Fair use
Fair use - the tradition that individuals may make use of copyrighted works for a range of purposes that are legal - has been on the ropes lately, under assault by forces that maintain there is no such thing as a fair use "right."
Conversely, many people mistakenly believe fair use gives them broad, indiscriminate leeway to appropriate copyright holders' works. Fair use does not mean you can take some wickedly cool video you found online and publish it to Ourmedia - for the simple reason that you didn't do anything to transform it and it's not yours to share. But you may track down the creator and persuade him to publish the video on Ourmedia or to give you permission to do so.
In short, the exact scope of fair use in cyberspace is anything but clear-cut. (Fair use goes by different names in different countries.)
As a result, we asked the University of California Berkeley's Samuelson Law, Technology & Public Policy Clinic to use its contacts to craft a set of fair use guidelines for Ourmedia.
Fenwick-West, a prestigious intellectual property law firm in San Francisco, took up the task and wrote the following policy. We thank them for their generous time and research.
Ourmedia's fair use policy
Before
you submit your work to Ourmedia, please read these general guidelines on how
you can respect the intellectual property rights of others and help ensure that
your work is not removed from Ourmedia.
If you post content to this site that appears to violate intellectual
property laws, we may remove it at our discretion. Please contact us if you believe your intellectual
property rights are being violated by material posted on Ourmedia. For examples
of postings that contravened our fair use policy, please see the Neighborhood
Watch section of this site.
The
best way you can avoid infringement is by obtaining proper permission from the
copyright or trademark owner before using it in your work, even if you only use
a small part of his or her material.
Simply crediting a copyright or trademark owner whenever you use his or
her material is not a substitute for obtaining permission. If you do not obtain permission and you are
not sure if your work falls within the fair use guidelines outlined below,
consider consulting an attorney or avoid using the material altogether.
Cyberspace
law differs by jurisdiction and is developing rapidly. Our fair use policy seeks to reflect United
States intellectual property laws because our servers are located in the U.S., but
recent legal developments may not be stated here.
Copyrights
A copyright
protects original works of authorship fixed in a tangible medium of expression,
such as published and unpublished written, visual, and audio works. Examples of copyrighted material may include music,
films, television programs, and photographs.
Copyright laws usually do not protect, among other things, ideas,
procedures, discoveries, and works in the public domain (i.e., standard
calendars). Be mindful, however, that
many things commonly thought to be in the public domain are not, so you need to
be very careful to do a little research before assuming that something is in
the public domain. For example, just
because someone posts something online does not mean that he or she is allowing
anyone to use it for any purpose. A
copyrighted work does not need to say that it is copyrighted, or have the
copyright symbol © on it. The copyright
owner has the right to copy or permit others to copy his or her material.
Copyright
infringement occurs whenever someone uses rights reserved just for the
copyright owner without proper permission from the owner. You could be guilty of infringement if you
improperly use another's copyrighted material, even if that use is
unintentional.
If you
live outside the U.S., be aware of the copyright laws governing your
jurisdiction. Many countries have
ratified international agreements and are members of organizations that seek to
protect copyright owners.
Copyright 'Fair Use'
The "fair
use" of another's copyright material means that, depending on your particular situation,
you can sometimes use a part of another's copyrighted material in your own work
without permission from the owner. You may
fairly use another's copyrighted material provided that your work essentially
transforms the copyrighted material into something original and creative, such
as a parody, satire, or political statement.
It is not automatically fair to use another's copyrighted material for a
noncommercial, educational, or private purpose, or to exercise your First
Amendment rights. It is usually fair use
to use just enough of another's copyrighted material that is necessary to
communicate your ideas. You can read
what the U.S. Copyright Office has to say about copyright fair use by clicking
on this link: http://www.copyright.gov/fls/fl102.html.
Examples
of actions that may infringe others' copyrights include the following: attempting
to make money from another's copyrighted material; completely duplicating
another's copyrighted material; creating a new work comprised mostly of
another's copyrighted material; and paraphrasing another's copyrighted material
without permission and attribution.
Trademarks
A trademark
is a distinctive sign that identifies particular goods or services as those
made or supplied by a person or entity. The
owner of a trademark possesses the license to use the mark. Examples of trademarks include the bulls-eye
symbol for Target, and word marks like Xerox and Macintosh.
Trademark
infringement occurs whenever someone uses rights reserved just for the
trademark owner without the owner's permission.
You could be guilty of infringement if you improperly use another's
trademark, even if that use is unintentional.
If you
live outside the U.S., be aware of the trademark laws governing your
jurisdiction. Many countries have
ratified international agreements that seek to protect trademark owners.
Trademark 'Fair Use'
The "fair
use" of another's trademark means that, depending on your particular situation,
you can sometimes use another's trademark in your own work without permission
from the trademark owner. You may fairly
use another's trademark inconspicuously in your own work to identify that
product or service, while avoiding the risk of misattributing your work to the
trademark owner. Fair use often permits
“fair comment" of another's trademark, such as comparing your product to
another's in an advertisement. A work
that incorporates another's trademark in a genuine parody or satire is often
fair use, so long as it is not a disguised attempt to compete with another's
products or services. You can read what
the U.S. Patent and Trademark Office has to say about trademark fair use by
clicking on this link:
Examples
of actions that may be infringement include altering another's trademark or the
product or service associated with it, or directly or indirectly making false
claims about the trademark or product or service with that it is associated.
Additional resources
That ends Ourmedia's fair use guidelines. If you have additional questions, the following pages may be of help:
» Giglaw: What is "Fair Use" in Copyright Law
» Gigalaw: Photos and Fair Use Online
» Nolo law center: When Copying Is Okay: The "Fair Use" Rule
