November 14th, 2009

Dylan Feng Shui

Copyright and Fair Use: UR DOIN' IT WRONG (And How To Do It Right)

So I know I've posted about fair use vs. infringement of a copyright before, sometimes at great length (and even regarding its relation to the issue of orphan works (remember that fun?)), but I feel like maybe some of the Internet needs to revisit the concept.FN 1

Recently my friend cleolinda had another run-in with someone re-posting, in its entirety and without any attribution whatsoever (including the copyright notices Cleo has interspersed with text in white (i.e. invisible unless you highlight it) font, which had been deleted from the re-posted copy), one of her movie parodies, Twilight in Fifteen Minutes. (Please note, even though it is not necessary to do this to protect your copyright, Cleo always posts specific notices at the ends of her parodies stating that her work is protected and what, if anything, readers may re-post. When authors do this, people should pay attention to these notices.) Re-posting is a problem she has encountered several times in the last few years (interestingly, there is now a website that can help you determine if your internet words are being copied and re-posted. Try searching for the Twilight M15M link, or any of the parodies, and you will see that re-posting without attribution is a common issue for Cleo.) Although fortunately the most recent re-poster eventually removed the parody upon request of some of Cleo's readers and finally Cleo herself, some replies from the poster that were made prior to removal, in response to comments politely asking that the post be removed or at least attributed, included:

I found it in an uncredited bulletin so chill the fuck out hahahah.

lolololol the author. It's a fucking Twilight parody. You're a moron. If she didn't want it posted on the internet, she shouldn't have posted it on the internet. Good luck with that lawsuit.

it's not even like a legit literary work. she re-worded a movie. congrats, here's a cookie.


These comments make me think that perhaps some of us are not sure about the scope of U.S. copyright law and may need a refresher course, particularly regarding Section 107, Fair Use, which is what allows us to, under the right circumstances, copy or use part or all of an existing original work without being found liable for copyright infringement. First, let's be perfectly clear about three things:

1) This post is not meant to attack the person who recently infringed on Cleo's work - rather it is meant to (hopefully) be educational and helpful. This stuff can be confusing! It is not generally taught in schools (except for law schools and perhaps some college classes). Don't feel bad if you've misunderstood what you can and can't do. But please, make the effort to educate yourself as to your rights versus the rights of the copyright owner before using any part of another's work (hint: reading this post and the links above might be a good start).

2) Under U.S. law, creators of an original work own an exclusive copyright in that work upon its creation. The creator does not have to register for a copyright; it comes into existence when the work is fixed in a tangible medium (please note, I will not be touching here on works for hire and the like, where the creator contracts to give ownership of the copyright to another. That's another issue). This copyright gives owners several exclusive rights to control the use and reproduction of the work, as listed in Section 106 of the copyright laws. If you use a copyright owner's work without permission, and the use infringes on these exclusive rights, you may be held liable for said infringement.

3) The concept of fair use is what allows people to sometimes use part or all of an original work, in some specific instances, without being found liable for infringement. Please note, fair use is what the law calls an affirmative defense. This means you have no "right" of fair use. What you have is, if you get accused of infringement and/or sued, the opportunity to raise, as your defense, the concept that your use of the work is fair, i.e. passes the legal test for fair use as set out by the law and the U.S. courts. The fair use defense does not guarantee you will not be found liable of infringement. Your use has to actually pass the legal test, which is applied on a case-by-case basis, first.


So now that we've got the basics above down, let's move on. There are a lot of things I could cover here, but I've already covered some in the previously-linked entries, so in this one I'm going to focus specifically on some of the problems Cleo has encountered as embodied in the misconceptions of the poster quoted above, before noting some uses of the particular work infringed on here that would be found to be fair under the law.


Misconceptions

1. I found it in an uncredited bulletin so chill the fuck out hahahah.

Believe it or not, original works of authorship, even if not credited, are still protected by copyright law. This is actually the subject of the orphan works posts I have cited above (and my 40-something page paper on orphan works, whee). The Copyright Office defines orphan works as “copyrighted works whose owners may be impossible to identify and locate.” If a work is "orphaned," this does not mean the work is fair game to be used indiscriminately. What it does mean is that under the current law, if a person wishes to use an orphan work in a manner that goes beyond statutory limitations or exceptions to copyright such as fair use or copying only elements not covered by copyright, he must take the risk that the copyright owner may appear after use has begun in order to enforce his rights. If the owner does appear to enforce his rights, and the use has violated those rights, the user may be held liable for infringement under U.S. copyright law. Therefore laughing maniacally and telling people to chill out about the infringement? Probably not the best idea.


2. lolololol the author. It's a fucking Twilight parody. You're a moron. If she didn't want it posted on the internet, she shouldn't have posted it on the internet. Good luck with that lawsuit.

There are two misconceptions in this comment, the first one being that because the work is a parody, it is somehow not a literary work and therefore is fair game for copying. This is incorrect. Not only can parodies be legitimate literary works (often published by well-regarded and well-established publishing houses, as Cleo's book of Movies in Fifteen Minutes has been), the parody format has been used over the years by some of the most well-known classic authors in the realm of literature (hello, Mark Twain, James Thurber, and Edgar Allen Poe!). Note that Campbell v. Acuff-Rose Music, Inc. was the Supreme Court case that established that a commercial parody (such as Cleo's Movies in Fifteen Minutes as published by Orion) can qualify as fair use. I have written about this elsewhere in more detail, and also discuss it below in point 3.


The second misconception in this comment is the incorrect assumption that because something is posted on the internet, it may be re-posted at will, and that the original author should have no expectation of copyright protection in internet-posted works. U.S. copyright law states (in Section 102) that:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works; ...


Works of authorship, including literary works, fixed in "any tangible medium of expression." I doubt that any of us would argue that text posted on the Internet is not a tangible medium by which we express ourselves, and I have explained in both this point and point 3 that a written parody is a legitimate literary work. Therefore...dun dun dun! Original text, such as an m15m parody, that is posted on the internet, is protected by copyright law! I know, it's amazing. The internet is great, but it isn't a free-for-all. The law still applies. Sorry, folks!


3. it's not even like a legit literary work. she re-worded a movie. congrats, here's a cookie.

Ok, I've covered the fact that a parody is a legitimate literary work above and in previous entries, and I've talked about both parodies and the other misconception in this statement (that it's not a protectable work because it borrows from a previous work) before, when someone questioned whether Cleo could own a copyright in a literary work based on another work, opining that that is a derivative work and therefore not copyrightable. I'm going to cheat here and re-post what I wrote about parodies and derivative works in response to that other question, since it's, you know, already written and everything!


Sections 106 and 106A of Title 17 are the statutes that deal with the rights a copyright owner has. Both sections contain the limitation, "Subject to section 107," which is the section dealing with fair use. Fair use is one of several limitations to the absolute ownership of a copyright by the original owner.

Section 107 lists several uses of a preexisting work that are considered "fair" under the law. The list is not inclusive, but this work could be seen to fall under at least two of the listed uses, "criticism" and "comment." Courts apply the fair use doctrine on a case-by-case basis - i.e., unless someone is sued, it doesn't become an issue. If sued, if the courts, using the four-factor test outlined in the statute, determine that the work is one of those listed as permited under section 107 or a similar type, the work does not infringe on the original copyright under Title 17.

The first factor of the test for fair use is "the purpose and character" of the work; the question asked is whether the new work adds something new to the old, i.e. is transformative. The Supreme Court has held that parody is transformative (Campell vs. Acuff-Rose Music, Inc. (1994)), and that "it can provide social benefit, by shedding light on an earlier work, and in the process, creating a new one..." The court also stated that the more transformative a work, the less important other factors of the test, such as the commercialism of a work, are in weighing against a finding of fair use. The court makes it clear that parody (like this Movie in Fifteen Minutes) is clearly and obviously transformative, and gives that great weight in the four-factor test.

With parody, the Supreme Court notes, a work may be borrowed from somewhat more permissively than in some other cases, because parody relies for its success on people recognizing the work from which the parody is departing. Therefore, enough of the original work may be used to gain that recognition by a general reader. The court held that as long as "no more is taken than necessary," some amount of borrowing for the purpose of the commentary is permitted.

What you [the commenter on the original post, who was quoting the Copyright Office's definition of a derivative work] referred to earlier is correct: a derivative work is a work based on a preexisting work that, as a whole, represents an original work of authorship. However, a derivative work may still be copyrighted. The copyright of the derivative work extends only to the new material contributed to the original work. That copyright is independent of the preexisting rights to the work.

To sum up, in the case of Twilight in Fifteen Minutes:

1) Cleo can, under Section 107 and current case law, borrow as much material from the original movie and/or book as is necessary to make the work that she is parodying recognizable to the reader, and to make clear her commentary on the original work;

2) Cleo can copyright all original elements of this parody.


So there you have it - some common misconceptions about copyright and fair use, debunked.


Some Fair Uses of Cleolinda's Work

Now, after reading the above, you might be saying to yourself, "but I really, really LOVE Cleo's parodies! They make me laugh, and I just want to share them with EVERYBODY. Are you saying I can't do that?" Or, you may be saying, "I have an opinion about something that she wrote in her parody. I want to post a literary critique of it. But I have to quote her work to do so. Is that allowed?" Or you may be saying, "Cleo is the foremost expert on the Twilight phenomenon and all that it entails. I want to quote her for my news article. How do I do that without getting in trouble?" Or perhaps, "I really loved the literary references she made in this parody, or the use of the parody format itself. I want to show the students I teach how this format was used to critique and amuse. Can't I share this with them?" Or even, "I want to cite Cleo in my paper on Twilight. Can I?"

Guess what? You CAN actually a) share the parody with your friends; b) critique or comment on the parody; c) use Cleo's parody in your news article; d) use the parody for teaching purposes; and e) cite Cleo's parody in your scholarly work. BUT WAIT. BECAUSE THIS IS VERY IMPORTANT. There are RIGHT WAYS AND WRONG WAYS to use another's work, and only THE RIGHT WAYS will give you the legal protection afforded by the fair use defense.

The section of U.S. copyright law dealing with fair use states:

§ 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.



If you don't want to accidentally or purposely infringe on another's rights, your use of the original work needs to fall within the parameters of the four-factor fair use test. I know, this test is written in The Dreaded Language of Legalese, and applied by the courts in individual cases, and thus can be hard to interpret on the fly. So here, I give you easy examples of the Proper Way to use Cleo's work in the ways permitted by fair use, To make it simple, let's use the ever-popular Animaniacs "Good Idea; Bad Idea" form of explanation.FN 2

A) Sharing the parody with your friends.

Good Idea: Posting a small portion of the work with a credit or attribution and a link to the whole of the work.

One factor the courts look at is "the amount and substantiality" of a use. This is a very important factor if the only purpose of your copying of the work is to show it to others. For this use, the proper way to go about it is to quote a relevant and reasonably short piece of the work, and then link to the whole of the work with a proper citation and attribution. E.g.:

"Hey all! I just read Cleolinda Jones' Twilight parody, and it cracked me up! This part made me laugh so hard:

EDWARD: I AM VAMPIRE. HEAR ME TWINKLE.

Check out the rest of it here!"

(You can quote more than one line, of course. But for something like this, quoting more than a short scene or two from the whole would generally be too much. Here is someone who did it right.)

Bad Idea: Posting the whole of the work elsewhere. (Please note: Even if you post the whole of the work with a link and an attribution to the copyright owner/author, this does not mean you are in the clear. Courts would look to factor 3 of the fair use test here and almost certainly determine that using the whole of a work goes beyond fair use.)

REALLY Bad Idea: Posting the work and claiming it is your own, and/or posting the work with a few changes, additions, or deletions and claiming it is your own. Yes, these have both happened to Cleo.


B) Critiquing or commenting on the parody.

Good Idea: Quoting small portions of the text interspersed with analysis.

If you are critiquing something, you may have to quote several portions of the work in order to get your point across. This is permitted under fair use, just as using some portions of a work to get the point of a parody across is permitted. The point is to make sure that you use pieces of the work that are directly relevant to the commentary or critique you are providing. For example, if you were to write a positive critique on how Cleo uses references to common tropes and popular culture to humorous effect in her parodies:

"One of the reasons Cleolinda Jones' parodies resonate with the masses is because she highlights her humorous works with references to popular culture and commonly recognized literary tropes, including plot points, as seen here in her Twilight parody:

BELLA: Wait, what's going on at the police station?

EDWARD: Wait, why is my not-dad there?

CARLISLE: Bella, I'm so sorry... your father's weird friend was killed by a feral plot point.

BELLA: I didn't even know we had those in this movie!

CARLISLE [significant look ]: I know. They're very rare in Forks.

EDWARD [mind-reading ]: D:<


Bad Idea: Quoting part or all of the work and then saying, "I really loved this, it made me laugh!" or "Man, this Twilight parody is dumb!"

Neither of these qualifies as a sufficient critique or commentary that would justify re-posting the work.


C) Citing Cleo's parody in your news article.

Good Idea: Posting a news article in which you discuss some aspect of Cleo's parodies. (And here I get to just link things, as several people have done this properly.

NY Mag's Did Breaking Dawn Ruin the Twilight Series?

MSNBC's A Beginner's Guide to Twilight

The Guardian's Tiny Things, Tiny Minds

Bad Idea: Posting Cleo's parody in your blog with "Breaking News! Cleo Has a New Parody Up!" and thinking that's a news article.


D) Using the parody for teaching purposes.

Good Idea: Use Cleo's parody to...wait for it...explain the differences between fair use and infringement under U.S. copyright law! (See THIS POST.)

Bad Idea: Post the parody in its entirety with the comment: "This is how to write a good parody, aspiring writers! Learn from it!" or "Here is an example of a parody. Look at that!"

(Please note: an actual teacher may be permitted to, say, print out copies of a work to hand out to a class or similar, if the purpose of that is for the students to then look at and analyze or learn from the work in some way under the guidance of the teacher. This is a different situation from someone re-posting on the internet, as is the main problem here, and saying it's so people can learn from it.)


E) Citing Cleo's parody in your scholarly work.

Good Idea: Using a quote to illustrate a scholarly point.

For example, in a piece on, say, how people on the Internet invent new words that then become included in the popular lexicon:

"Cleolinda Jones coined a new word, 'fursplode,' in her popular Twilight commentaries, which she then used in her Twilight parody to refer to Jacob's and other Quileutes' violent transformations into werewolves:

[And then Jacob shows up with his as-yet-unfursploded posse, who are all like, did you bring any Cullens? BECAUSE THEY CAN'T COME HERE.]

This word has since shown up in The Urban Dictionary."

Bad Idea: Writing a paragraph or two about how parodies have become popular on the internet, and concluding with, "here's one of the most popular ones I've seen," before posting the entire parody.


To Summarize: As you can probably glean from the above examples, re-posting the entirety of someone else's copyrighted work without prior permission, even with a credit or attribution, is almost always an infringement of their exclusive rights. Don't do it! However, as shown above, there are several ways in which you may quote, refer to, critique, etc. the work without getting in legal trouble. Just be careful to remember that someone else owns the work and consider how you are going to use it and whether that use is truly "fair" under the legal test before you do so (and hey, don't forget you can usually ask the owner's permission to use part or all of a work before using it. I highly recommend this course of action!).


WELL. I think that about wraps up what I have to say about fair use, copyright infringement, and the Internet today. Check back...some other time for more thoughts on legal things. And I really do hope this was helpful and/or some of you all out there have learned something from it! Remember: it's really not cool to steal someone's stuff and re-post it on the internet just because it's easy to cut and paste. Not to mention it's really not legal. So try to follow the law, eh? Thanks.


FN 1: Please note the above is not specific legal advice aimed towards any person's particular situation.

FN 2: Which use I would be able to defend under Section 107 because I am borrowing a small part of the original concept as a pop culture reference to illustrate examples in a simple manner while teaching. :)