Tuesday, January 11, 2011

What is Copyright? Part 5

Not all sources on copyright are well written. Since I don't want to embarrass an author who is a professor at a Midwestern state university, I won't give the source of this quote. "... courts have ruled that consumers are allowed to make copies of compact disks for use in their tape players..." It is not not physically possible fit a CD into a cassette tape player. The author may be referring to boom boxes that used to have both a tape cassette player and a CD player, but today boom boxes generally only play CDs. However, I would like to see the original court ruling on this question.

Fair Use

The copyright law in section 107 allows use of materials "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The limits of "fair use" are subjective. Generally if the copies don't effect the potential market for the whole work, there is no problem. Systematic copying, copies of whole works, and the selling of anthologies consisting of copies from other works need the proper permissions from the copyright owners. Acknowledging or citing the source of the copyrighted material does not substitute for obtaining permission.

Fair use is defined in a the 1961 report, Register's Report on the General Revision of the U.S. Copyright Law (1961) Section B Special Rights

The general scope of fair use can be indicated by the following examples of the kinds of uses that may be permitted under that concept:
- Quotation of excerpts in a review or criticism for purposes of illustration or comment.
- Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations.
- Use in a parody of some of the content of the work parodied.
- Summary of an address or article, with brief quotations, in a news report.
- Reproduction by a library of a portion of a work to replace part of a damaged copy.

Fair use is supposed to allow students, scholars and others to quote works. Scholarship would grind to a halt if every short quote required the author to seek permission from the copyright owner.


Plagiarism is the copying of another person's work and claiming it as your own. Plagiarism is not against the law. It is an ethical, academic, or professional indiscretion. One can not turn to the court system for remedy. It is up to a teacher, professional group, editor, etc. to make sure all quotes are correctly cited and the author is really the author. Plagiarism is often confused with copyright or contract violation. Ideas are not protected by law but may be protected by contract. If you discuss an idea for a movie with an associate and later without your permission he makes a movie similar to your pitch, you have no recourse under law unless you have a contract to protect your ideas.

An example of the protection of ideas is the 1990 breach of contract lawsuit case of Art Buchwald v. Paramount Studio. (For fuller details see Wikipedia "Buchwald_v._Paramount" and O'Donnell, Pierce; McDougal, Dennis. Fatal Subtraction: How Hollywood Really Does Business: the inside story of Buchwald V. Paramount. New York: Doubleday, 1992.) In 1982, Art Buchwald wrote a screen treatment that was pitched to Paramount. Paramount optioned the treatment in early 1983. Since the preparation of a suitable script was not successful, Paramount abandoned the project in March 1985.

In 1988 the movie Coming to America was released by Paramount. Eddie Murphy was given sole story credit. Buchwald was not paid or credited as co-writer. Buchwald sued Paramount for breach of his contract with Paramount which stated that he would be paid if his treatment were made into a film. California Superior Court decided in 1990 that Buchwald was correct and should be compensated. The parties settled and there was no appeal.[1]

While the case has implications in many areas of intellectual property and how Hollywood studios do business, I'm only concerned with the copyright issues. The case would not exist without a contract. A contract can modify the rights of the author beyond what the law states. Copyright law does not cover ideas, but contracts may. Paramount and Eddie Murphy did not violate copyright law and perhaps they didn't plagiarize. A copyright violation suit would have been very hard for Buchwald to win. The case got considerable media coverage at the time and was mentioned in the New York Times obituary for Buchwald (Art Buchwald, Whose Humor Poked the Powerful, Dies at 81 / By Richard Severo. January 19, 2007 http://www.nytimes.com/2007/01/19/obituaries/19buchwald.html?_r=1 )

Copyright Defined

Copyright law allows a limited monopoly for exclusive rights to sell, publish, perform, translate, derive, record, etc. works that are fixed in a tangible form. Theoretically the public policy behind the law is to balance the interests of authors, publishers, and consumers/readers. Over time the copyright law seems to favor one group over the other. The first laws seem to favor the publishers as a system to protect a commercial enterprise. Since the publishers invested the money, they have a right to earn a fair return. In the 19th century the laws seem to favor the author. The readers and customers, who actually pay the bills, seem to have fewest rights.

The word "rights" is problematic because we connect it to the inalienable rights from the Declaration of Independence. or the Bill of Rights. We should use a term that indicates intellectual privileges granted to authors, creators and their partners. Copyright law should be a partnership between the creators and consumers. In exchange for a limited monopoly, the publishers and creators of books and non-print materials agree to spread the ideas, stories, analysis, data, facts, and graphics for the public's entertainment and education. The privileges granted by law are supposed to be an incentive to create, explore and share the results with the world.


1. While Art Buchwald won the suit, both Paramount and Buckwald lost money. Buchwald won a $150,000 settlement, but spent $200,000 in legal fees. Paramount's defense cost almost $3 million.

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