ArtUntitled.com ... Copyright Infringement and Fair Use

**Infringement** and **Fair-Use**
Copyrights are a bundle of individual exclusive rights that include the power to control copying (reproduction), distribution, display, and make derivative works. Infringement occurs when someone other than the copyright owner takes (uses) some or all of the rights as his/her own without permission. An infringer is someone who has copied, distributed, sold, or otherwise improperly violated the (copy)rights of the owner. Infringement often results from the making of an unauthorized reproduction of copyright protected work. The form of such reproduction can be varied. It could be as simple as making a photocopy of a photograph without the photographer's permission. It might involve making a painting very similar to another painting by visually observing and copying it. Computers typically make a variety of copies. For example, when looking at a website page, the computer makes a temporary copy to display on the screen. Most likely, this use is impliedly authorized by the website's maker (assuming that person owns all the copyrights) and such a use wouldn't be an infringement. However, when an image is downloaded from a website, even by dragging it from the web page onto the desktop, this is infringement unless the owner has given permission.¹ Another computer related infringement may occur on websites or blogs that have borrowed and displayed the work of an artist without permission. As mentioned above, the infringment of copyrights may include exclusive rights other than the reproduction right alone. Infringement typically applies to situations where a copyright, trademark or patent has been violated by unauthorized use. In the context of artwork, other actions, such as altering an original work may also be a violation. Modifying an original work of art, or even modification of a copy can be a violation of the right to make derivative works. In essence the modified work has become a new work that is based upon the original; a derivative. Also, when unauthorized modifications are made, other laws that pertain to artwork may be violated. (See the Art Laws section in the main menu for more information). If a person happens to create a work that is very similar to another, but it was created without any knowledge of the first work, then such independent creation is not infringement. In the context of copyrights, when artwork is infringed, the owner can sue the infringer for damages (usually money based on loss) or simply to stop the infringement by court order, as an injunction. If the work was registered with the copyright office before the date that the infringement occurred, the copyright owner may be able to obtain additional money damages from the infringer as well (statutory damages). When a court is considering whether an infringement has occurred, there are two key points that a judge may consider:
	The degree of similarity between the original (copied) work and the other (alleged copy) work. Whether the alleged infringer had access to the original, or viewed it at some point before the alleged copy was made. If the alleged infringer had no access, then the new work may have been created independently, and was not infringement.
The presence of both access and similarity may tend to show that the work was copied. When these points have been considered, the court will weigh them, and decide whether infringement has occurred. It may also be considered whether the original was in fact protected by copyright, and whether it was copyrightable. (For example, ensuring that the original is not in the public domain or is not so common or unoriginal as to be uncopyrightable; e.g., a drawing of a circle). If the court decides that infringement did occur, it may award money to the copyright owner based upon either lost profits of the owner or the profit gained by the infringer. If the work was registered before the infringement occurred, then additional money may be awarded. Or, the judge may grant an injunction, ordering the infringer to stop. However, prior to the decision, an infringer may assert a defense based upon First Amendment free-speech rights.
	Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Fair Use, a defense to copyright infringement The First Amendment of the U.S. Constitution protects the freedom of speech. The Constitution also provides for the granting of copyrights² and these concepts are essentially in conflict with each other. One provides for speech and the other limits it. The concept of fair-use is a form of balancing these two competing rights. Talking About Speech Although it may initially appear as if the First Amendment, reproduced above, provides for an absolute ability to free speech, but this is not the case. The words actually specify that Congress cannot make a law to limit speech (this also applies to State and local governments). The Copyright Act is a group of laws passed by Congress to enable the granting of Copyrights, consistant with this power given to it by the Constitution. Copyrights, in essence, limit speech. (Artwork=speech). Preventing the free copying of any expression is restricting speech. The ability to make the Copyright laws was given to Congress, the government, by the Constitution. On the other hand, the First Amendment also applies to the government by limiting its power. The First Amendment provides for freedom from government interference, in matters of speech and certain other issues. Absolute rights are an ideal, but some apparent limitations can serve important functions. An absolute right to free-speech would seem to negate the ability for copyrights to exist, for one. On the other hand, if copyright was absolute, it would wall-off certain ideas (as works) from the public, possibly preventing even basic communication about certain topics–clearly an issue for speech rights. Generally speaking, the First Amendment often trumps other rights, and so it is with copyright as well—in a limited way. The limitations on copyright are designed so that the most important types of speech are not abridged, particularly those related to political speech, news, and commentary. The result of this construction is that speech is free, but is not without responsibility. If a person needlessly shouts "fire" in a crowed theater, he may be held responsible for subsequent injuries; if X tells a lie about Y and Y is fired from her job, X may be held responsible. The speech is free to be made, but there may be consequences for the speaker. Generally, “fair-use” is considered a defense to a charge of infringement when it involves speech that is protected by the Constitution. The interpretation of this concept is that a reasonable portion of a work may be utilized for these "protected" purposes. Along with protected speech, there are certain other fair-use exceptions, such as a limited education purpose.
	Fair use = a limitation on the exclusive rights of the copyright owner
The fair-use exceptions include the following purposes:
	Criticism, Comment, News Reporting, Teaching (certain educational uses), Scholarship or Research.
Parody and Satire are included in the criticism /comment categories by case law. Using a copyrighted work for the purpose of parody or satire may be a fair-use, depending on the context. However, to qualify as a fair-use, the court decisions tend to reflect a requirement for such comment to be made upon the copied work, rather than the society in general. It is not enough to simply make a parody or satire (or perhaps other comment/criticism) when copying, but rather it must be directed at the copied work. In a copyright infringement lawsuit brought against him, Jeff Koons lost primarily based on this point. See more about this case here (capsule summary). See also Campbell v. Acuff-Rose Music Inc., Supreme Court decision for a discussion of parody and fair-use. A court, considering whether the use was a fair one, would consider the following factors as well:
	The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work, such as whether it is particularly personal in nature (an unpublished autobiography, e.g.) or conversely, whether there is a strong newsworthiness to some aspect of the work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole, such as whether the copier used only a small portion or copied the entire work; and The effect of the use upon the potential market for or value of the copyrighted work. This point considers whether the infringement caused the copyright owner to lose potential buyers for a product, such as by reproducing a key excerpt of a tell-all book, thereby dampening enthusiasm for buying the entire book itself.
The purposes and uses above are not black and white exceptions to infringement; rather they function as points to consider in whether the infringement was fair within the circumstances and therefore excuseable or not. The distinction between fair and non-fair use can be a confusing area to navigate. For example, some educational purposes may be considered acceptable fair-use, but others may not. Consider that a portion of a book is photo-copied and distributed to students. Despite an educational setting, this is may be considered to be a “commercial” use if its core purpose was to avoid the necessity of purchasing books for every student. Thus, the motivation was saving money–a commerical purpose–and it is not a fair educational use. In such a situation, this action would be infringement and not excusable as a fair-use because it essentially denies the revenue that would have been paid for purchases of the book to the author. It should be noted that the same may be true of copies of a magazine article, or any other situation where the writing would be normally purchased in some form. Both the context and the core purpose, along with the condition of the content used, determine if the use is fair or not, according to the law. However, the boundaries that determine fair-use or non-fair use are not razor sharp. Unless the proposed use is very clearly in the fair use category, it is prudent for a potential copier to obtain permission from the copyright owner before making any reproductions of the work. If a defense of fair-use fails, then the defendant may be found liable (guilty) for infringement and may be responsible for damages (i.e., $). Notes: Additional exceptions to the copyright owner's exclusive rights are contained in the Copyright Act, sections 108 to 122. Some of these exceptions include certain acts of libraries and archives, secondary transmissions of signals (such as a hotel relaying a cable signal to a guest room) and also requirements regarding the compulsory licensing of phonorecordings (audio recordings). For more information, refer to the relevent sections, which can be viewed on the Copyright Office's website. About prior restraint: When speech is somehow limited by the government, the limitation is suppose to occur after the speech has been made, not prior. If limitation occurs before the speech has been made, this is called prior restraint and it is nearly always unconstitutional. In consequence, a court order restraining an infringement before it has actually occurred is unusual. Such an order, would typically only be given if there is a strong showing of irreparable harm to the complaining party (the copyright owner). This may involve a commercial transaction where, perhaps a harmful sale, transfer or distribution of rights, would occur if the court didn't intervene. The copyright law and federal trademark laws were amended by Congress in 2008 to provide enhanced penalties for infringement and counterfeiting. A copy of the amendment document is here. Notes and Resources: U.S. Copyright Office Read the specific text of the law about Fair Use. (Section 107) See Campbell v. Acuff-Rose Music, Inc., especially regarding parody and fair-use factors (Supreme Court decision). Rogers v. Koons (capsule summary)
¹There are certain exceptions for downloads necessary to run computer programs, such as when a browser program displays a copyright image on a web page. The display of the image on the computer monitor is technically a download, but it is a necessary process for using the program–viewing the web page and image–as it was intended. Dragging the same image onto the desktop would still be an infringement unless permission to do so by the image's copyright owner was given. There are also exceptions for making backups of software, but it should be noted that software is usually provided by license rather than by a transfer of ownershp and there may be contractual (sales agreement) limitations on this point. ²"Congress shall have Power..." (U.S. CONST. art. I, § 8, cl. 1.) "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." (U.S. CONST. art. I § 8, cl. 8.) Emphasis added.

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