Fair Use Under Copyright Law Feed

Going Public: Speaking Out! Public Disclosure of a Copycat Complaint

Going Public-speaking-up
Sometimes when the copying is blatant and
direct communication between the two parties fails, the designers, artists or makers who have been wronged by a copycat consider reaching out to the public for support to draw negative attention to the misbehaving copier.

Public support can be a helpful move, if done thoughtfully, particularly for a small company copied by a large company. Before you take this drastic step though, be mindful of the potential consequences, and think carefully about how you’ll plan the public statements. Public shaming is particularly tempting when you’re angry. Before you go to the Internet to publicly vent frustration, consider what your long-term goals are and the impact your behavior will have on your business.

This is the third post by lawyer Rachel Fischbein about dealing with a copycat situation. The first post was "What Is A Copy? Copycat?"  The second post was "Initial Copycat Communication." ASK Harriete recommends that you read these posts before taking any actions. Fischbien recommends focusing on the issue, not the people involved.

Rachel-Fishbein-headshot
The opinions expressed in this post are by the author, Rachel Fischbein, Esg.,
founder of Law On The Runway, and do not necessarily reflect the opinions of ASK Harriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete.  As with the previous guest blog posts by Rachel Fischbein, please consider this blog general information, not legal advice. Should you have a concern about copyright infringement, please speak directly to an attorney to get advice on your unique situation.

      _____________________________________________

When preparing to make a public statement about the copycat incident, refer back to your notes of the timeline and educate yourself on copyright laws. Make sure what you are saying publicly is accurate, and you’re being fully truthful. You may want to consider publishing a longer document as a blog post, a downloadable document, or even a website to explain the copying and the interaction with copycat. Include all the important details, so it's clear you aren’t trying to spin the truth in short social media posts. Curious minds will be looking for the facts needed to come to their own conclusion. Walk the readers through the legal standards of copyright infringement and how the facts of the situation show infringement. You may want an attorney’s assistance for this.

While you may be dealing with difficult personalities of the copycat, always keep the statements and public conversations focused on the copyright infringement facts, and not about the people who represent the copycat business or designer. You may encounter a person on the copycat’s side who is deceitful and disrespectful, but your statements shouldn’t be about that person’s character traits directly. Limit your statements to the actions taken by the copycat and the copycat's  representatives.

You may post copies of emails or other documents sent to you by the copier, if the documents or emails were not sent after a promise of confidentiality from you. Be cautious though when using most intellectual property created/owned by the copycat. You may post only want it necessary to make your point, using the Fair Use doctrine of Copyright. Do not copy their logo to add their branding or unnecessarily take screenshots of their website for reposting. When in doubt, consider linking directly to the copier’s website. Be sensitive to their intellectual property and respect any information that they may have shared with you with an expectation of confidentiality.

 

Going-Public-reputation-showcased
Remember your reputation is also being publicly showcased.
This public statement is not only a reflection of the copycat’s business practices, but your reputation as well. Write your statements with professionalism and care. Try to showcase your logic and a desire for justice. Have a friend who doesn’t know about the issue read your statement first, before you publicly post anything. Ask for honest feedback about how your business looks in light of the posting. Does the statement foster the type of reputation you’re trying to build for your business? A public statement being passed around the Internet may be someone’s first introduction to your business. Remember, once you publicly post anything to the Internet, consider that it becomes a permanent posting. Someone may save a copy and bring it back to public attention in the future.

 

Going-Public-tell-communityTell the community exactly what they can do to be helpful.
Go back to your original goals as discussed in post #2 about Initial Copycat Communication. What do you want from the copycat? How can others in your community or the general public help you get what you want? If the copycat is a service provider to others in your community, such as a manufacturer with a private label, perhaps you can ask other designers to not use the manufacturer’s services in the future. If the copycat is a large brand, perhaps you are asking for social media sharing and public visibility.

Include your ideal resolution as well into the messaging. Let the copycat know it isn’t too late, and now there’s only shame to suffer through.  Possible resolutions include:

  • A licensing or royalty payment for the use of your designs.
  • A promise to stop creating that product in the future. 

If the copier does agree to a payment or to stop production, be prepared to make one final public statement, if requested by the copycat, letting the community know how the problem was resolved.

Rachel Fischbein

ASK Harriete asks: 

Are there any negative consequences to a public airing of the  copycat situation? (This is assuming that everything that the copy victim has written is professional in the public disclosure.)
 
Can the copy victim be sued for this public disclosure of the copycat situation?

Are there any other negative consequences that the copy victim should be prepared for?

I will try to find some answers.

Read the previous posts by Rachel Fischbein:

What-is-a-copy-copycat copyWhat Is A Copy? Copycat?

 

Initial-copycat-communicationInitial Copycat Communication

 

 


More information: 

Fashion-Law-primer-protecting-your-designsFashion Law Primer: Protecting Your Designs

 

 

Information about Fair Use:

Fair Use Guidelines

 

Fair Use - Is your work "transformative?"

 

Understanding Fair Use in Copyright Laws

 

Fair Use and Copyright Issues for Artists


 




The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use

The_good_wife_actressThe award winning show "The Good Wife" offered a lively banter discussing Copyright Infringement in the recent episode titled, "Goliath And David." Watch the show online.

I loved every minute of it and think the issues brought forward are relevant to many of the discussions circulating in the arts and crafts world regarding legal issues, copyright, and copycats. Six minutes into the story the first revelation arrives. And if you are confused about copyright, copies, derivative work, parody, and fair use....it is all explained in the story. Pay attention to how precise and specific the discussion needs to be in teasing out the legal issues.

They use music, more specifically a rap song, as the example....and... sure, this is just a fictional story, but the information was fascinating. The issues presented in the case become more relevant with the recent cases brought to court by Marvin Gaye estate suing for infringement against Robin Thicke song "Blurred Lines."  

Compulsory License, and Derivative Copyright were the first two issues brought forward in the story. Quoting the show, "The compulsory copyright allows you to cover the song, but the derivative rights protect you if you make changes in that song." This is specific to the music industry.

The next issue discussed is a legal agreement. Alicia Floric (the main character of the show) says, "Money has to change hands even if it is only five dollars." True.  A similar example in the Netflix series "Breaking Bad", a lawyer asks for a dollar from each prospective client (in the middle of nowhere, at night, in the windy desert) to enter into a contractual relationship with his new "clients" to establish lawyer/client confidentiality.

Continuing with The Good Wife copyright issues...
The Good Wide copycatWe then hear the voice of "excuses." Statements that are often used to justify copies. The character on the stand in court says, "I do know artists are sponges. We take in the same information from the zeitgeist, transmute it into something new. And sometimes there is a best way to do something. Uh, good artists will often duplicate each other because they hit on the best way at the same time."  I can't tell you how many times I've heard these kinds of comments. 

Testimony of the copycat continues...
The-Good-Wife-Similarity-Does-not-constitute-theft
"Similarity does not constitute theft." "Similarity is not a crime. That's how our culture develops and grows." 

 

Additional issues brought forward in the story include parody and fair use.* I love how the musician is lost in the legal arguments. "This is so cool.  It's like legal jazz."  The dialog is really funny. His scripted opinion echoes half the audience watching the show.

The story then moves onto the idea of transformation under Fair Use. "The judge wants the characters to prove that it was a "transformative artwork."

Two music experts are brought into the courtroom. Fascinating as their opinions diverge. Unfortunately the show confuses "satire" and "parody" using the words interchangeably, but ultimately the program does state, "Originality must be protected."

"A transformative artwork by its very definition must be transformative." 

I don't want to reveal the entire show.....you might have to watch the story a couple of times to absorb all the legalities. And the whole show has it's usual multiple threads of intrigue, sexual tension, and character development. All worth watching any night of the week!

The only thing that I will tell you is the copycat lost the case. Watch the show to find out how this is revealed.

Listen to this YouTube video to compare the two songs "Blurred Lines" from Robin Thicke and "Got to Give It Up" by Marvin Gaye.


Harriete

 

*The Supreme Court has unequivocally held that a parody may qualify as fair use under § 107. According to the Court, a parody is the “use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580. Like other forms of comment or criticism, parody can provide social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.” Id. In other words, parodies can be considered “transformative” works, as opposed to merely “superseding” works. Since transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright,” the more transformative the parody, the less will be the importance of other § 107 factors that may weigh
against a finding of fair use. Id. at 579.

RELATED POSTS:

Fair Use - Is your work "transformative."

Blurring the Lines Between Homage and Infringement from the California Lawyers for the Arts

 


Fair Use Guidelines

While some people may be fascinated by the nuances of Fair Use legalese, most of us just want an easy checklist that we can understand. 
FairUseGuidelines

Here are five simple Fair Use Guidelines for copyrighted work that help me focus on the issues. 

1) Transformative 
Your artwork should substantially transform any copyrighted work, i.e. not a copy.  The degree of transformation does matter - the less it looks like the original copyrighted work, the better.

2) No Confusion
Your artwork should not be easily confused with the copyrighted work.  Consumers especially should be able to instantly distinguish your artwork as something different from the commercial purpose of the copyrighted work.  

3) Commentary or Parody
Your artwork should make a comment or parody of the copyrighted work.   The commentary may be flattering or critical.

4) Non-commercial Intent
It's OK to sell your artwork, but the artwork should not have a commercial intent that would compete with the commercial purpose of the copyrighted work.     

5) No Sponsorship
Your artwork should make no suggestion that the copyright owner endorses or sponsors the artwork.  

Ideally, all of these Fair Use Guidelines should be applied to your artwork - but exceptions do occur.  Most of this is common sense.  Fair Use under copyright law not only permits but is intended to encourage a wide range of possibilities. Be creative!. 

Hopefully, for most people, these five guidelines will be a fast and easy reference.  If you want further insights, a series of posts on this blog provide examples and links to other reference material.  

Stanford University Libraries offers an excellent post on Measuring Fair Use: The Four Factors

If you have information that you would like to add to these Fair Use Guidelines, either comment here or email me.

A lecture given in March 2013 discusses common issues surrounding copyright in the crafts community "The GOOD, The BAD, and The UGLY in the AGE of the Internet."

 


Fair Use and Copyright Infringement - No Confusion

Artists who use copyrighted material in their artwork are often concerned about whether they have violated the copyright of the original source material. One of the key principles of Fair Use is avoiding consumer confusion between your artwork and the original copyrighted work.  Here are a few examples to illustrate the issue.

Infringement Examples
HPlexlogo-v2 In a recent case, J.K. Rowling won a copyright infringement law suit against RDR Books and Steve Vander Ark, the author of "The Harry Potter Lexicon" - a so called encyclopedia based on the Harry Potter series of books by J.K. Rowling.  The judge ruled that the encyclopedia was an infringement because "The Harry Potter Lexicon" could confuse the consumer.  The text did not contribute enough original content and was not sufficiently transformative -- it was an obvious derivative of the copyrighted work. This legal decision prevented the publication of the "encyclopedia" as a book in its original form -- but see the UPDATE below.  [Ark still maintains a website.]

Rogerspuppies1Koons_puppies In the 1992 case of Rogers v. Koons, the ceramicist, Jeff Koons created a sculpture titled, "String of Puppies" based on a black and white photo taken by Rogers titled, "Puppies." Koons openly admitted that he used the photo as the basis of his work.  The court ruled that the sculpture infringed on the copyrighted photo because it was an obvious copy and substantially similar. Koons contributed no original content or commentary to the photo. 

Fair Use Example
In the case of Kelly v. Arriba Soft, the court ruled that "thumbnails" or small images used by Internet search engines and other websites to help guide users to other content is Fair Use.  Kelly owned a professional photography website and objected to the thumbnails. In the court's decision the integrity and marketability of Kelly's images were not infringed upon because the thumbnails were transformative and would not confuse consumers seeking quality images. 

Do you have any questions about Fair Use in regard to your work? ASK Harriete.

Harriete

www.harriete-estel-berman.info

Lexicon UPDATE regarding The Harry Potter Lexicon

I received a very informative email from RDRBooks stating that they have in fact published a revised version of the Lexicon.  The judge in the case in his decision in 2008 also issued a "roadmap" on modifications that would allow the Lexicon to be published within the Fair Use doctrine.  In the revised version, Ark added about 600 original commentaries to the 2,300 entries.

Also noted was an article titled, “How Fair Use Prevailed in the Harry Potter Case,” available for free download from the Association of Research Libraries and the American Library Association.     

 



Fair Use - Is your work "transformative?"

3Mm.72jpg It is important for artists to understand the concept of Fair Use so that instead of being intimidated by copyright law, they are inspired by the use of found materials. The concept of Fair Use has a long history and is intended to advance and stimulate creativity.  When you use copyrighted material in your work, the finished product must be transformative.

 

3Mmback-72 Transformative means that the original use, purpose, or intent of the material has been changed significantly into something substantially different in both appearance and objective. In my work shown here (as an example), the sculpture titled, 3M & m Candy Dispenser, the original tin can packaging for 3M Scotch tape, electrical tape, Scotchgard, and Spray Mount have been re-purposed into a candy dispenser as a pun on the words 3M and m & m candies.

 

Boucheron Another example of transformative work is shown (below) from Emiko Oye.  On the left are two views of an original Boucheron Necklace designed for Maharajah of Patiela (circa 1928). 

 

 

 

EmikoBOUCHERONOn the right, Ms. Oye has recreated the design in LEGOs.  She has transformed the original design and made it in her own style.  In addition, the LEGOs themselves have been transformed beyond a children's toy into social commentary and a unique appearance.

Further examples of Fair Use under Copyright Law will be continued in the next posts including important points for jewelry artists to consider.


www.harriete-estel-berman.info

Many people have requested permission to share the content on ASK Harriete.
FOR PRINT: You have my permission to share a post for educational purposes in whole or in part as long as you include my name, Harriete Estel Berman,  ASK Harriete, the URL for that particular post along with the date of the post, and the date the post was printed. 

INTERNET: It is not acceptable to copy an entire post from ASK Harriete on your blog or website. This would  be duplicate content on the web. However, it is appropriate to write a review, comment, rebuttal or endorsement and link to the original posts. Same goes with Facebook or any social network.  LINK to the original post adding your own original comment or content.


Understanding Fair Use in Copyright Laws

Copyright Laws and the concept of Fair Use.

Many artists and makers who use found materials in their work are concerned about copyright infringement. Legitimate use of found materials is sanctioned under the concept of Fair Use within the large body of Copyright Laws.

There are several key provisions to protect artistic work under the umbrella of Fair Use.

Perhaps the most useful and easily understood principal of Fair Use is whether the artist's use will be confused with the original copyrighted brand name or product. 

Deliema of Desire Candy Box about the painful things we do to ourselves with food.from

For example,
I used tin cans from SLIM FAST products in a candy box titled, The Dilemma of Desire. There is little chance that this work would confuse the consumer or hurt the brand name SLIM FAST.  

Fundamentally, Fair Use allows and encourages "creativity for the enrichment of the general public," but does not permit use that would supersede the original purpose of the copyrighted materials. 

In legalese, the use must be interpreted as transformative, not merely derivative.  In plain English, the artist or maker must change or modify the original enough to create something clearly new and different.  

So what is enough difference?  Obviously, copying a book, e-book, tutorial instructions or artwork is not O.K..  Sometimes the fine line may be somewhat gray.  Jeff Koons lost his claim of Fair Use when he made a three dimensional sculpture based on another artist's photograph. In this case, he sent the original photograph to the manufacturer to construct the sculpture.  In essence, he made a near copy of the original.

So as long as your work transforms the original content or intent to create something new -- whether you add, subtract, modify, or distort -- you're probably OK.  Just don't copy someone else's work and call it yours.




Fair Use and Copyright Issues for Artists

Dear Harriete,

I was wondering what you think about copyright issues regarding the printed images on metal that you use?
I am concerned about copyright infringement when so much of my work is collage. 7extinctioncover.JudyHoffman For  example, when I submitted my dinosaur book titled "7 Extinction Events" to 500 Handmade Books by Lark Books, it was a concern whether I could comply with their requirement that we own the rights to everything in our books. 

Concerned Collage Artist,

Judy Hoffman

500HANDMADEbooks  Judy,

I have no problem using the recycled tin can materials and subsequently the images on the material in my work. As an artist I think that my work alters the images on the recycled materials sufficiently, not just in appearance but because of the reasons that I use this material and the concepts in the work. Spicebook_full2_600 The reason that I use the materials are multiple, but include the premise of using recycled materials, and a commentary about our consumer society. This is in addition to the content within the specific piece. To the right above, you can see my book "Let There Be Light" included in 500 Handmade Books.

There are many examples of artists working with found materials dating back to Dada in the early 20th century all the way to the present. The primary issue that protects artists from copyright infringement is the concept of Fair Use within Copyright laws.

Below is a description about copyright and fair use.

Copyright law covers trademarks, trade names, personal names, publicity, rights and images of people even after they are dead. Copyright and trademark issues are often discussed together.

 

 

Fair Use Issues for artists related to Copyright   are described below:

  • Fair Use is a limiting concept.
  • Fair Use is used in defense of copyright infringement so the artist/defendant must be able to prove that the use of copyrighted material was designed to be a criticism or commentary. 
  • Fair Use must be a parody not a satire.
  • Fair Use in the artwork must be trans-formative. 
  • In considering the concept of Fair Use of copyrighted materials in your artwork, the famous brand name or trademark, for example, should not suffer damage from the artist’s commentary or Fair Use.
  • In addition, the Fair Use of copyrighted materials should NOT create consumer confusion with the original product, or brand name.
  • Fair Use is not a popularity contest.
  • The Burden of proving Fair Use is on the Defendant.FreeinternetWeb

 
Criteria of Fair Use (in approximate order of relevance)

  • Artwork should be a parody not satire.
  • When you look at the artwork is there a simultaneous (immediate) recognition of parody?
  • Is the artwork intended for a non-commercial purpose as a social commentary?
  • Does the artwork dilute or tarnish a famous brand?
  • There can be no suggestion of sponsorship from the famous brand or company.
  • There can be no potential for confusion with the existing trademark or brand name product.
  • It is important for the artist to make work that avoids consumer confusion.
  • The commentary under fair use must serve a different purpose than the original trademark or copyright images.
  • The commentary (made by the artist) can not take dollars away from the parent copyright or trademark.
  • The commentary can not confuse the consumer.
Fair Use is easier to prove if the artwork is transformative.
WARNING: Artists should NOT borrow or download images from the Internet.

Now, back to Judy's work. 7extinction

Judy, there is no doubt in my mind that the use of your collage materials sufficiently transforms the original materials into a Judy Hoffman statement. Obviously, this one-of-a-kind book is intended for non-commercial purpose as a social commentary.  None of your college materials dilutes or tarnishes a brand name, nor is there any recognition or inference that there is a sponsorship from any brand. This avoids all possibly consumer confusion. The purpose of your book is definitely different than the intended purpose of the original found materials.

Look for a future blog about Parody v.s.Satire for more information related to this topic.
Sincerely,

Harriete
www.harriete-estel-berman.info