Copyright information that does not have anything to do with the "situation"

I seem to recall hearing around the office that in an excerpt the guideline is 10%=fair usage.

Anyone heard this ?

on the other hand, at my college-area Kinko's several years ago, the clerks would often refuse to copy copyrighted matieral.


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I've known Kinko's to be hesitant too. I did a presentation for my Introduction to Mythology course. It was about comic books being a type of postmodern American mythology. I wanted a color transparency made from a page of an Incredible Hulk comic book. They copied it for me but only after they asked what it was for and theh they made me sign a release-type-thing.


Alphagene

The 5-7 paragraph question sounds like a good one to me.
The important thing to remember about fair use, is that it is an excuse to copyright infringement. If you are saying that what you did is a fair use, you are implicitly stating that you have infringed a copyright, but that you have a legal excuse.
The better question, is whether copying 5-7 paragraphs is a reproduction of the work. I would bet that if it is a long book, copying a few paragraphs is not a reproduction of the work. If I turned out to be wrong, however, I would turn to the fair use provisions and try to argue that my infringement was excusable. Fair use is seductive, but as a legal argument, it starts you from a weak position. It is much safer to begin arguing that you have not infringed.
Papabear, school teachers tend to get quite a break from copyright law. Even Congress realizes you don't get much money for materials to teach. Just don't get carried away and copy everything in sight.

Hi, I was reading the topic about copyright violations, and the whole soap opera was very ummm, "interesting"
anyway, I thought a truly interesting question that deserves an answer was lost in the melee.

So, back to the original question, somewhat. I work for a tutoring company, and we have been wondering about the implications of using 5-7 paragraphs of some random passage or book or article to tutor the critical reading portion of the SAT.
The part of the copyright law quoted above says "teaching (including multiple copies for classroom use)." That sounds like us. Any copyright lawyers out there with any advice?


I thought this was a good question, and I hope I hope I am not breaking any rules by bringing the topic back up.

pat

As a teacher, I photocopy a lot of stuff, and have never once been called on it by school officials or anybody else. Frankly, I have made an effort NOT to be informed about copywrite law. All I gain by asking is the chance that I might have my copying activities curtailed. I do however put myself in the position of the authors and ask myself if I would object to someone doing the same with my creations. For example, if I copy a poem from a collection, I am, if anything, helping to promote the sale of that book in the same way that radio stations promote whole albums, by playing one song. Clearly, copying the whole book would be wrong (and labor intensive).

I wanted a color transparency made from a page of an Incredible Hulk comic book.

That may have been because of the artwork. I may be wrong, but I believe that pictures are handled by different legal principles than text, and have much more stringent regulations about their reproduction.

Wow, thanks, Pricciar. Now I am getting somewhere at least with my question. Now I have a different one.

Does anyone know of a source of uncopyrighted material, where we would not have to worry about the question in the first place?

When we publish a high volume selling SAT prep book, I'll be sure to say thanks to all who helped.

"And then you must cut down the tallest tree in the forest with...

A herring!"

What is the difference between a copywright infringement and plagarism? Is it simply passing work off as your own? What benefit does the use of proper citations and references provide? If you use a clip of work and cite it and properly credit it do you alter the copywrite restrictions? I've always beeen encouraged to copy quotations and citations from books and copywrited texts in my papers and research. Why is this not copywrite infringement?

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The facts expressed here belong to everybody, the opinions to me. The distinction is
yours to draw...

Omniscient; BAG

[/quote]Does anyone know of a source of uncopyrighted material, where we would not have to worry about the question in the first place?[/quote]

That's easy enough. Use works that are in the public domain.

See http://www.loc.gov/copyright/faq.html .

Actually, copyright DOES restrict educational use of material -- but educational use DOES weigh in favor of "fair use". An instructor who distributed scanned copies of a text book to his class would be making "educational use", but still clearly be in violation. On the other hand, if the same instructor excerpted a poem from a larger text as an example to the class, he would be OK; but an anthologist who copied this same poem to put it into his book (without permission) would not be OK.

As far as I know, no handy-dandy guidelines are recognized. The courts get to weigh many factors, and then they make a judgement call.

The following is taken from Playboy v. Frena, the cite of which escapes me at the moment but which was posted by Suzeanne at the end of the first UFO thread:

"Fair use" describes "limited and useful forms of copying and distribution that are tolerated as exceptions to copyright protection." Cable/Home Communications Corp., 902 F.2d at 843 (citing Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1494 (11th Cir.1984), cert. denied, 471 U.S.
1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985)).

The Copyright Act mandates four nonexclusive factors which courts shall consider case by case in determining fair use. Cable/Home Communications Corp., 902 F.2d at 843; see 17 U.S.C. S 107. Section 107 does not attempt to define "fair use." It merely lists the factors to be considered in determining whether a use made of a work in a particular case is fair. Section
107 states:

[T]he fair use of a copyrighted work ... 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.
17 U.S.C. S 107.

With respect to the first factor, "every commercial use of copyrighted material
is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright ...," Harper & Row, Publishers, Inc., 471 U.S. at 562, 105 S.Ct. at 2231 (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984)), so that "any commercial use tends to cut against a fair use defense." Triangle
Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (5th
Cir.1980).

Defendant Frena's use was clearly commercial. BBS was provided to those paying twenty-five dollars ($25) per month or to those who purchased products from Defendant Frena. One who distributes copyrighted material for profit is engaged in a commercial use even if the customers supplied with such material themselves use it for personal use. See Pacific & Southern Co. v. Duncan, 572 F.Supp. 1186 (N.D.Ga.1983), affirmed, 744 F.2d 1490 (11th
Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985).

Implicit in the presumption that every commercial use is presumptively unfair
is "some meaningful likelihood that future market harm exists." Cable/Home
Communications Corp., 902 F.2d at 844 (citing Sony, 464 U.S. at 451, 104 S.Ct.
at 793). It is clear that future market harm exists to PEI due to Frena's activities, as will be discussed in more detail under factor four.

The second factor is the "nature of the copyrighted work." 17 U.S.C. S 107. "Copyright protection is narrower, and the corresponding application of fair use defense greater, in the case of factual works than in the case of works of fiction or fantasy." 3 MELVILLE B. NIMMER, Nimmer on Copyright S 13.05[A],at 13-102.57 (1993). If a work is more appropriately characterized as entertainment, it is less likely that a claim of fair use will be accepted. See In New Era Publications Intern., ApS v. Carol Publishing Group, 904 F.2d 152(2d Cir.), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990).
The copyrighted works involved in this case are in the category of fantasy and
entertainment. Therefore, the second factor works against Frena's fair use
defense. . . .

Regarding the third factor, the amount and substantiality of the portion of the copyrighted work used, the Supreme Court has directed a qualitative evaluation of the copying of the copyrighted work. Cable/Home Communications Corp., 902 F.2d at 844 (citing Harper & Row, 471 U.S. at 564- 65, 105 S.Ct. at 2232-33). That is, "a small degree of taking is sufficient to transgress fair use if the copying is the essential part of the copyrighted work." Id. See,
e.g., Meeropol v. Nizer, 560 F.2d 1061, 1071 (2d Cir.1977) (although copyrighted letters were less than 1% of the infringing work, they were displayed prominently), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Roy Export Co. Establishment of Vaduz, Liechtenstein, Black, Inc. v. Columbia Broadcasting Sys., Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y.1980)
(fifty-five seconds taken from a one-hour and twenty- nine-minute film deemed
qualitatively substantial for copyright infringement), aff'd, 672 F.2d 1095
(2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.) ("[N]o plagiarist can excuse the
wrong by showing how much of his work he did not pirate."), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936). . . .

The fourth factor, the "effect of the use upon the potential market for or value of the copyrighted work," 17 U.S.C. S 107(4), is "undoubtedly the single most important element of fair use, since a proper application of fair use does not impair materially the marketability of the copied work." Cable/Home Communications Corp., 902 F.2d at 845. This factor poses the issue of "whether unrestricted and widespread conduct of the sort engaged in by the defendant (whether in fact engaged in by the defendant or others) would result in a
substantially adverse impact on the potential market for or value of the
plaintiff's present work." 3 MELVILLE B. NIMMER, Nimmer on Copyright S 13.05[A], at 13.102.61-62 (1993). "[P]otential market means either an immediate or delayed market, and includes harm to derivative works." Cable/Home Communications Corp., 902 F.2d at 845.

Obviously, if this type of conduct became widespread, it would adversely affect
the potential market for the copyrighted work. Such conduct would deny PEI considerable revenue to which it is entitled for the service it provides.

There is irrefutable evidence of direct copyright infringement in this case. It does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather, innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature. See D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir.1990).

Frena argues that his commercial use was so insignificant as to justify holding for him under the principle of de minimis non curat lex. The Court disagrees. The detrimental market effects coupled with the commercial-use presumption negates the fair use defense. Defendant Frena infringed Plaintiff's copyrights; specifically, the 170 image files in question in Exhibit C to the Tesnakis Affidavit infringed Plaintiff's copyrights in 50 of Plaintiff's copyrighted magazines. The Court finds that the undisputed facts mandate partial summary judgment that Defendant Frena's unauthorized display and distribution of PEI's copyrighted material is copyright infringement under 17 U.S.C. S 501

Note that the defendant in this case, Frena, was the operator of an online bulletin board, and he was being held liable for the posting of infringing works on that board by subscribers to it.

Someone above suggested that 10% would be fair use; while that might be a rule of thumb for some folks (I express no opinion one way or the other), note that the court has

quote:

on the other hand, at my college-area Kinko's several years ago, the clerks would often refuse to copy copyrighted matieral.

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My brother used to work at Kinko's, and he said they got sued for reproducing copyrighted material. He said they would then say "I can't copy that, but we have self-serve machines over there."

Harvey: the local Kinko's has a sign prominently posted which states "the person using the copy equipment is liable for violations of copyright law." They're apparently not adverse to making money from someone else breaking the law, they just don't intend to get sued themselves.

Dover Books publishes a large amount of copyright free material.

Write to
Dept. 23
Dover Publications, Inc.
31 East 2nd street
Mineola, N.Y. 11501

"I've always beeen encouraged to copy
quotations and citations from books and copywrited texts in my
papers and research. Why is this not copywrite infringement?"


Copyright does not restrict use of material for educational use.

Monty sed:
>Harvey: the local Kinko's has a sign
>prominently posted which states "the person
>using the copy equipment is liable for
>violations of copyright law." They're
>apparently not adverse to making money from
>someone else breaking the law, they just
>don't intend to get sued themselves.

Strange. Once I went to Kinko's to scan a picture of a ship my former company helped engineer 40 years before. But because the photographer stamped his name on the back, I couldn't scan it. (Never mind that the photographer was out of business and probably dead.) My solution was to photocopy the picture, then have them scan that.

Project Gutenberg at http://promo.net/pg/ has oodles of public domain works in electronic format. Definitely worth checking out if you need some non-copyrighted material (actually, a lot of it was originally copyrighted, but the copyright has now expired).

There tend to be a lot of misconceptions about copyright. For instance:

For example, if I copy a poem from a collection, I am, if anything, helping to promote the sale of that book in the same way that radio stations promote whole albums, by playing one song.

Radio stations pay for the privilege of playing that song. And copyright law give the copyright holder full control of any copies made; technically, you do need to ask permission. What can happen depends on what the copyright holder wants to do -- you can be sued for damages, but it may not be worth the effort to track you down and take you to court.

I seem to recall hearing around the office that in an excerpt the guideline is 10%=fair usage.

There is no definitive guideline for fair use. It has to be determined on a case-by-case basis, considering all the factors involved.

What is the difference between a copywright infringement and plagarism? Is it simply passing work off as your own? What benefit does the use of proper citations and references provide? If you use a clip of work and cite it and properly credit it do you alter the copywrite restrictions? I've always beeen encouraged to copy quotations and citations from books and copywrited texts in my papers and research. Why is this not copywrite infringement?

Plagiarism is claiming another work as your own. If you retyped another persons article in its entirety and put your name on it, you'd be guilty of plagiarism (as well as copyright infringement). You can take short parts of other people's work and use it in your own under fair use; just how much depends on who wants to push the issue. Since copyright infringement is a civil offense and not a criminal one, it's up to the copyright holder to decide whether to sue you and the court decides whether your usage was more than fair use.

J.D. Salenger, for instance, got a court to agree that the publication of any portion of his personal letters was not fair use under copyright law.



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