The Gray Zone Framed By Black & White
May 06, 2013
The discussion in response to my lecture, "The GOOD, The BAD, and The UGLY in the AGE of the Internet" has ranged all over the map. Most of the debate has touched on copyright and questions about ethical and legal sharing of intellectual property.
I would like to reiterate that Copyright Law tries to clarify ethical and legal sharing to encourage creativity. Proper sharing expands our communication and enlightens our community. In contrast, unethical and illegal sharing dilutes and diminishes the value of our collective efforts.
The lively debate and comments about "sharing" reminded me that the concept of Fair Use under copyright law has already addressed many of the issues under debate.
Fair Use almost always involves a similar or derivative work that copies elements of the original work. An understanding of Fair Use can help clarify some situations that may appear to be gray areas - and instead frame them more clearly as black and white.
A few years ago I wrote a post about Fair Use Guidelines which concisely itemizes five key factors regarding Fair Use of copyrighted materials.
To claim Fair Use in making a derivative work (or before posting, sharing or selling a derivative work), ASK these questions:
Is the new version transformative?
If the derivative work borrows ideas or content from another person's work, book, or instructional materials, is it transformative? The new version must look less like the original source and more like a NEW IDEA or NEW WORK.
Could the new version be confused with the original source?
There should be no confusion between the original version and the new version. Consumers especially should be able to instantly distinguish your artwork/tutorial as something different from the original copyrighted work. Comparing both versions, if there is any possibility that consumers would be confused about who is the originator and who is the copycat....this is a copyright violation.
Are you selling the idea, art, craft or information?
Commercial intent or financial compensation are significant, often deciding factors in determining Fair Use. Copying an idea or information for your own personal use is permissible under the definition of Fair Use. However, selling the derivative work or idea, or receiving financial benefit, violates the principles of Fair Use. Even if you are distributing the copied work for FREE, but claiming or implying that it is yours, also violates Fair Use.
Is there an implied sponsorship or endorsement?
"Your artwork should make no suggestion that the copyright owner endorses or sponsors the artwork/ information." An example: "_______( famous artist)_____ is my hero, I ’m sure that he won't mind if I copy this idea and share it with you" is an implied endorsement. This is NOT acceptable under Fair Use. Before posting information or content, it is best to ask permission, and then cite your source clearly as in "This information was provided with permission from __________."
Ideally, Fair Use Guidelines can be applied to art/craft and writing (including sharing of information or instructions). Most Fair Use is simply common sense. Fair Use not only permits sharing but is intended to encourage a wide range of possibilities. In other words, Be ethical AND Be creative!
If you want further insights into copyright issues here are links to posts on ASK Harriete about copyright.
Fair Use - Is your work "transformative."
Pandora's Box or Toolbox - COPYRIGHT of Photographic Images