It is so interesting to see how copyright law now touches some aspect in many careers. Recently, my longtime friend, college roommate and now turned art teacher reached out to me with questions about copyright law. She wanted to educate her students and fellow art teachers not only on art, but the legal aspects as well. You know I LOVED that!
Some of her questions included:
- When is it infringement?
- When is it an original work of art?
- What is difference between being inspired and copying a piece?
All very good questions. While, any analysis is very fact specific, I can provide some general guidelines for students and teachers to keep in mind. The questions were so good that I have divided this post topic into two posts. So, be sure to tune in next week.
Let’s Talk About Infringement
Copyright law offers protection to not only to the overall finished product, but can sometimes offer protection to the elements contained within the finished product. An overall finished product is a bundle of intellectual property rights. For example, let’s look at one of my favorite Disney movies Beauty and the Beast.
Disney has a valid copyright in the completed film. However, they also have copyright protection in elements that are contained within the film. There is copyright protection to the music in the film. There is copyright protection in the characters Belle and Beast. There is copyright protection in the screenplay. Therefore, you cannot separate a Disney character from the film and claim that it is no longer protected. Copyright protection very much extends to the characters contained within animated films.
To use the characters in the same manner, especially if you profit off of it, is technically considered copyright infringement. However, there could be an exception.
Let’s Talk About Fair Use
Fair use is a defense granted under the Copyright Act. Defense. Meaning, not a justification, but rather something you can claim once you are being sued. Meaning, you are already in hot water by the time you can, in a very technical way, claim fair use. The biggest thing to remember about fair use is that there is no bright line rule. It is extremely fact specific and something a court would have to decide.
17 U.S.C. §107 states “teaching (including multiple copies for classroom use), scholarship or research” are “favored” fair uses. Notice use of the word “favored.” This means, if your use is for a school project, you are not selling it and it is merely used as a teaching tool then there are strong arguments the student based project is under scholarship, thus one of the favored fair uses.
But, wait there’s more. Even though the use is “favored,” a court will still not stop there. A court will then consider four (4) factors to determine if the use is in fact fair.
The four factors are:
(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.
What this means is even if the use is “favored,” such as teaching or scholarship, if the four factors tip to infringement then you can still possibly be found in violation of copyright. Let’s look at an example.
Let’s say an art teacher really loves teaching out of a certain book. However, the book is cost prohibitive for students to buy every semester. The teacher gets the great idea of scanning in 10 of the 15 chapters and putting them online for the students. Fair use, right? Well, not exactly.
It is true the teacher is using the chapters for scholarship. However, when you examine the facts in light of the four factors a court would look to, this falls to infringement. Factor number one is for educational use. This factor could go either way depending upon whether the school is a public or private school, a college or high school. The nature of the copyrighted work asks – how creative is the project? Here, an art book is extremely creative not only in the overall layout of the book, but as discussed above, in each of the individual elements contained within the book. Factor two tips towards infringement. Factor number three no doubt also tips in favor of infringement because she is copying and providing 10 out of the 15 chapters, 66.6% of the book. Factor four tips towards infringement, too, because the teacher in essence is usurping a sale. But for her copying, the school/students would be purchasing the book each semester.
While scholarship and research is one of the favored fair uses, the analysis cannot stop there. In the school setting an examination of the four factors is also necessary. Some good questions to ask in the school setting would be:
- How much is being used?
- Is the use in such quantity that you would normally purchase the product as a whole?
- Are you using it every semester?
- How much of the book, program, curriculum are using? It is a few pages or entire chapters?
- For student projects, is it to teach a skill? Will the students make money off of their projects?
Next week I will look to other laws and factors to consider when art and school are mixed. What did you think of this post? Share with your educator friends, take part in the Comments section below and Stay Tuned In!
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