It's a special event today. Why? There's many students here today.
I have been wanting to delve more deeply into how copyright law works especially for students.
I'm happy to see students here. So as an institute of higher education,
you all intersect with
intellectual property every day.
And just to make clear,
there's different kinds
of intellectual property.
Copyright's what's I'm going
to be focusing on today.
There's also trademarks.
That protects logos, like the Nike swoosh,
it protects brand names, like
Crest or Colgate toothpaste,
those kinds of things,
Gallaudet University,
the name of the institution's a trademark.
But that's a whole topic unto itself
and for the day to day of what you do,
copyright is really central.
There's also patents and trade secrets.
I'm not gonna cover those today,
but my colleague, Robert,
is coming in two weeks
and he will be talking about
that when he comes here.
Now I think everybody has a pretty
instinctive sense of property.
You have a house, a car, a computer.
That's tangible property
that you own, right?
And you can sell it, you can buy it,
you can give it to somebody.
So intellectual property is
another kind of property.
It's property that comes out of creative,
intellectual process in your head.
But once it is created,
you have rights in that.
There are legal protections
that you as the creator
and owner have in that
intellectual property,
just as you would in a car
or a house that you bought.
So today the goal is just
to give you an overview
of how copyright law works and
how it protects the things,
the creative works that
you create every day here.
And now before we dive in to the law,
I wanted to set up a
couple of hypotheticals
that hopefully will relate to you,
especially because we
have an art teacher here.
I should have put your name in here.
So hypothetical, you can
take a minute to read.
So Professor Smith wants
to use these images
in her classroom when she's teaching
her students art history.
So the first thing she's going to do
is put them into her
PowerPoint presentation,
just like I've put them in here today
for teaching all of you.
The next thing she's thinking,
well, that was helpful.
I wanna make it available to the students,
now I'll just put it up on the
Blackboard course management
software system for
everybody to access there.
And then the last thing
she's thinking was,
well, that went so well,
I think I'll put it
in the art history
textbook that I'm writing.
I'll just put those in
and use them there too.
So, as we go through, try
to unpack in your head
what questions might arise
out of the copyright law
as you're thinking through
all the different things
she wants to do with these images.
And I want to take a minute
to talk about what they are
because that affects how
the copyright law works.
So the first image here I'm sure a lot
of you recognize is
Van Gogh's Starry Night
created some time in the 19th century.
Second is Andy Warhol's
famous silkscreen print
of Marilyn Monroe, which
incorporates his painting
on a photograph taken by someone else.
And the last is the Sydney Opera
House in Sydney, Australia.
Okay, now all of these scenarios
and questions relate
to me, the instructor,
or student, wanting to
use someone else's work.
You know, the Van Goghs or Andy Warhols.
Here's hypothetical two
dealing with works you create.
Okay, so there's a lot of
questions tied up in this.
First of all, is the members of the team.
And as we go through this,
you'll see that depending
on the kind of individual,
whether it's faculty, or
student, or graduate student,
or staff, that can have an
effect on copyright ownership.
Second is all the content
that's being used to create this app.
I mean, the team is
creating the livestream
but you're using this television footage.
And so what here is protected?
And at the end of the day,
who's going to own whatever
it is you've created?
So we'll dive in and the
first thing we wanna talk
about is what does copyright protect?
'Cause not everything is
protected by copyright law.
So here's the legal language.
Original work of authorship fixed
in a tangible medium of expression.
What does that mean?
So, original means you
came up with it yourself.
You created it, you didn't
copy somebody else's.
It has to reach a certain
minimum threshold of creativity.
The court looking at this,
they're not going to judge
if it's good or bad
art, or music, or games,
but it does have to have a certain level
of creativity to it.
Tangible meaning of expression.
So, everybody's watching.
You're about to see something
performed for the first time.
This is my horrible dance
which now is gone forever.
You saw it here, I'm sorry if it's trapped
in your memory forever,
but unless it was filmed,
oh my gosh, it is being filmed.
(students laughing)
So now it's fixed.
Right now it's in a tangible
medium of expression.
It's been filmed.
If I can confiscate that and
erase it, I would, but I can't.
So now it's fixed.
Had we not been filming here today
and I had just performed that for you,
it would have been gone
and over, intangible,
never fixed, therefore not
protected by copyright law, okay?
So if I do live performance like that,
unless it's fixed somehow,
filmed, recorded, put in a book, printed,
it's not protected by copyright law.
So, rule of thumb, if you
want to translate this
into more English instead
of light legalese,
any creative work with
some degree of originality,
and it's written down,
recorded, or digitized,
then it's protected by copyright.
Here are all, yes.
- [Woman] You mentioned
it's to be tangible.
A video tape is a tangible, right?
The internet isn't a tangible,
so how does that tie into?
- It's a good question.
In the sense that it is recorded
and can be called up again,
and copies made from it, it is tangible.
Intellectual property,
it has to be captured
in some way that it can
be reproduced, basically.
Yeah, before the internet,
it had to be physical, right?
But now it's just, it's not ephemeral.
A livestream is gone, a
recording is captured.
And that's basically it.
So the kinds of works are very varied.
We have architectural lights.
Now note, the building itself
is not protected by copyright.
I can go outside and take a photo
of any building here on campus,
but the architectural design
of the building is what's protected.
Musical recordings.
And in music we always have two works.
We have the underlying composition
that the composer wrote and then we have
the recording made by the
musician of that song.
Movies, again, something
that incorporates lots
of copyrighted works into it.
A movie is copyrighted,
so is the script, so is the soundtrack,
so are the actor's performances
that are captured there.
Books, as well as magazines, and journals,
and all kinds of written
works that get published.
Plays, musicals, Hamilton.
And you think about Hamilton, again,
you can break that down into
many copyrightable works.
You have the lyrics, you
have the choreography,
you have the staging directions,
and you have the program
itself which arguably
is a printed work that copies are made of.
And then in the digital
age we have software code,
apps that are designed, websites.
All of those are protected
by copyright law.
Sometimes there's options for
patent protection of these
if there's a certain
method captured in them,
but the coding, source
code and the get-put itself
is protected by copyright
because it's letters and numbers.
So what does copyright law not protect?
So unfixed expression,
what we talked about.
That dance that I hope is not seared
in your memories forever.
Ideas, so the idea that in your head
that you're thinking about,
that you're speaking about.
Until you write it down,
express it somehow in a tangible way,
it's just an idea.
It's out there.
If somebody else comes up with that idea
and you haven't actually put
it down some way in writing,
or somehow captured it, that
idea is there for the taking.
Anybody can have an idea.
You can't copyright an idea,
only the expression of the idea.
Facts, things like dates,
historical dates and events.
Scientific, E equals MC squared.
Equations, numbers, all of
those are considered facts
that are either discoverable or findable,
and so they are not, because
you're not creating it,
you're finding it, it's not
protected by copyright law.
And this can be frustrating
if you are in a field
where you encounter this
because you spend so many hours,
so much time, on your work in this area,
and you think, but I
put in all that effort.
But copyright doesn't come
because you put in a lot of effort.
It has to be that kind of creative work.
That's what terms if it's protected.
Also not protected by copyright law
are works in the public domain,
like the plays of Shakespeare.
So the easiest rule of thumb
is that anything published
before 1923 is in the public domain.
It's been there long enough,
no more copyright protection.
So think back to Starry Night by Van Gogh,
that's public domain,
that's there for the taking.
Once you get in past 1923
it gets a little trickier.
So we're gonna jump ahead
to the current law which is after 1978,
which is when the current
copyright law went into effect.
Anything you create and
put in a fixed format
is protected by copyright law
for the life of the author,
plus 70 years.
So it's my lifetime,
my kids, my grandkids.
It's protected through that whole time.
Where we have a murky gray
area is between 1923 and 1978.
And the reason is that during that time,
US copyright law changed several times.
The terms got longer,
there were different rules
about getting that protection.
Nowadays, registration is optional,
though a good idea and
I'll talk about that.
Back then it was required.
If you didn't register it,
you didn't get copyright protection.
So if you are trying to
figure out if a work you want
to use is a public domain or not,
and it's from between 1923 and 1978,
you'll have to do some more research.
It's not an easy answer.
And a couple resources I point people to,
the main one is if you
Google Cornell copyright,
there is a chart where they
lay out the different option,
whether it's published, unpublished,
registered or unregistered, the dates,
whether it's protected and until when,
'cause that changes.
So that's the first place that I always go
when I'm trying to determine
copyright status on a work.
Also Stanford University came up
with a renewal database
where they checked if works
that were initially registered
and were properly renewed.
That's really for just books and journals,
but that's a place to check
whether those ourselves are copyrighted.
Other things that are
protected are government works.
Obviously the Constitution is old enough
it would be public domain anyway,
but anything the government puts out,
whether it's statutes, or regulations,
anything from any of the
departments of the government,
reports, findings, those
are all public domain.
You don't need permission to use those.
NASA, any of those
things, are public domain.
And then here's just one
more example of facts.
Something in a phone book.
It's just organized, it's a bunch of lists
of names in alphabetical order.
There's nothing inherently
very creative in that
and so it's not protected.
These kinds of directories are
not protected by copyright.
Okay, so let's assume you
gone through the analysis
of something you created and you say,
yes, this is protected by copyright law.
What does that mean?
What does that get you?
So there are five rights
of the copyright holder.
Number one, it's in the name, right?
Copy, the right to make copies.
That I can take my PowerPoint
presentation today,
make a hundred copies on the Xerox machine
and hand 'em out to everybody.
Or I could choose to go sell
them if somebody is willing
to pay me for all those copies.
So that's part of copying then
is the distribution right.
The second right is not
only can I get copies,
I get to distribute them how I want to.
So that could mean selling them,
that could mean giving them,
could be putting on the internet
if I want people to find it there.
But I, as the copyright holder,
get to decide where and how
my work gets distributed.
And if I don't want it distributed at all,
that's my right too.
Third right is derivative rights.
So this is the rights to make something
from that copyrighted work.
An example over here
is the Grapes of Wrath by John Steinbeck.
A derivative work would be
to translate that into another language.
So if I'm the copyright holder,
if I'm the author, let's
say, I wrote the book,
I get to decide if I
would like to license this
to be translated to another language.
I still own the book, now
somebody else, though,
has the right to create that translation.
Unless we work out something different,
they will own that translation
even though I own the underlying work.
And then for other kinds of
works that are of this nature,
if it's a work that has to be performed,
then I, the copyright holder,
get to decide when and where to perform.
So you see there Alicia
Keys, singer, songwriter,
she gets to decide when her works
are publicly performed for the first time.
Similarly in art, the
artist gets to decide
where and when the work
gets publicly displayed.
So in copyright law people often talk
about publishing the work
and publishing is a word most
of us think about in terms
of books and publishers,
but in copyright law, it just means
making the work available to the public.
So that's what the
copyright holder can do.
Who is the copyright holder?
So let's start very similarly,
Georgia O'Keeffe, painter.
One person creates a work of art.
She is the copyright holder of that work.
Now we have John Lennon
and Paul McCartney,
songwriting team.
They jointly created their songs.
So they become what's
called the joint authors.
So if you have more than one
copyright creator in a work,
they jointly own it.
Now you might say, well, who
owns what part of it, right?
What if one of them writes the lyrics
and the other one writes
the song, the notes.
Copyright law doesn't look at it that way.
The analogy I like to use is
like putting cream in coffee,
and once they're mixed together,
you can't separate them out.
So as many contributors as
you have to a joint work,
they are all willing authors of that work.
And therefore, they are all
the joint owners of that work.
And when we get to licensing later,
it basically means that
I have contributed,
well, on a team of seven to work,
I could then choose to
license it out to other people
even without my co-authors agreeing to it.
I do, however, have to
share any monies I make
from that licensing with my co-authors
to make it to then doing that.
Now this is still authors
creating works individually.
Let's think about a company like Apple.
So if I work for Apple and
I create something at Apple,
who do you think owns it?
Apple, exactly.
The company owns it.
So if I am employee of a company
and I create something
as an employee of that company
in the scope of my employment,
it belongs to the company, right?
And so anything I created at
Apple would belong to Apple.
Sometimes questions arise in
places like Silicon Valley
because people there are
creating all the time.
Sometimes they're doing it
in their garage after hours,
and that's where some of the
greatest innovations come from.
And there has been a lot of controversies
as to when you're crossing
the line between what you do
as an employee and when you're
doing something on your own,
and when it all kind of ties in
to what your knowledge base is.
And the answer's really it gets worked out
in employment policies,
intellectual property policies,
and employment agreements.
And that's especially important
in a university setting like this
where we have professors
like Professor MacDonald
at Hogwarts, Harry Potter land,
Professor Frink on The Simpsons.
Sorry, question?
- [Woman] So what comes up more often?
So who would be paid more if
you were to create that work?
Like the company or the creator?
If you started thinking
about making ah-room
or if you created a company
and then you're selling something,
who ends up paying, getting paid more?
- If you create it on
your own, then you own it.
If you create it while
working at the company,
the company owns it.
If you create it and then
sell it to the company,
or convey it to the company,
it's gonna be what you two agree on.
You have to have some sort of contract.
And it might be that you convey
all the ownership to them,
or you might convey it but say,
I get 10% of whatever you earn on this.
So that gets negotiated with the company
if you sell them your
invention or your creation,
license it to them.
So I wanna talk briefly
about the reason ownership
and why intellectual property
policies are so important
in universities is
because you are not like
typical companies where the employer
automatically owns everything you create.
In university setting, first of all,
you have students, right?
Who are not employees.
So anything all of you create while here
still belongs to you.
The university does
not get ownership stake
when students create because
there's students here.
They're not employees.
If you are working
administratively for the library,
that would be different.
Because then you're there as an employee.
But as students in the
classroom creating things,
you own those works.
In addition, you have professors who, yes.
And what's interesting is that professors
are employees of the university, however,
in academia we have what's
called the academic tradition,
which is that professors
own their scholarship.
You might work at one
university, they move to another,
but the understanding is
always if I write a book,
I own that, because it's
my intellectual property.
And so most universities work out
a compromise where they say,
yes, technically under
copyright law we employ you,
we would own what you create,
but we will respect the
tradition, the academic tradition,
that professors and intellectuals
create their own works
and own their own works.
And that's what you build
into the policy that we say,
well, you're gonna have a
policy where we're not gonna
just go by what copyright law says,
we are going to respect these
intellectual property rights
of faculty, of graduate
students, of students.
And that's why working out
a policy is so important.
Where it can be a little trickier,
I think for professors in particular,
is that if it's a book or an article,
I think everyone's pretty clear
that belongs to the professor.
Once you get into course materials,
that can be a little hard to distinguish
because on one hand, it might be tied
to your scholarship if
it's a graduate seminar
that's very closely tied to your research,
but if you're teaching
introductory calculus
and you use the same curriculum
across the whole math department,
likely you're not creating very much
and it might be that in that case it makes
more sense for the university to own it.
Another and gray area that comes up is
if you have an innovative
idea that the university
is going to put a lot of funding behind.
Resources, they might
buy equipment for it,
they might give you a leave
of absence or a sabbatical.
At that point, they are
reinvesting a lot in this creation
and that's another place where
you want to have a policy
or have contracts that maybe will
approach the ownership
a little differently,
'cause that is kind of crossing that line.
Okay, so this relates to your question.
How does ownership of copyright change?
So basically for me to take my copyright
and give it to you,
we have to do what's called an assignment.
And it's literally something we sign,
it has to be in writing.
And it says I own this, just
like if I sold you my car,
you would put that in writing
the same way we will say
I'm going to assign my rights to you.
Another way you might do it is
through a work-for-hire contract.
So that's similar to being an
employee, but, for example,
I might hire you to
design websites for me.
And you put in the contract
anything I create for you, you will own.
Even though I'm the creator,
I'm giving ownership to you
under this work-for-hire agreement.
The other main way that copyright
gets transferred is through inheritance.
So remember we said it's life
of the author plus 70 years?
So when I die, my copyrighted
works go to my heirs.
I can spell it out in my will,
sometimes people want to
give them to an institution.
Famously, the author of Peter Pan decided
to convey his copyright to a hospital,
a children's hospital in London,
so all of the proceeds from that book
then go to the hospital
rather the individual.
But in most of the time,
people go to your children or your wife,
your spouse and so on.
Now the other way that I
give someone else rights
to use my works is not through permanently
transferring it through assignment,
but through a license.
The kind of thing you were saying
with your company scenario.
So, I like to think of copyrights
as being a bundle of
rights and we can divide up
that bundle in all kinds of ways.
So it could be that I want
to license you the translation right,
and I want to license to you the rights
to the chapter and distribute it broadly,
and I want to give you the right
to build an app based on it.
And in your case, I only want you
to have translation rights for 10 years.
But the app, I'll let it go forever.
And in some cases maybe I want it
to go on the app that
will sell, in other cases,
I might wanna just make
it available freely.
So, it could be for free,
it could be for a fee,
or maybe pay me a royalty
based on what you earn
on those translations.
It can be limited time
or it can be forever.
As many ways as you can think of it,
you can divide those out.
And as the copyright holder
you control all of that.
Now technically licenses do not have to be
in writing the way assignments do.
But as soon as you start to think
about how you would
enforce anything like this,
if I said I gave you a
10-year translation right
with 10% royalties and
we don't write that down,
you're asking for trouble.
So I always say try to put
these things in writing
because you have to have
a meeting of the minds
to have an agreement and
then they're no confusion
down the road when people try
to remember what they agreed to.
Copyright notice, you've
probably all seen this in a book.
It's the creator's name,
the year, copyright,
it says all the rights reserved.
What does that mean?
Why do we do that?
So the reason you do this
is I'm now putting the world on notice.
If I publicly publish this
book and I distribute it,
I want people to know I'm
asserting my copyright in that.
I don't want everybody copying this.
If I put it online,
I'm not just putting it
there for the taking.
So all the rights reserved is
I'm holding all those rights
until and unless I give
somebody permission.
Where can you put it?
Anywhere, books, articles, PowerPoints.
Class materials, I often
encourage faculty members
because I think when you live in a world
where everything's
available on the internet,
you often assume you can take
anything and copy it, post it.
That's technically an illegal copying
if you take your professor's syllabus,
copy it and put it on the internet.
And I think when faculty
put copyright notices
and explain that to their students,
it can lessen that confusion.
So why bother?
Well, first, as I said, put
people on notice so they know
you care about how and
where you work gets used.
It reduces the likelihood of infringement.
It also makes it harder down the road
for somebody to say, oh, I
didn't know, it was a mistake.
Because once that notice is there,
you're telling the world
I'm asserting my rights,
and then if they do it anyway,
that's what's called willful infringement.
I'm gonna do it regardless.
And that has an effect
later on in penalties.
Now the copyright notice
I can put anywhere.
As soon as I created
a work and I fixed it,
I can put my notice on it.
Registration is a little different.
In under United States Copyright Law,
and everything I've
been talking about here
is in the US Copyright Law,
just a variable of my country,
in the United States if
you register your copyright
then if there's ever an
issue of infringement
and you wanna enforce it,
you wanna go to court,
or you wanna sue somebody,
or send a letter of sell,
telling them to knock it off,
you establish your priority
rights in that copyright.
And then, if they try to
say, well, I didn't know.
I'll say, look, I have the
registration from 2018.
Clearly I'm the owner.
You have to now prove why
that's not infringement.
Shifts the burden of
proof to the defendant.
It's cheap, it's $55 one time,
you don't have to renew it,
they took that out of the copyright law
and removal of renewal necessary.
The other thing is,
you can't sue in the United
States unless you register.
So there's not much good in a copyright
if you can't enforce it in court.
That is only here.
In other countries you don't have
to register in order to sue,
but under United States
law you have to register.
If somebody asked earlier,
do I need to register in other countries
to get protection or?
The answer is that under a treaty
that the United States is in
called the Berne Convention,
if I were to copyright here,
it will be enforced in any other country
that's part of that treaty.
So if somebody infringes me in France,
I don't have to have a
separate protection there,
I'm protected if it's cloned here.
Another good reason to register is
if you go to court and you prevail,
you might be able to get them
to pay your attorney's fees,
and those could get high.
I've put up here some of the screenshots
from the Copyright Office portal
just because it's very
old and clunky interface
and I don't want you to
get there and think you're
on the wrong page 'cause
it looks so awful.
Because it's really just a bad design
that desperately needs updating.
But you'll go through the
portal, you'll create a username,
and that's what your
screen will look like.
And it won't be great, but
you're on the right page.
Okay, so, yes.
- [Man] You did an article,
what nudge in faculty popular,
in terms of a constant entering system?
For example, every miz-real that I make
or should it just be
explicit, like classical,
or should be everything
that should count for it?
Everyone has to pay
$50, $55 to keep saying
that I created it or should
I just do one with it,
the whole thing, and do
the whole one entry system?
Everything in proof constantly.
- Yeah, that's a great question.
'Cause it is expensive,
it does add up and can be time consuming.
Well, two things.
One is something like a website can be
a one time registration
which would cover all pages
of the website and the code underneath it.
Second, I would say, for example,
if you want to publish a book.
Before you start sending a manuscript out,
this is a good time to register it.
It's an unpublished work.
Because that's when you
increase the likelihood
that somebody might get
ahold of it and infringe it.
As far as course materials, I mean,
I think reality is most
faculty don't register it
because how likely are
you to be to really want
to take legal action on that?
But if you're thinking of
putting it into a book,
if it's going to be put an online course,
it's gonna be widely distributed,
I'd say minimally put the
copyright notice on it.
And the thing is, if it's
infringed and it's not registered,
you can still try and register it by then,
but then you'd only be
able to cover it when you
full recommend date a registration.
So you kind of lose the
protection going back.
So it's kind of a risk analysis
of how likely is
infringement and how harmful
it would be to you if it was infringed.
And just a little side note on that,
copyright registration can take anywhere
from six to 12 months
because the Copyright Office
is very backlogged.
There is a case pending in Supreme Court
that's gonna determine whether you can sue
from the date you applied to register
or when the registration issued.
So right now we don't know
because the courts need to decide that.
The recoverable damages in
copyright violations actual
is actual harm, commercial
harm that you can show.
Lost sales of your work, let's say.
For a lot of copyrighted works you might
never earn anything on them.
And so we have other ways of
protecting creators which is
that if you've registered
your work and you're suing,
you could recover between $750 and $30,000
for each work that's violating.
And, obviously, that's a lot
more if you're the kind of work
that most copyrighted works
are that don't make money.
The other thing is,
the reality is most
people don't go to court,
but what is powerful is
if you have a registration
and can send somebody a letter and say,
look, you violated my
work, I have the evidence,
here's the registration number,
I will sue you for statutory
damages so you need
to just pay me $10,000 and I'll go away.
The people who do this best
I know are photographers.
They're very good at tracking their works,
watermarking them when
they put them online,
and registering the copyright.
So they register them in bulk
collections which you can do.
And I've worked with
college and universities
and they get these letters,
and I tell them they just need to pay
because they have this lined up face
for copyright infringement.
They have the registration,
they have the evidence of infringement,
and there's nothing,
you're not gonna prevail
here and you did it.
That's why it's so powerful.
So how do you prove infringement?
Two elements.
First you need to show the
infringer can access the work.
If you've had your great novel
sitting in your desk drawer
all this time and nobody's ever seen it,
even if somebody comes up
with the exact same idea
and puts it out there,
if you can't show that he
could possibly have seen it
then you can't show
that they infringed it.
That one's fairly easy to show.
Second is substantial similarity.
You have to show there's
really enough similarity
between their work and
your work that it's clear
they would copy your
work when they made it.
And this sounds like
it's pretty easy to prove
but it's actually can
be somewhat difficult
to tease out what are undetectable parts.
Because first of all,
you may have other people's material mixed
in with your work.
I may have images from
someone else in there.
If that's what somebody copied,
I can't sue them for infringement
'cause they didn't copy my work,
they copied the person whose work
I was using with permission.
The other thing is as we talk
about the general protection for facts.
So if they're copying factual
information from my book,
that I didn't really add creativity to,
that's not infringement.
And then there's certain
sort of stock elements
like the Romeo and Juliet idea
of these star-crossed lovers,
teenagers from warring with families,
that's a common dramatic idea.
If I come up with some variant of that,
I mean, Shakespeare in the public domain,
but, for example, West
Side Story was a musical
in the '60s based on that same
idea of these two teenagers
in love from warring gangs in New York.
Well, that was using that idea.
If I'd come up with a play
based on two warring gangs
in New York and they have two
teenagers falling in love,
that's pretty obviously now
I'm copying West Side Story.
So if somebody is sued for infringement,
we wanna think about what are the defenses
that somebody might have.
'Cause you all probably
use a lot of materials
in your day to day life
and you have to at work,
and you don't want to be facing suits
for infringements all the time.
But there are a lot of
defenses built into this
and we're gonna go through all of these.
The biggest one is fair use.
So important to know
is, like these others,
it's a defense to infringement.
I don't just walk around
saying, fair use, fair use,
I'm doing this as fair use.
It's if you are sued
or somebody accuses you of infringement,
you say, no, I didn't,
it's not infringement
because it was fair use.
What is fair use?
The idea behind it is that
copyrights give their owners
an acknowledge on their works
for their life plus 70 years.
We do that because we wanna
encourage people to create works
and if took all their
rights away right away,
it might discourage
people from creating book,
and plays, and apps, and all these things.
On the flip side, under
the First Amendment,
we wanna protect free speech.
We wanna protect criticism,
and commentary, and parody,
and building on other
people's scholarship,
and you have to somewhat use their works
to be able to do those things.
So we get that balance between
copyright, and monopoly,
and the First Amendment
with the concept of fair use
which protects these kinds of things.
So under fair use, to
determine whether the use
you're making would be
considered fair use,
and therefore not infringement,
you have to walk through
this four factor test.
And we'll walk through these one by one.
But I wanted to show you this.
This here is sort of a classic example
that is a real case in
the last decade or two.
So President Obama, on
the left is a photograph
that was taken by a news
reporter, a news photographer,
I think for the Reuters,
you know the, Reuters press.
So, basically, he went to photograph Obama
at a conference he was attending,
and this basically documents
that President Obama was there.
That's why he took the photo,
that's what it was used
for in the newspaper.
On the right is a painting created
by an artist named Shepard Fairey
who took that same photograph,
but you can see he silkscreened over it
with these red, white and blue colors.
He put in Hope which was the theme
of President Obama's campaign,
and he says I've created something new.
This is no longer a news photograph,
this is now a work of art
that is meant to inspire,
that was meant to unite people around
what was then candidate Obama.
And this was actually an
actual lawsuit that happened,
where the photographer sued Shepard Fairey
for copyright infringement.
And the court found that,
they said this was fair use.
This was creating something new.
So how do we get to that result?
So the first factor of fair use test
is what is the purpose
or character of use.
Now you see the top of the list,
this is stuff I've already talked about.
Used for teaching, criticism,
commentary, scholarship, and research.
So those are, again, those are
things we want to encourage.
News reporting, freedom of the press.
Then there's something
called transformative use.
So what Shepard Fairey was saying is,
I transformed that photo.
And it's not just I changed
the way the photo looks
into this painting, I transformed the use.
It was the purpose or
character of the use.
This is no longer to
inform people in the news
that President Obama
attended this conference,
the purpose of this now is changed
to be this inspirational
image of the candidate.
So if you can show that a work
is transformative in that way,
and you can see if
you're thinking about it,
well, how when is it a derivative work,
and when is it a transformative work?
And I'll tell you, the courts wrangle
with that question a lot and
it's not always so obvious.
But that's the question you're asking.
Another thing that's protected is parody.
You see Michael Jackson came out with Bad,
Weird Al Yankovic is probably
the most famous parodyist,
he came up with Fat.
He took the same song,
he changed the lyrics,
he's making fun of the original song.
Parodies are really kind
of commentary or criticism.
Again, we wanna encourage
it, it's free speech.
It's healthy in a democracy
to have lots of parody and commentary.
Now if you're trying to figure out,
that can start to feel very de-fun-kle.
It's like you can say it easily,
purpose or character of use,
but to try to understand it
and apply it can be difficult.
So sometimes it's easier to
look at what's not fair use.
And arguably if you haven't
changed the purpose,
if the original purpose, let's
say, be a news photograph
and then I keep using it in
a different news setting,
then I don't transform the purpose.
If Michael Jackson was meant to entertain
but Weird Al is acting into parody.
They're doing something different.
But if you're purely
profiting commercially
and you haven't really changed the work,
that's a red flag to the
court that you're just trying
to capitalize on somebody
else's creative work.
So the more you're profiting from it
versus non-profit educational scholarship,
the more it's gonna skew
towards non-fair use.
Yes, ma'am, you had a question?
- Could you go back one slide?
- [Man] So I'm really confused
about what we see here.
You say in terms of Michael
Jackson his Bad album was
for entertainment and Weird Al's was
for entertainment as well,
so my question is he started off acting?
I think he's an actor, but I'm not sure.
- Yeah, it is confusing,
and if somebody had just
recorded that, the same song,
and put it out there
commercially without permission,
then that would be purely entertainment.
It would not be transformative in any way.
The reason Weird Al is
okay is because he's not
just recording and
entertaining the same way,
he's making a parody.
And it's a great question
because we try, everybody tries,
to make some money off
of what they're doing.
But if you're really
using somebody's work,
you're not adding anything
creative to it to make money,
that's gonna push back on unfair use.
So, I might write a
book, I hope it'll sell.
But the reason I'm writing
a book and commenting
on a song is not to cash in on that song,
it's to say something else about it.
- [Man] Got it (mumbles).
- Thank you.
The second factor we look at
is the nature of the work used.
The more it's factual, non-fiction,
less creative, that will favors fair-use.
Because, again, there's less
protection, we talked earlier,
for things that are factual
or scientific in nature.
So if that's what dominates in that work,
it's gonna favor a find of fair use.
On the flip side, if
it's a very creative work
and you're using that, that's
going to disfavor fair use.
You will more likely need permission.
The amount used.
What favors fair use is the small amount.
If I want to write about a
book and I use 3/4 of the book,
that's not very defensible.
So you wanna copy small amounts
and really just copy what you need.
If I wanted to make a commentary
about a poem and it's 14 stanzas long,
if I'm really just
talking about one stanza,
I just would use that
stanza, not the whole thing.
It's obviously in proportion to the work,
how big the work is.
And a smaller matter,
it's easier to understand
that concept of book, right?
Like if we're talking about a photograph,
you can't take part of
a photograph, right?
That doesn't make sense.
Arguably there a small amount
would be a low resolution,
small photograph, so you're
not impairing the market
for a large quality
resolutions of that work.
Another issue with the amount
is it matters what part you're taking.
So something like Bob Woodward's Fear book
about the Trump administration.
If I'm a journalist and I
just copied the best parts
and put them in an article and review
such that people are like,
I don't have to buy the book
because I got the best
parts in this article.
That's gonna be not fair use.
There was a lawsuit about
this with the former
President's biography where
it was all about Gerald Ford
and everybody copied
just one part of Nixon,
and nobody bothered to buy the book.
And so he sued and said,
even though you only
copied this small amount,
you copied the part that was gonna
make people like the book.
And then the last factor
is effect on the market.
If there's a ready market for licensing,
for permissions for the
work and you copy it anyway,
that's gonna argue against your use.
So how do we ways for,
how do you balance these four factors?
What matters the most?
And unfortunately, there's
no right line to go on.
Courts use what they
call a balancing test.
Different kinds of cases with
different kinds of works,
they will balance those
four factors differently.
So there's not one hard
rule I'm pointing to
to say what's definitely fair use
'cause it's gonna vary based on the case.
The best thing I can tell
you is it's important to try.
Even if you get it wrong,
it's important to try.
And the reason is that
if you are an employee
of a non-profit educational institution,
like a university, and you use something
and you reasonably
thought it was fair use,
a court will not assess
statutory damages in that case.
You can show you used it
and thought it was fair use.
And so I always encourage people,
even if it seems so impossible
to go through this analysis
and these courts are not
clear on the guidelines,
just try to get them down,
try to write it down,
and then if you're ever questioned, say,
look, this is what I was thinking
why I thought it was fair to use.
And if I'm wrong, I apologize,
but at least then you're not gonna
be facing $30,000 in damages.
Quickly I wanna touch on
the Digital Millennium Copyright Act.
So the DMCA was an amendment
to the copyright law
that went into effect in 2000.
And I will tell you,
it was Armageddon day
when it passed into law.
That's how this pace of Congress
keeps up with technology.
The most important
thing is that if you try
to circumvent digital rights protection,
like if you try to rip content
off of a TV in violation
of the protection that's on there,
there's no fair use defense for that.
That is a straight up copyright violation.
There are some limited exemptions
for film studies programs.
Somebody lobbied for it
but basically you can't get around that.
The second thing is it created
what's called a safe harbor for ISPs,
known as Internet Service
Providers, like Google, YouTube,
Facebook.
So much content gets posted
to these kinds of sites
that they can't possibly monitor it all.
And so infringement works
very likely get posted there.
And they said,
if we are liable for contributory
infringement for helping
to infringe whenever somebody
posts something illegal,
we're gonna go out of business in no time.
And we wanted to get some policy decision,
they wanted to encourage the
use of YouTube, of Google.
So they said to the ISPs,
as long as you have a mechanism
that if somebody complains
about infringement that you take it down,
we're not gonna hold you
liable for contributing
to that infringement
by creating this place
where people can infringe.
I'll touch briefly on Creative Commons
'cause I think a lot of
people have heard about this,
especially it grew out
of software developers
who were eager to share
their works, their code.
It's a lot of the
culture of Silicon Valley
that they wanna share and
build on each other's works.
So the idea is they wanna
basically develop publicly,
but it's not the same
exact spot as domain.
Remember we talked about public domain,
it's just when work falls
out of copyright protection.
Things that are licensed
under Creative Commons
are still protected by copyright,
they're just being made available
under a very raw license.
So if you go to the
Creative Commons website,
there are different levels
of licenses you can get
to apply to your work.
So some people might say, I
just wanna put it out there.
I don't know what anybody does with it.
Take it and run with it.
And that's the rawness license
of the Creative Commons.
Some might say, fine if you wanna use it,
but only for non-profit reasons.
I don't want somebody
commercializing this software
that I just put out there
for the good of humanity.
Or you might say, I'm
okay with you using it,
I don't care if it's commercial or not,
but I want attribution.
I want my name to be tied to it
so people give me proper credit for it.
And if you'll notice, all
the images I was using
in the PowerPoint had the
little attribution lines.
They were all Creative Commons licenses
that I found online.
And so, those Creative
Commons attributions came
with the images when I put
them into the PowerPoint.
Now arguably, I could have not done that.
There's something called a
face-to-face teaching exception.
Oops.
So in a setting like this where
I am teaching you something,
there's a kinda broad protection
to use copyrighted works.
Kinda goes back to the PowerPoint
of the art teacher, right?
You're allowed to do this
in a classroom setting.
There's some restrictions
that you see here.
It's only to be used by
teachers or students.
We have to be physically
in the same place,
like we are here, and
you're really teaching.
So this is not, if we shut this down
and we start broadcasting and filming here
for everybody afterwards,
and we put out popcorn,
that's not the face-to-face
teaching exception.
Now we're just showing a movie.
And has to be, again,
has to be a classroom,
has to be a library.
It can't be the dorm, it
can't be out on the quad.
That's a public performance.
Then you need permission for that.
And it has to be purchased legally.
You can't take a bootleg
version that you filmed
in the movie theater
and broadcast it here.
So TEACH Act is something similar.
It's basically trying to take
that face-to-face teaching
exception and move it into
the online instruction world.
It's another part of the Copyright Act.
Here it's very similar, but
it's just different enough
from the face-to-face
teaching exception that I
just caution you to tread
carefully because it's stricter
about how much you can
use and in what context.
That's why I say if you're gonna do it,
do a little research to
make sure you understand
what the rules are in
regards to the TEACH Act.
And just to be clear, it's
only for online courses.
It's not for something
for like Blackboard, CMS,
that complements an in-person class.
And there's a reference here,
if you Google the TEACH
Act of North Carolina,
you'll find good docs on that.
And these slides will be made available
to everybody afterwards.
So I just wanna leave you all now
with the reason we're
doing this here today is
because Gallaudet is beginning a process
of coming up with its own IP policy.
And so here are some questions
we want you all to consider.
- [Man] We got about three
to five minutes left.
Just so anybody can ask any questions.
And this was just the
beginning of a series.
We'll have more in depth
discussions in the future.
Things starting down now
to the United States.
We have a lot to offer the
world as a unique university,
as the assets to visual
language, discovery, et cetera.
So it's really important
that we're prepared.
It has to create and develop our
intellectual property policies,
specifically (mic distorts speech).
- [Man] So I went to Tracy Solomon.
I remember teaching this GSR course.
Our students are helping age timeline,
interactive timeline, including digital.
That video is very sur-de-fil, deviant,
there in the present now.
It was uploaded to YouTube, so
we take those YouTube videos
and then copy the QR code
to make it interactive
where you can scan the
QR code with your phone.
So that's gonna be a good
one that's hard to make up,
and I'm wondering is that film
which is a nine minute film,
if we were to clip these segments,
a two, three minute segment out of it,
is that still fair use?
Do we need to acknowledge the purpose
that's work or learning,
or come up with difficult uses like that?
How do you define that
in terms of what states
that Gallaudet University is owner,
and what's the best way to approach that?
- You have another hour?
It's so much wrapped up in that question.
First you wanna think about
who else contributing to this?
All the students that are involved here.
Are we all quite to consider
ourselves joint authors
of this work and joint owners.
That's kind of the first level.
And if there's an idea that you want it
to be owned by the
university or something,
then it's the students
agreeing to sign over rights,
or at least permissions for that purpose.
If you're accessing content on YouTube,
that is obviously copyright protected.
It depends on the level
of transformation you're
doing and the purpose,
and that where you wanna walk through
that fair use analysis.
If you are merely linking
to content on YouTube,
that's just directing
people to an address.
So that's always fine,
and that's often a good work around
if you don't wanna copy things,
but you wanna get people to see them
if you just provide a link to it.
Which is not really to
answer your question,
but I think it's useful in other context.
But if you are taking
it and you are trying
to manipulate it, change
it, or add things to it,
it sounds like that part of
use is transformative work.
And the fact that it's done
in an educational context,
for a teaching purpose,
sounds to me like it's
a very strong fair use.
Now that being said,
the creation sounds like
it's probably fair use.
The project, the copying.
If you then go to post it
somewhere and distribute it,
you just wanna make sure,
that's exercising another right.
If that arguably creator of
the underlying work would say,
well, now you're harming
the market for my work,
then you might have a problem.
So there's different steps of
the analysis and the creation,
and then distribution is
really a separate question.
So a lot of things you can
do on campus in classrooms
as collaborative learning
projects are fine,
it's often the problems that arise
when people put them back up online.
I mean, I've dealt with a
university where somebody,
they wanted to do this
wonderful student performance
where they film lots of
different departments
all lip sycning to a Lady Gaga song,
which is a great learning
experience, but once you post it,
she might have issues with that.
So that's where you have to be careful.
That's where you might need
permission once you start trying
to post it online and
publicly distribute it.
And frankly, that's where
it goes up off the radar.
As long as you keep it internal,
people won't know about it.
Once you go public, it's findable.
And on the internet in a
way it never was, this work.
- [Man] One situation I had of one artwork
by a theater famous artist
that Gallaudet purchased
and Gallaudet owns.
And there was an agreement
that I could change it to written work.
And you said artwork to
become a digital image
and from that it would
be opposed to copyright.
- Yeah, I mean if you have an agreement
that gives you that right,
that kind of agreement will always trump
what's in the Copyright Act.
That's why licensing
agreements are so important
because whatever the
copyright law provides,
that's the default position,
but you can always enter an agreement.
So it sounds like they
gave the physical work
to the university, and that's great,
but that's actually a great point,
is that when you convey the physical work,
you're not necessarily
conveying copyright with it.
So the artist has to also give you rights
to use the copyright to make
posters and ripcords from it.
I don't know if that
answers your question.
- [Man] Maybe that's wrong.
- [Man] I will tie into your question,
it's a very important
discussion because for me,
I thought that a person creates a painting
and then sells it, I thought
it includes the seal,
the Certification of Authenticity.
You've heard that phrase before, the COA?
- Yeah.
- So the seal way
is included in the master piece,
so if Gallaudet were to copy that picture
for publication, posters, et cetera,
they ask the author permission
and what's in the paperwork,
and copying his pictures,
use in a book, et cetera.
So maybe the author has
to do what works for it,
am I right or wrong?
- That's right, yeah.
I mean, the Certificate of
Authenticity is not the same
as copyright transfer or assignment.
So if you're only giving
somebody the painting,
unless you are conveying, in writing,
the copyright of the work,
the right to make
copies, derivative works,
those don't go with the physical work.
And so you would have to
get special permissions,
or, I know what often the libraries do,
is if they would like our museums,
if they're going to accept
a work as a donation,
the donor, the artist,
has to convey all rights, all copyright.
And you put that language
right in the gift agreement
so it's clear the university's
getting everything,
both the physical work and
the copyright in the work.
- [Woman] Any other
questions that you guys have?
I need one more question.
- [Man] So you said
about the medias on the--
- [Woman] One second, Roger,
Ms. Jordan will speak,
then come back to you.
Sorry about that.
(speaking faintly)
- [Woman] I have a question
and a problem to you.
So, specifically, copyright.
I think for establishing
policies here is nice
if we had, you know,
some of the universities
that we could get an
understanding of what kind
of incentives are being placed
for people who are innovative.
My understanding is
those who work for hire,
I know I'm hired for my work,
that means anything I do,
it's delivered to the university
versus the person who owns it.
For example, the fiz-e-for-dip
which is for students,
students have said their
working in universities
and students have their own rights,
so people who do innovative work
and are seemingly creating ideas,
I think it needs to be clear,
a clearer place of trust.
And feel motivated to create,
and not feel like we're
out to attain ideas
and keep it safe.
And a university to find
a good policy and balance,
I think that it's free to be creative,
free to act that copyright violation.
So hopefully that seeing it may be
if universities have good practices,
like that we should find those
and be able to work from them.
I think that's something
that should probably teach.
- If I could follow up on that.
I've worked with various universities
on developing intellectual
property policies,
and the best ones kind of
process where we make sure
everybody who has an
interest is at the table.
The students, faculty, staff,
and particularly library staff.
And university press, get them involved,
because libraries are often depositories
of copyright knowledge at university.
And also the best policies are not trying
to reinvent the wheel.
I mean, universities
have usually functioned
mostly very well on these types of things,
and so often we're
trying to just figure out
what you're already doing,
and then capture that in policy.
And where are there grays
in places that questions,
or problems, or
misunderstandings have arisen,
that where we try to kind of work out
to make sure it's clear going forward.
But we don't wanna throw
out what's already working.
We wanna just capture it in the policy
so everybody understand what the rules
of the game are as we go forward.
And it often is driven
because people are doing
these outside collaborations
with companies,
and one of the first things
a company will say is,
well, what's the university IP policy?
Are your office of, I
forget the name of it,
where you're collaborating
with outside companies,
they wanna see an IP policy.
They're used to seeing it.
So they wanna make sure
that's what driving you
to adopt it is 'cause you wanna
encourage this expansive collaboration.
- [Man] I definitely agree.
We do want to find out how we give
and then actually
encourages that emendation,
and gets that sense it's
to create partnerships,
to create volunteering ideas.
And I think that having being
in something will find balance too.
I think that wraps the conversation up.
Did you have final questions here?
- [Man] Yes, quick one.
So I just wanted to
ask you about copyright
on the internet.
We think about pics on the
internet such as forum,
you writing from or sometimes
people drove them off.
Can I take the internet
and put the copyright the
(background noise drowning out
speech) one of those things?
- So usually if you are posting something
on an online forum or a blog,
if you actually look at the
Terms of Use on that page,
they will say basically
anything you post here,
either you're conveying ownership
or you're giving me a license to use it
and reproduce it on my blog.
So that's where Terms of Use
that most people never read
are actually quite important
'cause they set the terms
of how people are writing
content on those pages.
- [Man] Depending on
each forum or each blog?
- Yeah, I mean, once you put
it there you should assume
its people will feel they can access it.
You're essentially giving
an implied license to others
when you put it in that kind of setting.
I mean, yeah, if you comment in a forum,
you can try putting a
copyright notice on it,
but I wouldn't recommend it.
And I'm happy to stay for any question
and people want to follow up.
- [Ryan] Well, thank you, thank you,
thank you for coming out,
and I hope you have a safe trip back.
And this is not the last time we're having
this conversation, there's more to come.
It's 3:10 now so I'd like to let you know
that it's very important
and I really want to
have a process to encourage creativity,
plus connect yourselves
at this very university.
And we really want to make a showcase
of your R&D work that you
contribute to the world.
So we this is a major win-win situation for all stakeholders here today.
So thank you again and we will be able
to share the PowerPoint
with anyone staying as well as to colleagues across campus,
and I'll be throughout this,
and I think that's all.
Thank you very much.
- Thank you, you're welcome.
(audience member speaking faintly.  End transcript.
