intellectual property copyright law and what it means to a working journalist
Post on 18-Dec-2015
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Intellectual property
Copyright law and what itmeans to a working journalist
Constitutional considerations
• Copyright is included in Article I, Section 8– “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”
Constitutional considerations
• Copyright is included in Article I, Section 8– “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”
• Where have we heard this before?
Constitutional considerations
• Copyright is included in Article I, Section 8– “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”
• Where have we heard this before?
• Article 6: Free press versus fair trial
Purpose of copyright
• Encourage creativity for the benefit of all
Purpose of copyright
• Encourage creativity for the benefit of all
• Purpose is lost when copyright term is extended too far
Purpose of copyright
• Encourage creativity for the benefit of all
• Purpose is lost when copyright term is extended too far
• Elred v. Ashcroft upheld decades-long terms
What can’t be copyrighted?
• Information and ideas, as opposed to a specific expression of those ideas
What can’t be copyrighted?
• Information and ideas, as opposed to a specific expression of those ideas
• Titles
What can’t be copyrighted?
• Information and ideas, as opposed to a specific expression of those ideas
• Titles
• Compilations of works with no creative value– Feist Publications v. Rural Telephone
Service Co. (1991)
Who holds copyright?
• Individual creator when he or she is self-employed
Who holds copyright?
• Individual creator when he or she is self-employed
• Client when relationship is “work for hire”
Who holds copyright?
• Individual creator when he or she is self-employed
• Client when relationship is “work for hire”
• Visions of online profits have tilted the balance against freelancers’ rights
Fair use
• Allows you to use a small part of a copyrighted work without getting permission or paying compensation
Fair use
• Allows you to use a small part of a copyrighted work without getting permission or paying compensation
• Especially valuable in criticism– Text excerpts– Sound clips– Song lyrics– Art shows
Four elements
• Purpose and character of use– Nonprofit, educational, and
“transformative” uses (such as parody) are more likely to be protected by fair use than commercial uses
Four elements
• Purpose and character of use
• Nature of the copyrighted work– “Expressive” works such as fiction,
poetry and music are less likely to be covered by fair use
– Unpublished works are less likely to be covered by fair use
– Out-of-print works are more likely to be covered by fair use
Four elements
• Purpose and character of use
• Nature of the copyrighted work
• Amount and “substantiality”– Not done by word count; based more on
whether the heart of the work was taken– Gerald Ford’s memoirs a good example
Four elements
• Purpose and character of use
• Nature of the copyrighted work
• Amount and “substantiality”
• Effect on market–Most important factor– If copyright holder can be shown to
have lost money, fair use is less likely to be recognized
Harper & Row v. Nation
• All four factors cut against The Nation
Harper & Row v. Nation
• All four factors cut against The Nation
• Economic effect was especially clear
Harper & Row v. Nation
• All four factors cut against The Nation
• Economic effect was especially clear
• A good decision? Or was journalism about a former president being punished?
The “Pretty Woman” case
Roy Orbison 2 Live Crew
Campbell v. Acuff-Rose
• Parody enjoys strong First Amendment protection
Campbell v. Acuff-Rose
• Parody enjoys strong First Amendment protection
• Is 2 Live Crew’s remake of “Oh, Pretty Woman” “transformative”?
Campbell v. Acuff-Rose
• Parody enjoys strong First Amendment protection
• Is 2 Live Crew’s remake of “Oh, Pretty Woman” “transformative”?
• Justice Souter says yes
MGM v. Grokster
• In Sony v. Universal, the Court ruled that the VCR was legal
MGM v. Grokster
• In Sony v. Universal, the Court ruled that the VCR was legal
• Napster and similar services were shut down because of massive copyright violations
MGM v. Grokster
• In Sony v. Universal, the Court ruled that the VCR was legal
• Napster and similar services were shut down because of massive copyright violations
• Grokster survived for a time because it lacked a central server
MGM v. Grokster
• In Sony v. Universal, the Court ruled that the VCR was legal
• Napster and similar services were shut down because of massive copyright violations
• Grokster survived for a time because it lacked a central server
• Lost because of “inducement theory”