I was an academic librarian for many years and I often got questions like “Can I use this excerpt in my doctoral dissertation?” My usual response was to explain the parameters of fair use, and point out that if they attempted to get permission anyway it might well backfire.
The default response from rights holders is typically going to be “no” or “pay up.” That doesn’t mean that they are in the right.
The problem is that fair use isn’t well-codified except as precedent, which allows it to be gradually whittled down over time as new precedents push it further and further back.
Well, possibly, but the question is whether or not this has actually happened in court cases, or whether it’s just a bunch of blowhard rights-holders trying to intimidate people. The two are not the same thing.
More fun facts on copyright and copying:
You know, I always thought you were a history professor but your knowledge of law in a few threads convinced me I was wrong and you were a law professor.
I just want to say thanks for taking so much time to explain this kind of stuff here. You do such a good job, even I can understand it. I must say you have incredible patience. Or some good weed.
That seems a little harsh. The principle in law might be firmly established, but fighting a court case is expensive even if you’re in the right. You have a good suggestion about how the laws should be changed to discourage frivolous copyright lawsuits, but absent those changes, I can’t really blame anyone for not wanting to bankrupt themselves defending their right to Fair Use over a quote in some short fiction they posted to their Wordpress site.
In fairness, some states like mine do classify traffic offenses as misdemeanor crimes. Some, like yours, have created separate non-criminal civil penalties for traffic offenses. So the confusion is understandable.
That was accounted for in that thread.
I take your point. There are certainly many people who make the perfectly rational decision to avoid doing something in order to avoid a lawsuit from an overly-litigious individual or corporation.
But the fact that a few people are recommending against routine examples of fair use is not enough to convince me that there is any real, actual risk in the sorts of uses described by @susan in her post. Can anyone show me a flood of real-life lawsuits where copyright holders have actually taken people to court for using three-word quotations, or for quoting short passages in a piece of non-fiction work?
I mean, just in my own field (history), there are thousands of books published every single year, all of which use quotations–both brief and extended–from other works. And there are tens of thousands of books published in hundreds of other fields of endeavor every year. And even though I keep a pretty keen amateur eye on copyright issues in the law, I have not heard anything about a rash of lawsuits related to uses that are clear fair use under current U.S. law.
It’s certainly true, as a few in this thread have noted, that copyright law is rather imprecise, and you never know exactly how a case is going to turn out until it actually goes to trial and the court assess the issues specific to the case. There’s aren’t too many black and white issues, especially when it comes to fair use. But there are some examples of fair use where there would be basically no doubt about the legal outcome.
Also, while @jjakucyk argued that new precedents can change how such law is interpreted, the fact is that, when it comes to fair use of the sort we’re discussing here, there often aren’t a whole lot of useful precedents, especially on a national level. This is partly because not too many copyright cases make their way to the Circuit Courts of Appeal, let alone the Supreme Court.
Take the list of cases in the link provided by @md-2000, above. All of them deal with issues of fair use and the question of what is and is not transformative (none of which, by the way, is very useful in assessing something like the use of short quotations in a book). Of the 10 or so cases listed there, five of the decisions are from the Southern District of New York, meaning that the holdings in those cases, officially at least, only constitute precedent within that particular federal district. A couple of cases are from the 2nd Circuit, which means they constitute precedent for the states of NY, VT, and CT. And a couple are from the 9th Circuit, which covers California and eight other western states.
Remember, also, the precedent works both ways–it might encourage the filing of lawsuits, but it might also discourage them.
If you ask someone about fair use, and in particular about copying two-dimensional artworks that have fallen into the public domain, anyone who has any interest at all in the field will recognize the case of Bridgeman Art Library v. Corel Corporation, decided in 1999.
This is quite an interesting case. An art library sued Corel (a software company) because Corel copied photos of some old, out-of-copyright paintings to use on a CD-ROM. The art library argued that, although the paintings themselves were out of copyright, the art library held copyright in the photographs that had been taken of the paintings. Furthermore, because the art library had been given exclusive rights to take such pictures by the museums that owned the paintings, Corel must have copied its images from the art library’s digital images, and therefore violated the art library’s copyright.
The art library lost the case. The court found that “slavish copying” (i.e., an attempt to exactly reproduce the original) of an out-of-copyright image does not create new copyright in the photograph, because the very purpose of the copying is exact reproduction, and thus lacks “the ‘creative spark’ which is the sine qua non of originality.” Basically, under the logic of this ruling, if you get a 19th-century painting and set your camera up in a manner designed to get an exact copy, your photo won’t qualify for copyright because all it requires is technical proficiency and not the originality that copyright was designed to protect.
Why is this case interesting to our discussion?
Because it was decided in the Southern District of New York, this case does not constitute precedent in any other federal district throughout the country. So, if you took a photo of an old painting as I described above, and someone else copied your photo without your permission, you could theoretically sue them for copyright infringement anywhere in the U.S. except New York’s Southern District, and that court would not be required to follow the Bridgeman v. Corel decision.
And yet, despite this, there have been basically no lawsuits on this particular issue in the United States over the past 20 years, which seems odd given how many millions of old, out-of-copyright works must have been photographed during that time. And legal experts in the copyright field believe that there haven’t been new cases, for the most part, because just about everyone agrees that Bridgeman was probably correctly decided, and that other courts would probably say the same thing, even if they aren’t legally required to follow that decision.
Former Doper @Una_Persson runs an online art gallery, where they display paintings from all over the world. Una has been contacted a few times by museums and art galleries threatening lawsuits for the posting of reproductions of old, out-of-copyright paintings, but every time Una pushes back, asks them what their legal rationale is, and refuses to take down the images, they back down.
Anyway, I know this has wandered far from the OP, but I think that fair use is an incredibly important principle, and it’s worth defending even if far too many rights-holders wish it didn’t exist.
Thanks. I’m sure there are some things that I get wrong, or that could use more complete explanation, but this is something where I do quite a bit of reading, and where I have a keen amateur interest. I think the law is one of the areas of human life where some people are inclined to base their arguments on what they think or feel should be the right thing, rather than on what the law actually is.
I have no problem with “should” arguments, but they need to be carefully distinguished from the actual state of the law. If someone asks what the law is, the answer needs to focus on that–at least as a first step–rather than leaping straight in with a “This is what it should be” argument. There are other people, including some members or former members of this message board, who has often err in the other direction, leaping into “should” debates to tell people what the law is when it’s not really relevant to their more general arguments over ethics and principles.
This thread is drifting a bit from its original topic. We’re getting into fair use issues which have always been a bit murky. Since the OP has been addressed pretty well factually and fair use issues are more a matter of legal opinion than legal fact once you get down into the details, let’s move this to IMHO (from GQ).
Any factual information regarding the OP or other legal issues brought up in this thread is of course still welcome.
And what is the difference beyond a semantic one?
It’s not semantics. If you have a state statute that says “such and such and such” are not crimes it’s a fact of law, not semantics.
If you had been convicted of a non-criminal ordinance violation would you consider yourself a criminal? I think the term criminal is a lot more serious than simple semantics.
How does this work in the real world?
@UltraVires state says you are a criminal for some traffic offenses.
Your state says they are not criminal.
What’s the difference if you both pay a fine and get points on your driving record (or whatever equivalent they call it in your state)?
In one case, you might have to report them on a Job application*. You also might be listed on a criminal database.
But the big thing is, like in CA- you can say “I have never been convicted of a crime”, despite a dozen speeding tickets.
So, @UltraVires has to report these offenses when applying for the Bar exam but @pkbites doesn’t for doing the same thing?
What if @UltraVires applies for the Bar exam in @pkbites’ state?
If @pkbites and @UltraVires committed the same act but one could say it was not a crime how would that help them while the other would be screwed?
This does not seem related to the OP??
We’re in IMHO now.
More latitude is allowed (that is why the Mod moved it here).
And I was responding to your post which is off-topic.
It’s obvious. One of us wouldn’t have to admit to being convicted of a crime. And as pointed out such as applying for a job a criminal conviction can hurt your chances.
In my state first offense DUI is not a crime. As serious as it is it is not a criminal offense. You will be arrested, cuffed, searched, booked, photographed, and finger printed. You will have to post bond to get released. You will be required to attend your court hearings. But if you are convicted you won’t be a criminal. It’s a non-criminal traffic infraction. And if you’re ever asked on an application if you’ve ever been convicted of a crime you can honestly and legally say no.
The term “crime” has both a legal meaning and a layperson meaning. I think most laypeople would consider the acts that you can be arrested for to be crimes, even if they are not defined as such in the law. Just like, say, you might say someone was raped, even if the law would consider it “aggravated sexual assault” or something like that.
I don really think it’s relevant to this topic, though. The issue here is simply that you don’t automatically get the rights to something because someone else did something wrong. If I violate your copyright and copy an entire book you wrote, you can force me to stop selling them. You can sue me for damages. But you wouldn’t be entitled to actually own the copies of those books.
So, even if you think people shouldn’t have their photos taken and published without their permission, you wouldn’t get to use the photo. You could, at most, make them take it down.
Sure, maybe we could make some system where you are allowed to take people’s photos in public without their permission, but you have to let them use it, too. But I don’t think that would really please anyone. If you didn’t want your photo taken, then you probably wouldn’t want anyone to be able to use it.
Of course it is a crime.
Your state just says you only have to report on a form after you have committed two of them instead of one. Still curious if you committed only one act if you can skip reporting it on your Bar exam application?
If not a crime why is the second occurrence different?