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Rich Stim

Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

Q: Thank you for updating the copyright overview on this site. What are the most important changes that you want us to know?

A: Because the update reflects changes from 2014 through 2016 it includes a few decisions that readers may be familiar with such as the Google book scanning decision (Author’s Guild v. Hathitrust, discussed below), the sequel rights to Catcher in the Rye, (Salinger v. Colting), the use of news – including business news and video clips – for transformative purposes (Swatch Grp. Mgmt. Servs. Ltd. and Fox News v. TVEYES, Inc.), the use of pop culture references (the “Who’s on First” comedy routine) within a play (Fox News v. TVEYES, Inc), and the ability to parody a popular movie (Point Break). (Keeling v. Hars). I think the cumulative importance of these and other cases that are discussed, is the evolving liberalization of fair use standards.

Q: Do we have any more clarity on Fair Use with respect to academic or library uses?

A: In order to provide more clarity, I think academics and librarians would like to see courts or legislators adopt quantitative guidelines – for example, establishing what percentage of a book or article constituted fair use. That seems unlikely based on the Eleventh Circuit rejection of the “10% rule” in Cambridge University Press v. Patton. The District court had allowed copying of 10% of a work as recommended by the Code of Best Practices, a set of fair use guidelines established by a group of publishers and academics. But the Eleventh Circuit rejected that standard and instead emphasized the importance of a flexible case-by-case fair use analysis. The good news for the academics was that on remand the majority of copying at issue was permitted under fair use.

The other good news for academics was the ruling in Author’s Guild v. Hathitrust. Most of your readers are probably aware of this case, in which the Second Circuit ruled that digital scans of a book constituted a fair use when used for two purposes: a full-text search engine, and electronic access for disabled patrons who could not read the print versions. The Second Circuit remanded as to whether “preservation” constituted a third fair use purpose, but the parties settled in 2015 before the issue could be litigated.

 

 

Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

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How will libraries hold onto ebooks and other digital files like mp3s so that readers and scholars in the future can still read them?  The current state of affairs relies on license agreements with publishers who in turn license to vendors, who in turn, license to libraries.  Hardly sustainable when files can and do disappear when either the publisher or the vendor no longer offer them.

Libraries rely on the right of first sale to lend print books, and need an analogous right in the world of ebooks and digital music. To that end, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries and the Internet Archive filed a brief on Feb. 14, 2017 in support of Redigi, a company that sells used mp3 files to music customers.  The brief argues that an evaluation of Fair Use should consider the rationale of the First Sale doctrine, and other specific exceptions. It argues that enabling the transfer of the right of possession should be favored under Fair Use.

It is essential to libraries, and the term existential would not be too great a term to use, to be able to own digital files, and care for them via preservation and library lends (e.g. to one person at a time) just as they do with print.  Can readers count on books being available a year or two or five after publication? The existence of libraries has made this possible from their inception until now.

The flexibility of digital content allows for an endless array of licensing opportunities (e.g. multiple simultaneous users) which is mutually beneficial to both publishers and users.  It is not practical to rely only on first sale for library delivery of econtent. The two modes for libraries to acquiring ebooks, licensing and first sale are not mutually exclusive but mutually dependent.

 

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Bloggers and artists often ask, “how much of a photo do you need to alter to avoid copyright infringement?”   Five changes? Fifteen?  The Seventh Circuit addressed the issue in the Kienitz v Sconnie Nation case recently. According to the court, Sconnie Nation made t-shirts displaying an image of  Madison Wisconsin mayor Paul Soglin, using a photo posted on the City’s website that was authored by photographer Michael Kienitz.

The court looked to the Cariou v Prince decision, but complained that its approach to appropriation art looked only at whether a work is “transformative” and doesn’t fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106(2).  This court analyzes the market effect, looking to see if the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).

The photographer in this case did not claim that the t-shirt was a disruption to his own plans to license the photo for t-shirts or tank tops. He did not argue that demand for the original work was reduced.

And as for Fair Use factor three, the amount and substantiality of the portion used … the court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”  The original background is gone, its colors and shading are gone, the expression in the eyes can no longer be read, and the effect of the lighting is “almost extinguished.”  “What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

 

cheshire cat

Kienitz v Sconnie Nation

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Stanford Technology Law Review

https://journals.law.stanford.edu/stanford-technology-law-review/online/ip-without-ip-study-online-adult-entertainment-industry

 

Kate Darling

Existing copyright policy is based largely on the utilitarian theory of incentivizing creative works. This Article looks at content production incentives in the online adult entertainment industry. A recent trend of industry-specific studies tries to better understand the relationship between intellectual property (IP) and creation incentives in practice. This Article makes a contribution to the literature by analyzing a major entertainment content industry where copyright protection has been considerably weakened in recent years. Because copyright infringement is widespread and prohibitively difficult to prevent, producers have been effectively unable to rely on the economic benefits that copyright is intended to provide.

Qualitative interviews with industry specialists and content producers support the hypothesis that copyright enforcement is not cost effective. As a result, many producers have developed alternative strategies to recoup their investment costs. Similar to the findings of other scholarly work on low-IP industries, this research finds a shift toward the production of experience goods. It also finds that some incentives to produce traditional content remain. The sustainability of providing convenience and experience goods while continuing content production relies partially on general, but also on industry-specific factors, such as consumer privacy preferences, consumption habits, low production costs, and high demand. While not all of these attributes translate to other industries, determining such factors and their limits brings us toward a better understanding of innovation mechanisms.

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As part of its new draft Compendium of U.S. Copyright Office Practices, Third Edition, we have guidance on registration for websites.  The draft of the full compendium is over 1200 pages and covers publication, recordation, notice, deposits, along with other topics.  Members of the public may make comments anytime before (or after) the Third Edition goes into effect on December 15, 2014. For more see  http://copyright.gov/comp3/

 

website and copyright

 

 

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[UPDATE from Peter Hirtle: That didn’t take long.  The authors of the handbook have responded to my specific issues below by updating and/or correcting the handbook.  A new version is available at http://www.law.berkeley.edu/files/FINAL_PublicDomain_Handbook_FINAL(1).pdf.  A very good resource has become even better.]

Stanford Copyright and Fair Use Center Advisory Board Member Peter Hirtle reviews Is it in the Public Domain?

Hirtle

Peter Hirtle, Stanford Copyright and Fair Use Center Advisory Board

It is very difficult to determine whether works are in the public domain in the United States.  That is why I had to create my duration chart as an aidemémoire: any time I tried to remember the various options, I got them wrong.  It is also why I felt compelled to write an article highlighting some of the traps lurking within the seeming clear-cut categories.  And it is why Stephen Fishman needs 700+ pages in his legal treatise, Copyright and The Public Domain. Continue reading →

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The Samuelson clinic has put together what  looks like a useful, thorough new handbook to help you determine if a work is in the public domain. http://www.law.berkeley.edu/files/Final_PublicDomain_Handbook.pdf

Most helpful is the complete FLOW CHART. We’ll put both the handbook and the flowchart in our CHARTS AND TOOLS section for your hand reference. http://www.law.berkeley.edu/files/Final_PublicDomain_Flowcharts(6).pdf

 

Public Domain Flow Chart