A brief primer on copyright law
May. 11th, 2004 11:17 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
shadowkatAfter wandering about online, I feel this overwhelming need to do a brief primer on copyright law.
People seem incredibly confused about copyright. They get overly protective and feel the need to attribute things that ahem you can't own and aren't copyrightable, while willy-nilly trading and copying stuff that is copyrightable and owned by someone else.
A little background - I administered and managed a copyright, content licensing, and trademark department at a publishing company for six years. I established the copyright policy at the company and served as an information resource on copyright among other things.
Copyright Law, a subset of Intellectual Property Law, particularly in this day and age is confusing.
First off what can be owned? What is copyrightable? Or what isn't?
Ideas - like it or not - are *not* copyrightable. Nor can they be trademarked. Joss Whedon cannot copyright the idea of having a female vampire slayer. He can trademark and copyright the name Buffy The Vampire Slayer, but not the name Buffy itself (people can still call kids and characters Buffy without consulting Fox or ME or the Kuzuis, as long as the character bares no resemblance to Buffy the Vampire Slayer or Buffy in the series BTVS). He can also trademark and copyright the complex mythology he has created around the slayer and what a slayer is - but this does not stop Joe Schmo from doing a series about female vampire slayers as long as Joe Schmo does not use the same mythology. You can't own an idea. Also there is no such thing as an *original* idea. So get the frigging concept of idea ownership out of your brains. Also stop worrying about stealing ideas or others stealing yours. Ideas can't be bottled up. They are floating about like air. Think of ideas like air. Invisible. Can't be copyrighted.
What is copyrightable is the original *expression* of an idea.
Original, creative expression. This can be owned. This is called intellectual property. According to a landmark copyright case called Fiest (I think that's the correct spelling, watch, someone out there is bound to come out of the woodwork and kick me for spelling it wrong). It has to a creative expression that shows work, sweat of the brow, or something unique or distinquished. (For example a listing of phone numbers is not copyrightable.)
So...if I were to say take a screen-shot, manipulate, change it in some way and make an icon - could I copyright that?
Yes and no. First I'd need permission from the original owner of the screen-shot, the guy who photographed it or copyrighted it, then once I had that - I could do it. They might request payment if I sold the icon. It's ancillary product under copyright law. Same with vids. The idea to create a vid of say Spike and Harmony sex scenes is not copyrightable. The vid you do is, the scenes you selected, the artwork you do, the music you chose - that combination is copyrightable. But each separated part is also copyrightable and you have to get permission to each separate part before you can sell or mass distribute it. You don't own the original components - the original is owned by ME, yours is an ancillary product and without their permission to use their images? You can't *legally* copyright or sell it or mass distribute it. Another way of thinking about this is well - when you cook a meal - you buy the pot, you buy the ingredients, you may even have bought the recipe book. Same deal here - except what you are buying is intangible - it's rights. You are buying the "right" to use this song in this way, you are buying the right to use this footage in this way. Same deal. Yes, like that meal you just cooked, you have created something original and separate from their creation but you used *their creation* to do it. This is very different than John Doe doing videos on women who are vampire slayers and sleeping with vampires. John Doe's video is the equivalent of cooking a meal using vegetables grown in your garden, a pot you made and a recipe you made up in your head. Same thing regarding someone using two quotes you happened to cite in an essay and referencing your *idea* regarding them. Although the whole citing thing gets really tricky sometimes - because of another nifty thing in copyright law called "fair use".
Fair Use governs how much of an original expression you can copy or use in an essay, educational material, scholarly work without paying the original author or requesting permission to use it. The amount you can use depends on the work of art or expression. If a poem, it may be no more than one line depending on the length of the poem. If a piece of prose up to 250 words, I think - that's off the top of my head. Photos? You have to ask for permission. That area is a lot tricker. Film? You can use one or two screen-shots for review purposes. The trick? Whether or not you are depriving someone else of commerical profit or plagirizing their work. Also regarding scholarly works - you sometimes have to quote secondary sources. For example if you got the quote you're using from say someone else's essay, you only have to cite that essay if the form and nature of the quote was changed by the essayist and if you are using anything they added to it. Tricky online, because people don't always tell you if they have paraphrased or not and they don't always cite things accurately. An analogy to make this clear:
Say you made some great cookies and you want to sell the recipe or just post it. Part of the recipe you got from a friend - but it wasn't her recipe entirely it came from three sources: 1) Tollhouse,
2) friend's next door neighbor added a cup of vanilla, 3) friend combines butter and shortening and 4) you added coffee. How do cite it? Easy you cite Tollhouse and the next door neighbor. If you decide not to do your friend's combo of butter and shortening - you can leave them out of the cite. Even though you discovered the tollhouse and the cup of vanilla idea directly from your friend.
Fair use also sort of/not directly governs nifty things like fan vids, fan icons, fanfiction. So before my entire friend's list and the lurkers out there who read this panic - no, it is highly unlikely anyone is going to sue you for making an livejournal icon of Dru and Spike or writing a fanfic and posting it on the internet. Don't worry. I'm using icons after all and have dabbled in fanfic. We are fine. As long as you aren't selling these things, mass-distributing them or costing the original creators profit, you are fine. If your work dilutes the original or causes the original to become public domain or lose its trademark - you will be sued. Example: Mickey Mouse. Underground comics tried to use mickey mouse in political cartoons and comic strips in ways that alterred Disney's character's image and dilutted it. Close to losing their trademark on the character - Disney sued and won. Why? Because Mickey Mouse was an original expression of an idea, which someone was manipulating and turning into an ancillary product without permission. Now if they were merely parodying Mickey Mouse - they would be fine.
Parody is also allowable under the fair use clause.
So you're safe as long as you aren't hurting ME, Fox or Kuzuis by using their property. That does not make what you are doing legal by the way. So don't suddenly decide oh I can make a living creating icons from TV shows. No, you can't. Nor can you make a living off writing fanfic. It's a fine line we're treading here. I seriously doubt Fox or Kuzuis care about livejournal icons - it's just more advertising. But they do care if you reprinted them in a book or you took a bunch of vids you made and auctioned them off at a convention.
A really odd thing about fanfic - is the original creators seem to not only encourage it, but also don't read for fear of stealing ideas. Heh. Again ideas not copyrightable. What they are afraid of is *not* stealing the idea so much as the expression of it. Very tricky distinction. But then most of these guys aren't experts in copyright law and like I said copyright law is confusing and constantly changing.
So how to keep track?
Quick and easy: Ideas can't be owned. Expressions of ideas can be. If your creation hurts the original product's profits and you didn't get permission to use it- be worried. They can and will sue you. Quoting someone else's material - that material remains their's, the only part of the quotation of it that is your''s is how you quoted it - ie any words or phrases you specially add to the quote or use to explain it - are owned by you. The images in your vid or icon belong to the orignal creator, your manipulation of them or additions to them - belong to you. Same with fanfic. That said - they can legally force you to remove it from your site and cease from distributing it because it contains substantive information owned by them.
Hope that made sense. It was off the top of my head. Ugh. I hate copyright law - it's such a dicey area. And so detail oriented. Lots of nit-picky, anal retentive crap which gives me a headache. Making things worse - so many amateurs try to figure it out and get it all wrong.
People seem incredibly confused about copyright. They get overly protective and feel the need to attribute things that ahem you can't own and aren't copyrightable, while willy-nilly trading and copying stuff that is copyrightable and owned by someone else.
A little background - I administered and managed a copyright, content licensing, and trademark department at a publishing company for six years. I established the copyright policy at the company and served as an information resource on copyright among other things.
Copyright Law, a subset of Intellectual Property Law, particularly in this day and age is confusing.
First off what can be owned? What is copyrightable? Or what isn't?
Ideas - like it or not - are *not* copyrightable. Nor can they be trademarked. Joss Whedon cannot copyright the idea of having a female vampire slayer. He can trademark and copyright the name Buffy The Vampire Slayer, but not the name Buffy itself (people can still call kids and characters Buffy without consulting Fox or ME or the Kuzuis, as long as the character bares no resemblance to Buffy the Vampire Slayer or Buffy in the series BTVS). He can also trademark and copyright the complex mythology he has created around the slayer and what a slayer is - but this does not stop Joe Schmo from doing a series about female vampire slayers as long as Joe Schmo does not use the same mythology. You can't own an idea. Also there is no such thing as an *original* idea. So get the frigging concept of idea ownership out of your brains. Also stop worrying about stealing ideas or others stealing yours. Ideas can't be bottled up. They are floating about like air. Think of ideas like air. Invisible. Can't be copyrighted.
What is copyrightable is the original *expression* of an idea.
Original, creative expression. This can be owned. This is called intellectual property. According to a landmark copyright case called Fiest (I think that's the correct spelling, watch, someone out there is bound to come out of the woodwork and kick me for spelling it wrong). It has to a creative expression that shows work, sweat of the brow, or something unique or distinquished. (For example a listing of phone numbers is not copyrightable.)
So...if I were to say take a screen-shot, manipulate, change it in some way and make an icon - could I copyright that?
Yes and no. First I'd need permission from the original owner of the screen-shot, the guy who photographed it or copyrighted it, then once I had that - I could do it. They might request payment if I sold the icon. It's ancillary product under copyright law. Same with vids. The idea to create a vid of say Spike and Harmony sex scenes is not copyrightable. The vid you do is, the scenes you selected, the artwork you do, the music you chose - that combination is copyrightable. But each separated part is also copyrightable and you have to get permission to each separate part before you can sell or mass distribute it. You don't own the original components - the original is owned by ME, yours is an ancillary product and without their permission to use their images? You can't *legally* copyright or sell it or mass distribute it. Another way of thinking about this is well - when you cook a meal - you buy the pot, you buy the ingredients, you may even have bought the recipe book. Same deal here - except what you are buying is intangible - it's rights. You are buying the "right" to use this song in this way, you are buying the right to use this footage in this way. Same deal. Yes, like that meal you just cooked, you have created something original and separate from their creation but you used *their creation* to do it. This is very different than John Doe doing videos on women who are vampire slayers and sleeping with vampires. John Doe's video is the equivalent of cooking a meal using vegetables grown in your garden, a pot you made and a recipe you made up in your head. Same thing regarding someone using two quotes you happened to cite in an essay and referencing your *idea* regarding them. Although the whole citing thing gets really tricky sometimes - because of another nifty thing in copyright law called "fair use".
Fair Use governs how much of an original expression you can copy or use in an essay, educational material, scholarly work without paying the original author or requesting permission to use it. The amount you can use depends on the work of art or expression. If a poem, it may be no more than one line depending on the length of the poem. If a piece of prose up to 250 words, I think - that's off the top of my head. Photos? You have to ask for permission. That area is a lot tricker. Film? You can use one or two screen-shots for review purposes. The trick? Whether or not you are depriving someone else of commerical profit or plagirizing their work. Also regarding scholarly works - you sometimes have to quote secondary sources. For example if you got the quote you're using from say someone else's essay, you only have to cite that essay if the form and nature of the quote was changed by the essayist and if you are using anything they added to it. Tricky online, because people don't always tell you if they have paraphrased or not and they don't always cite things accurately. An analogy to make this clear:
Say you made some great cookies and you want to sell the recipe or just post it. Part of the recipe you got from a friend - but it wasn't her recipe entirely it came from three sources: 1) Tollhouse,
2) friend's next door neighbor added a cup of vanilla, 3) friend combines butter and shortening and 4) you added coffee. How do cite it? Easy you cite Tollhouse and the next door neighbor. If you decide not to do your friend's combo of butter and shortening - you can leave them out of the cite. Even though you discovered the tollhouse and the cup of vanilla idea directly from your friend.
Fair use also sort of/not directly governs nifty things like fan vids, fan icons, fanfiction. So before my entire friend's list and the lurkers out there who read this panic - no, it is highly unlikely anyone is going to sue you for making an livejournal icon of Dru and Spike or writing a fanfic and posting it on the internet. Don't worry. I'm using icons after all and have dabbled in fanfic. We are fine. As long as you aren't selling these things, mass-distributing them or costing the original creators profit, you are fine. If your work dilutes the original or causes the original to become public domain or lose its trademark - you will be sued. Example: Mickey Mouse. Underground comics tried to use mickey mouse in political cartoons and comic strips in ways that alterred Disney's character's image and dilutted it. Close to losing their trademark on the character - Disney sued and won. Why? Because Mickey Mouse was an original expression of an idea, which someone was manipulating and turning into an ancillary product without permission. Now if they were merely parodying Mickey Mouse - they would be fine.
Parody is also allowable under the fair use clause.
So you're safe as long as you aren't hurting ME, Fox or Kuzuis by using their property. That does not make what you are doing legal by the way. So don't suddenly decide oh I can make a living creating icons from TV shows. No, you can't. Nor can you make a living off writing fanfic. It's a fine line we're treading here. I seriously doubt Fox or Kuzuis care about livejournal icons - it's just more advertising. But they do care if you reprinted them in a book or you took a bunch of vids you made and auctioned them off at a convention.
A really odd thing about fanfic - is the original creators seem to not only encourage it, but also don't read for fear of stealing ideas. Heh. Again ideas not copyrightable. What they are afraid of is *not* stealing the idea so much as the expression of it. Very tricky distinction. But then most of these guys aren't experts in copyright law and like I said copyright law is confusing and constantly changing.
So how to keep track?
Quick and easy: Ideas can't be owned. Expressions of ideas can be. If your creation hurts the original product's profits and you didn't get permission to use it- be worried. They can and will sue you. Quoting someone else's material - that material remains their's, the only part of the quotation of it that is your''s is how you quoted it - ie any words or phrases you specially add to the quote or use to explain it - are owned by you. The images in your vid or icon belong to the orignal creator, your manipulation of them or additions to them - belong to you. Same with fanfic. That said - they can legally force you to remove it from your site and cease from distributing it because it contains substantive information owned by them.
Hope that made sense. It was off the top of my head. Ugh. I hate copyright law - it's such a dicey area. And so detail oriented. Lots of nit-picky, anal retentive crap which gives me a headache. Making things worse - so many amateurs try to figure it out and get it all wrong.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
Thanks for this
Date: 2004-05-12 04:08 pm (UTC)illegally gottenmy favorite pictures and didn't credit meany more than I credited the original!!!" arguments even more amusing.You're welcome...;-)
Date: 2004-05-12 08:28 pm (UTC)