Tuesday, August 9, 2011

Attribution and Fair Use – Copyright part 9

Attribution to sources goes back at least to the time of the Talmud, if not earlier. Frequently one rabbi will say something in the name of one of his teachers or quote a Biblical verse. While this is not the same as an academic citation, it does acknowledge that we are students of our teachers and we draw our ideas from reliable sources. In rabbinic law as well as contemporary jurisprudence decisions and rulings are based on the precedence of previous decisions. In academic writing, sources add support and credibility to what you say. Sometimes what is “new” is based on an interpretation of sources. We teach students to take from many sources and synthesize them into something new.

Attribution is not just a matter of derekh eretz (good manners) but also indicates intellectual honesty and respect for our teachers, who can be anyone we have encountered in person or from their writings. Attribution is a way to say we are “dwarfs on the shoulders of giants.” [fn 1]

Many times the insider is at a disadvantage for creating and expressing new ideas. The local insider is not considered to be an expert. The management or co-workers see this person every day and do not respect his/her opinion and advice as much as the expert from the outside. If the insider brings outside support in the form of attribution his voice is no longer alone.

Early copyright protection was afforded to rabbinic books by local rabbis and local municipal authorities before a national copyright law existed. Copyright protection has at least two aspects—protection of intellectual property and commercial protection so that creators, printers and publishers could make money from their labors. Early protection favored the printers and publishers rather than the creators. Without the limited monopoly of copyright, writers and publishers would have no incentive to create new works. People are entitled to compensation for creating artistic and literary works.

Intellectual property rights and commercial rights to created works are two aspects of the creative process. Sometimes the rights are intertwined and sometimes the rights are separate. The intellectual property right to own recorded ideas lasts with the creator forever. Commercial rights have a time or place limit. While you may copy freely something with an expired copyright, you can not claim that you wrote it. For the purpose of encouraging commerce copyright protection is a limited monopoly. The written law (i.e. statues) and common law (court cases and administrative rules) govern how we use the intellectual property of others and how we protect our intellectual property. Creators have the right to earn money, control how their work is used, control quotes from their works, and control the creation of derivative works such as paperback reprint, electronic versions, videos, and audio books.

Many aspects of copyright are unfair to scholars, students, teachers, libraries and librarians. That does not grant license to ignore or break the law. Even if I could get everyone in Congress to agree with me the problems would not be solved because the Europeans have a different way of looking at copyright protection.

Attribution of ideas is a way of showing the author is honest and trust worthy. Academic excellence is based on trust. Even outside the academy one needs to build a reputation of trust. In business one needs internal and external customers to believe what you say is correct and trustworthy. One can not steal the intellectual property of others and be taken seriously. I use the word “steal” in contrast to learning from the best practices of others. A discussion of how we learn from others is a topic discussed other articles. [fn 2]

Plagiarism is the act of taking someone else’s creative work and claiming it as your own. Presenting a work as your own that is not is a matter of profession or artistic ethics. Plagiarism is not always illegal but if caught you may lose your reputation, your grade in a class, or your job. Intellectual honesty is just as important and monetary honesty. In teaching this to children we say that stealing something from a store is just as dishonest as stealing the work of authors.

Fair Use

Copyright is tradeoff between the public who want to consume creative efforts and the creators who want to earn reward from their efforts and control use of the material. The statute gives guidelines for the use of copyrighted materials. The law says nothing about attribution. Attributing sources with a correct citation does not absolve one of following the laws concerning fair use. The law is a guide that leaves room for interpretation. Fair use is a way to allow the public use of copyrighted materials. Some cases have even gone to the courts in order to decide if fair use was followed. [fn 3]

Here are the full text of the Israeli and American laws, a summary of the U.K. laws concerning fair use and a license to deal with how one can use materials.

Israeli Copyright Act of 2007

19. Fair Use
(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution.
(b) In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following:
(1) The purpose and character of the use;
(2) The character of the work used;
(3) The scope of the use, quantitatively and qualitatively, in relation to the work as a whole;
(4) The impact of the use on the value of the work and its potential market.

American Law Title 17 Chapter 1

§ 107. Limitations on exclusive rights: Fair use
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.

U.K. Copyright

The text of the British copyright law called Copyright, Designs and Patents Act 1988 is more extensive in what is permitted under fair use than the American and Israeli law. Chapter III [fn 4] deals with what is permitted to do with copyrighted works without infringements. To summarize the law had provisions for use of works under the following topics: 1) for research or private study; 2) criticism, review and news reporting; 3) incidental inclusion of copyright material; 3) educational use; 4) recording of a performance; 5) photocopying in schools, archives, and libraries; 5) public documents such as parliamentary and judicial proceedings and public records; 6) designs, models and other artwork; 7) electronic copies; 8) sound recordings; 9) computer programs; 10) radio and TV broadcasts;

To summarize what is permitted – Making copies for private study or research, instruction is allowed. Copying sections for review, criticism or news reporting is allowed with acknowledgment and limited to no more than necessary for the purpose. Incidental use such as news broadcast or video capturing a copyrighted work in the background is allowed.

Creative Common License

The Creative Common License (full text: http://creativecommons.org/licenses/by/3.0/legalcode) is a way of dealing with use of copyrighted materials. The creator gives anyone the right to use the work with certain limitations. One limitation is attribution. The user must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work.) The right to use, adapt or translate the work is world-wide, royalty free, non-exclusive and for the duration of the copyright.

2. Fair Dealing Rights

Under Creative Common here is the paragraph for fair use

Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

The law concerning fair use is purposely vague leaving room for interpretation and adaptation to individual circumstances. Most people including teachers have not kept up with the latest changes in the copyright law. People who graduated before 1988 think that registration is required for copyright protection; it does not. They don’t understand that neither publication nor a copyright notice is required for protection. Any work in a tangible form is protected automatically under American law and all countries that are part of the Berne Convention. Tangible form means the work is written, recorded, or saved in a computer file. An email, web site, and blog, are as equally protected as a printed or recorded work. Ideas not put in tangible are not protected. I’ve explained this many times to faculty and students. Because they don’t understand the protection aspect, they don’t understand what they can or can not use in their papers.

The nature of law suits for copyright infringement is different than other damage suits. The court may award up to $150,000 damages for each separate act of knowing infringement. Unlike other cases the court can order the losing party to pay the legal fees of the wining party. If you don’t know that you were infringing, this will only affect the amount of damages and not responsibility or liability. Since good faith compliance to fair use is a defense, it makes sense to understand how to comply. Institutions make policies to guide their people in compliance. Following the policy makes one less likely to be sued. Ignoring the policy makes one a good target for a law suit.

Writers frequently base their writings on the work of others. In the Renaissance playwrights such as William Shakespeare and Christopher Marlow borrowed material from history and literary works. [fn 5] Today lots of works are based on folklore or common themes. In 2012 and 2013 rival film companies, Disney, Universal, and Relativity, will be releasing new films based on Snow White. One will be a retelling of the Grimm Brothers fairy tale and the other two will be far removed from the original story. [fn 6] This is not plagiarism and not even part of a fair use question. One is allowed to use a well known theme. One is allowed to base a current work on common knowledge or a folk story. Since lists and government documents are not protected with copyright, if you wanted to make a video or Broadway musical based on the reading of document you would not need permission, but you would need attribution.

To facilitate following the laws concerning fair use many libraries have written policies and guides for users. Here is a sampling: From Stanford University Library: “Measuring Fair Use: The Four Factors” http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html. The four factors are taken directly from the law as I quoted above. From the University of Texas Libraries: “Fair use of copyrighted materials” http://copyright.lib.utexas.edu/copypol2.html . I don’t intend to repeat what they have written.

Purpose. If the copy is for educational purposes rather than making a profit you have a stronger case for fair use that if you charge for copies. Remember the U.S. Constitution is the authority for all copyright law. The copyright clause is: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. “ The clause permits Congress to make laws; it does not state the limit or nature of the promotion. One test is whether or not the purpose is for the promotion of “science” (i.e. educational purposes.)

Nature of the work. Quality of the work, merit, and artistic quality or any other measures of judgment have no bearing on the copyright or the fair use of a work. Whether the work is fictional, non-fiction, or a parody will have some merit on how you can use the work under fair use. I am freer to make up ideas for a work of imagination than a work of non-fiction. But even the line between fiction and non-fiction is gray. For example in my interviews with a college president, all the facts were from my imagination, but the philosophy and content of the ideas had an underlying truth. An essay, editorial, or op-ed may be the opinion and work of the author’s imagination, but that does not mean it is not true.

See my blog article of Monday, November 15, 2010, “What is Copyright? Part 2” for a longer discussion of what is protected.

Amount of copied materials. The law does not state the amount of material that may be copied from the original. Generally libraries say that a reader may copy an article or chapter for personal use. The copying of an entire book is not allowed. However, if someone copied one chapter today, a second chapter next week and a third chapter another time we don’t tell the person no. We say that the person copying is responsible for copyright compliance, not the librarians. If you copy a couple of paragraphs of a larger work into your article, there is generally no problem. If your article consists of copied paragraphs and very little analysis, you have a problem. Permitted copying is independent of the need to attribute your source. Copying one paragraph then making comments is allowed.

Systematic copying and distribution is not allowed without permission even if the work is out of print. This is a big problem. If the publisher is still in business they could control the reprint rights. If the publisher or owner of the work is impossible to find, it is hard to advise the potential reprinter what to do. Libraries are allowed to make archival copies. This kind of problem is faced by Google and other systematic digitization projects. Since the law is gray in this area, the copyright law should be amended to make the copying of orphan works easier.

Marketability. This is the protection of the commercial rights of the creators and publishers. If what you are copying interferes with the ability to sell copies, this is not a fair use. If what you do does not interfere, the creator would have only the argument of protecting intellectual property. That is control over how the work is used. For example when reviewing a book you copy the cover. This is a free advertisement for the publisher. They shouldn’t mind. If you copy a published picture from a book or magazine without permission, this is possible infringement. If those pictures are licensed from the owner, the right to copy must be secured from them. This is not an area we are careful about when teaching students. While it may help a student’s paper to have an illustration, it should not come at a cost of stealing.

Common misconceptions

1) The lack of a copyright notice means the work is not protected. Before 1976 this was the law. Many works passed into the public domain because the little © was missing. While I think it is important to notify your readers that you claim copyright, the law does not require it. With or without a copyright symbol or formal registration, your work has protection. Registration for works has some advantages such a proving a claim, but it is not required. Copyright deposit copies are one way national libraries obtain copies of every work produced. This is important for cultural history and documentation of a time or place. Research libraries depend on lists of copyright deposits to assemble systematic collections.

2) Publication is the key to protection. This was the old law again. The current law provides for protection from the moment the work is put into tangible form. A memo, a scribble or class paper has the same protection as a book printed with 10,000’s of copies.

3) If it’s on the Internet, it’s free to copy. Wrong, wrong, and wrong. Material on the Internet is in a tangible form and is published. It is protected by every law that applies to printed and recorded works. Easy of finding and copying material has no bearing on fair use or copyright. This is one area that creators and providers should be more careful about providing notification. If someone already believes that lack of notification of copyright notice means public domain, providers should make sure to make a claim of copyright in clear language. They should help educate the public to know that creators of content have the protection of copyright. Some creators give notice of Creative Common license. That means you can copy the work without fee, but still need to give proper attribution. The work is still protected with copyright.

4) One paragraph of less than 300 words is OK to copy. What is permitted depends on the nature of the work. If the paragraph is one from a long novel, 300 words is minimal and should be no problem. If the original work is only 350 words, then copying 300 words is a substantial part of the original and this is not fair use. If you copy a 4” x 6” section of a 500 square inch mural this is not the same as copying a 4” x 6” complete photograph.

5) A disclaimer can absolve you of fair use violations. No, copyright of a work is not set aside by a disclaimer on the part of the end user. A license agreement from the copyright owner may over ride some provisions of fair use. The license or contract will take precedence over the statutory rights.


We must help students, scholars, faculty, and other library users understand what is permitted and what is not under copyright so that they can be better users and creators of knowledge.


1. This aphorism is discussed at length in several articles including. Leiman, Shnayer Z, “Dwarfs on the Shoulders of Giants,” Tradition Spring 1993. Leiman claims that the earliest mention of this aphorism was recorded by the Italian halakhic writer, Isaiah di Trani ben Mali (the Elder) (c. 1180 – c. 1250). The aphorism could be based on a synthesis of several Biblical sentences – Psalms 119:46 “I will no be ashamed of your decrees, and not shamed in the presence of kings” and Kohelet 2:9 “I gained more wealth than anyone before me in Jerusalem.” Leiman lists in footnote #10 an exhaustive list of sources for who cite this aphorism. I leave a full discussion of the topic to Leiman. The aphorism also is used in Latin and English literature.

2. See my web pages: “Knowledge Management Terms “ http://home.earthlink.net/~ddstuhlman/defin1.htm and read the sections on knowledge and learning and the page, “Knowledge Management Experts” http://home.earthlink.net/~ddstuhlman/kmexpert.htm see the section of sharing knowledge.

3. Stanford University Libraries has a web page with a list of fair use court cases. http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html These examples include the points of law that were deciding factors such as marketability and control of intellectual property. An author who paraphrased from unpublished letters of J.D. Salinger was denied under fair use because of control of the intellectual property rights of the material. The Nation magazine was denied use of unpublished letters from Gerald Ford because of marketability concerns.

American Library Association lists more cases on their web site: http://www.ala.org/ala/issuesadvocacy/copyright/court/index.cfm

4. Full text of Chapter III http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III

5. The first copyright law was the Statue of Queen Anne (1710). Before then works were protected by common law or local stature not by a national law. In my blog of Tuesday, November 2, 2010, “What is Copyright? Part 1” I discuss some of the history of copyright and give sources for more information. In a comment to that posting, Barbara Braxton, a librarian in Australia, explains the difference between how Australian schools and teachers are able to use materials in classroom based on an agreement between the schools and publishers. This compares to the lack of such agreements in other countries.

6. See “'Snow White' Movies: Here's What We Know About Them” by Peter Hall http://blog.moviefone.com/2011/02/08/new-snow-white-movie/ for more information.

Wednesday, August 3, 2011

Copyright of Art Objects 2 – Copyright part 8

In a comment to my blog article of February 17, 2011 I mentioned a case before the British Supreme Court of George Lucas v. Andrew Ainsworth. The case was argued in

March 2011 and the judgment was given on July 27, 2011. Ainsworth was the designer of the Storm Trooper costumes in the 1977 movie, Star Wars. Ainsworth was selling (fn 1)replicas of the costumes made from the same molds (fn 2) and designs as the ones in the film. Lucas claimed that Luscafilms owned a copyright on the costumes. Ainsworth claimed the costumes were clothing and not protected by copyright. My February 17 article dealt with the copyright of clothing. Objects that have a utility purpose such as clothes, shoes, and furniture can not be protected with copyright. The article has references for more information.

On July 27 the British Supreme Court made their ruling public in a press summary (http://www.supremecourt.gov.uk/docs/UKSC_2010_0015_ps.pdf) . Both sides feel they have won something and the Court set some precedents for the enforcement of copyright and jurisdiction of the British courts. The case is discussed in the Guardian http://www.guardian.co.uk/film/2011/jul/27/star-wars-helmet-court-case on July 27, 2011. The Supreme Court stated that the costumes are not art. If the costumes were protected as a design, the 25(fn3) year duration of design protection has long passed. The Court rules that Ainsworth may continue to sell his costumes everywhere but the United States.

The Court dealt with two legal issues that set precedent in the British legal system and may have implications in American law.

(1) The definition of “sculpture” and the correct approach to three-dimensional objects that have both an artistic purpose and a utilitarian function;

(2) Whether an English court may exercise jurisdiction for infringement of copyright committed outside the European Union in breach of the copyright law of that country?

If you create or purchase a three-dimensional object and place it in your home or business, there is no doubt it is a protected sculpture because it has no utilitarian function. The way you display the object would make it perfectly clear that the object is art and without any practical use. If you wear it, it can not be copyright protected.

Lucasfilm argued that the helmet was an important part of the character. The Court said the same argument could be used for a 20th century military helmet used in a film. They used the example of the film depicting a war of the past (paragraph 43) with soldiers wearing helmets made of plastic, but painted to look like authentic steel.

The Court also claimed jurisdiction over the infringement of a foreign copyrights. While this does not obligate U.S. courts to do the same, it does show a precedent that may be used in other jurisdictions. The case was first presented in California, but the U.S. judgment was unenforceable in England.

The Court’s decision was based on several other cases that defined a sculpture. For example a 1962 case in New Zealand concerning Wham-O’s Frisbees. The Court of Appeal of New Zealand ruled that flying disks were utilitarian and not sculpture for the purposes of the Copyright Act. The wooden models of the discs were sculpture and protected. (Full ruling: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0015_Judgment.pdf)

The questions of jurisdiction were based on cases in the U.S. and other counties. This opens the doors to suits in the country where the defendant is domiciled rather than the home country of the plaintiff. This may help protect copyright holders in foreign countries.

These legal points are interesting, but far removed from my primary interest of copyrights as they relate to print, intellectual property and libraries. Sculptured objects are rarely collected in any great quantity by libraries. Library users general will not need to copy three-dimensional objects. However, the conflict of the British and American intellectual property rights reminds me that at one time American and British authors had no protection in the other’s country. It took The International Copyright Act of 1891 (also called the Chase Act) to afford foreign writers and publishers copyright protection in the United States. In today’s global economy the flow of words transcends borders so quickly that we need to protect our intellectual property on a global basis.

My next article will be on fair use or “fair dealing” in British law.


1. Andrew Ainsworth has a web site (http://www.sdsprops.com/) for selling the costumes from Star Wars. He has several helmets in addition to the Imperial Storm Troopers. It states that they products are not for sale in the United States.

2. Since he was British, he used “original moulds.”

3. The press summary has “15 years” which is a typo. According to the text of the Copyright Designs and Patents Act 1988 section 52 the duration is 25 years.