Copyrights, intellectual property and 'fair use'

MANCHESTER - You're filming a video that you plan to upload to YouTube or some other online website to share with friends, or perhaps, potential customers. In the background, incidental to the video you are shooting, music plays. It's just there, so removed from the subject of your main interest, that you aren't even thinking about it.

The video uploads, and the reaction trickles in. A few months later, you get a reaction you didn't expect.

The owner of the copyright of the recorded music playing in the background noticed your video, and the background music, and is politely but firmly asking you to take the video down until or unless you work out an agreement to compensate the copyright owner. Deciding that it's not worth the expense or the hassle, you pull down the video.

Experiences like that are likely to be more frequent, for artists, for businesspeople, and for the general public, as the Internet and intellectual property law interact, says Patricia Nelson, an attorney from Bondvile, Vt. who specializes in copyrights, trademarks and other works created from the mind, the basic definition of intellectual property.

"This is an area that's a minefield with everything that's out there, everything that's available, the way you can combine various work," she said. "It's a very difficult situation for people to try and figure out what they can use."

Just because someone else has placed something accessible on the Web, seemingly in a pubic domain, doesn't mean it's necessarily there for someone else to manipulate, modify or simply grab and use. The best advice - assume it's protected and check and see if there is a copywright restriction which applies.

"Just because it's out there on the Web doesn't mean you can take it for free," she added.

Copywright protection is a two-way street, of course. What might be an aggravating inconvenience when you see an image or perhaps some recorded music that, once combined with something else, produces a creation that's new and dynamic, may protect your own works of art, or commerce, or intellectual property (something you conjured out of your own imagination). After all, the original purpose behind copywright and intellectual property protection is to allow creators to profit from their creations, Nelson said.

But copywright protections don't last forever. And the goal of protecting creators from infringements and unfair use of their creation also rubs up against another objective of copywright and intellectual property - spreading the use of good ideas and their applicability across more than one platform.

A key test of whether someone other than the original creator can use someone else's idea, if merged with something else, is whether the new product is "transformative." Is the end result something so completely different that there really is only a marginal connection to the original idea?

Case in point: Several years ago, Patrick Cariou, a French photographer, went to the Caribbean island of Jamaica where he took pictures of local Rastafarians. He published a book that contained the photos, which sold relatively meagerly. The book went out-of-print.

Later, another artist, Richard Prince, used some of Cariou's pictures in an exhibit he was preparing for display in New York. Cariou sued, alleging that Prince made unauthorized use of his photographs without permission or compensation. Prince's lawyers contended that his manipulation of the original photographs -- which were assembled into collages - was transformative and did not violate what is known within the field as "fair use."

Fair use - an exemption from the control an original copywright owner that permits limited use of the intellectual property, usually for purposes such as commentary, news reporting, or scholarship - has four tests, Nelson said.

First, what's the nature of the use - is it for scholarship, educational or some other informative purpose?

Secondly, is the nature of the copyrighted work original in itself or deemed highly creative?

Third, what's the amount of use the copyrighted work is getting? a lot or a little?

And lastly, what's the effect on the market for it.

In the case of Cariou and Prince, a federal judge found in favor of Cariou in a decision handed down in 2012, but this decision was overturned in April 2013 an the appellate court level, which found Prince's use of Cariou's photographs to have a fundamentally "different character."

There things sit for now, amid consternation in the art world about what is or is not "fair use."

Nelson will be giving a seminar on the subject of copywright law in the digital age on GNAT-TV on Tuesday, Jan. 28, from 6 - 8 p.m. The interactive seminar will be held at the studio of the public access station, which is located in Sunderland, Vt., five miles south of Manchester on route 7A. For more information, call the station at 802-362-7070.


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