before then, you could check the Copyright Office records to determine whether or not a renewal was filed for said work.
Author Placement in the Public Domain
An author can forgo copyright protection by dedicating their work to the public domain. Generally, in these cases, the work will explicitly state that this is the case. Be aware though, the copyright owner must be the person to make the dedication, as they are the only ones who have the right to do so.
Some Works Are Not Protected by Copyright
Certain types of works are not protected by copyright such as facts, ideas, or theories. Additionally, the titles of books and/or movies, as well as short phrases, are also not covered by copyright protection (Stanford Libraries’ Copyright & Fair Use site).
In the case, Brammer v. Violent Hues Productions, LLC, Violent Hues claimed that they made fair use of Brammer’s photo. Fair use is a possible exception for copyright protection, but it involves a test in which the court considers four factors together. The four factors considered are:
- (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 first factor might just be the most important indicator of fair use, as it can outweigh the other factors in some cases. It considers how transformative the new work is compared to the original work and whether or not value was added to the original. Without transforming the material, adding value by creating new information, aesthetics, or meaning, or providing some sort of public benefit, the use of copyrighted material will fail the fair use test almost every time. Some notable examples of types of works that are transformative and pass this factor are parodies, research, and educational works. Additionally, the first factor also considers if the use was for profit (commercial) or nonprofit. Commercial uses that exploit the original work for monetary gain without any transformation are likely to weigh against fair use.
The second factor focuses on the nature of the copyrighted work, such as whether it is a factual or fictional work or a published or unpublished work. You’ll have more leeway in terms of fair use when using material from a factual work that is already published.
The third factor considers how much of the original, copyrighted work you are taking and how substantial that portion is to the original work. The less you take the better change of a fair use defense standing in court. However, you have to be careful not to the the “heart” of the work, or in other works, the most memorable part of the original work, as that will land you in hot water. The only exception to utilizing the “heart” would be if you were creating a parody, as often the heart is what the parody is poking fun at in the first place.
The fourth and final factor delves into whether the use takes away or impedes the copyright owner of income or a potential market for the copyrighted work. If the owner loses any income, then you are in trouble, even if your work is not competing directly with the original work.
After considering the four factors of fair use, the court found that Violent Hues’ use of the Brammer’s photo had minimal changes to its original content and context, and therefore, it was not transformative. This along with all other factors weighing against fair use, led the court to rule against a finding of fair use. Ultimately, Violent Hues was found to have infringed on Brammer’s copyright.
WHAT CAN YOU DO TO AVOID COPYRIGHT INFRINGEMENT?
There are three main things you can do to avoid copyright infringement, especially when it comes to images or other works on the Internet, according to Stanford University: “assume [a work is] protected,” “read click-wrap agreements,” and “when in doubt, seek permission.”
- Assume a Work Is Protected
As previously mentioned, you can’t assume that just because something is on the internet or doesn’t have a copyright notice that it is in the public domain or is free for you to use. You can’t be sure about using a work unless it is clear and explicitly stated that it is free for commercial use or in the public domain. By assuming a work is protected, you protect yourself as well.
- Read Click-Wrap Agreements
Many works have terms and conditions included in the form of click-wrap agreements or “Read Me” files that accompany materials on the Internet. Reading these terms can help you to better understand what you can and can’t do with the files you intend to use. As long as you adhere to the permitted uses, you should be able to avoid legal action.
- When in Doubt, Seek Permission
If you are unsure about the copyright status of a work you want to use, and you can’t find anything laying out the permitted uses, it is always best to reach out to the copyright owner to get permission before using their work. This will help you avoid future lawsuits. And remember, written permission is always better than oral permission, as it will be easier to provide evidence of if needed.
If Violent Hues had taken these precautions, they likely would not have ever been tried for copyright infringement for using Brammer’s photograph.
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