FAIR USE AND QUOTING FROM COPYRIGHTED SOURCES

WHAT IS FAIR USE

• Notwithstanding the provisions of sections 106 and 106A,

the fair use of a copyrighted work, including such use by

reproduction in copies or phonorecords or by any other

means specified by that section, for purpose such as

criticism, comment, news reporting, teaching (including

multiple copies for classroom use), scholarship, or

research, is not an infringement of copyright. (Title 17

Section 107)

• (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. (Title 17 Section 107)

WAYS OF QUOTING COPYRIGHTED WORKS

CITATION FORMATS

• APA (American Psychological Assoc.)

• AMA (American Medical Assoc.)

• MLA (Modern Language Association)

• Uniform

• Chicago/Turabian: Author-Date

• Harvard

CITATIONS & REFERENCES IN ACADEMIC PAPERS• Organize potential references during the writing. (Prior

publications that help you define your topic or contain details of

methods you applied or support your results) (Annesley, 2011)

• References in your paper should be accurate and add to its value.

(Annesley, 2011)

• Make sure every citation has a reference and every reference

has been cited appropriately before submission. (Annesley, 2011)

SHEPARD FAIREY

http://orig09.deviantart.net/5229/f/2009/036/3/c/shepard_fairey_by_zombieaters.jpg

Shepard FaireyStreet Artist & Graphic Designer

• Born: February 15, 1970

• Education: Rhode Island School of Design

• Internationally recognized artist with work in The Smithsonian, Museum of Modern Art and the National Portrait Gallery.

https://designerspotlight.files.wordpress.com/2014/09/shepard_3.jpg http://bomit.com/stickerblog/wp-content/uploads/2011/03/4.jpg

• Came to prominence with the Andre The Giant Has A Posse sticker campaign.

• Fairey began this campaign as a experiment in phenomenology (Fairey, 1990).

• In 1993, Titan Sports Inc. (now World Wrestling Entertainment, Inc.) threatened a lawsuit against Fairey. Titan Sports owned the copyright to the Andre The Giant character (Vallen, 2007).

https://cellbcondominiums.files.wordpress.com/2015/02/obey-logo.png?w=194&h=300http://www.andysowards.com/blog/assets/obey-giant-graffiti-sticker.jpg

• Fairey responded by significantly altering the Andre the Giant image and adding the title “Obey” to the poster.

• Fairey based this campaign on the John Carpenter film “They Live.”

• This campaign became the basis for Fairey’s company and career (Vallen, 2007).

http://www.art-for-a-change.com/Obey/obey_iww.jpg

http://libertyalliance.com/wp-content/uploads/2013/06/laborunion.jpg

• One Big Union, artwork created for the Industrial Workers of the World labor union in 1917.

• Original image created by Ralph “Bingo” Chaplin.

• Image altered by Fairey for his Obey Clothing line.

• Chaplin was not credited for his original work.

• Fairey then had this altered imaged copy written (Vallen, 2007).

http://www.art-for-a-change.com/Obey/obey_rupert_garcia.gif

https://digcopright.files.wordpress.com/2008/12/picture-10.png

• Poster created by Rupert Garcia for the African American Civil Rights Movement in 1969, juxtaposed by Fairey’s altered image (Vallen, 2007).

• Photograph by Pirkle Jones taken for the Black Panther Party in 1968, juxtaposed with Fairey’s altered image (Vallen, 2007).

http://www.art-for-a-change.com/Obey/mederos_che.gif

• Poster created by Rene Mederos depicting Cuban revolutionaries Che Guevara and Camilo Cienfuegos in 1972 (Vallen, 2007).

Statement sent to Fairey and the Bombing Science Outlet by artist Lincoln Cushing:

"Please be advised that the 'Cuban Rider' t-shirt you have listed for sale is a direct copy of a poster by Cuban artist Rene Mederos, and is an unauthorized violation of his work. I work closely with the Mederos estate and have represented them in several arrangements for use of his work. Given that your item is violating the intellectual property rights of another artist, you can do one of two things - either negotiate with Rene Mederos' estate for a fair royalty (assuming that they will grant it) or you can immediately stop production of this item and remove advertising from the public. Please let me know how you wish to proceed."

http://www.art-for-a-change.com/Obey/obey_moderos.gif

Altered image by Fairey:

• Design was pulled from the website.

• All royalties were sent to the Mederos estate.

• Fairey never publicly apologized or admitted to stealing the artwork for his purposes (Vallen, 2007).

Image Courtesy Esquire Magazine : http://esq.h-cdn.co/assets/15/22/1432843145-obama-hope-poster1.jpg

Obama Hope Poster by Shepard Fairey:

• Created in 2008 independently by Fairey but later endorsed by the Obama Election Campaign

• Distributed both digitally and through physical mediums (posters, buttons, etc.)

• Acquired by the Smithsonian Institute in 2009 (bbc.co.uk, 2009).

http://www.wired.com/images_blogs/threatlevel/2009/10/picture-32.png

• The Associated Press brought a civil suit against Fairey which was settled out of court.

• Criminal charges were brought against Fairey for the creation of false documents and destruction of evidence during the civil trial.

• Fairey was ultimately sentenced to two year probation, a $25,000 fine and 300 hours of community service . (thesmokinggun.com, 2012).

http://blog.livebooks.com/wpcontent/uploads/2009/02/mannie_garcia_obama.jpg

Suggested "best practices" for using the graphic artwork of others :

• Admit that you are using preexisting art.

• Anticipate the exposure of the piece.

• Do your research.

• Ask for permission.

• Give specific credit on the final piece (Cushing, 2007).

Writers (or their estates) often charge very high fees for inclusion in works like

anthologiesFor one anthology, the WH Auden estate charged approximately $20/line of poetry

Sylvia Plath’s estate wanted $3500 for 4 poems, so her poems were cut from the final

product

Kevin Dettmar argues that the estates are influencing the canon (in potentially negative

ways for the writers they represent)Source: Dettmar, 2006

W.H. Auden by Carl Van Vechten. Public domain photo.

JD Salinger sets precedent

Photo by Ryan McGuire. Gratisography.com. Used under CC0.

In 1987, Salinger sued over an unauthorized biography that quoted from unpublished letters (Coughlin, 1989).

The letter recipients had donated the letters to universities, which is how the biographer had access to them (Marks, 1997). The federal appeals court “seriously limited the ability of researchers to quote from unpublished documents in their work” (Coughlin, 1989, p. 2). Judges decided that because letters are unpublished they have “virtually unlimited copyright protection” (Coughlin, 1989, p. 2).

Copyright is often used for privacy rather than economic reasons

• Valerie Eliot, wife of T.S., “has withheld the balance of his letters…for almost two decades” and has resisted any biographies being written (Max, 2006, p. 36).

• Marianne Moore’s niece “demanded that a biographer remove all quotations from the poet’s unpublished letters” (Max, 2006, p. 36).

The James Joyce estate, managed by Joyce’s grandson Stephen fiercely protects Joyce’s

intellectual property.

Public domain image

“If you want to write about James Joyce and plan to quote more than a few short passages, you need Stephen’s consent” (Max, 2006, p.35).

Examples of Stephen Joyce’s management of Joyce’s works

• Stephen Joyce wouldn’t allow a composer to use 18 words from the 600+ page Finnegans Wake because he “did not like the composer’s music,” causing the composer to lose his commission fee (Spoo, 2012, p. 89).

• An Irish anthology wanted to include an excerpt from Ulysses, but the estate wanted over £7000. Publishers included the excerpt anyway so Stephen sued them; they ended up publishing blank pages saying that the text was missing due to a copyright dispute (Spoo, 2012, p. 93-4).

• “Rejects nearly every request to quote from unpublished letters” (Max, 2006, p. 35).

• One academic worked on a multimedia Ulysses over 7 years; Stephen refused to allow the project to go forward; wanted $1.5 million in fees (Max, 2006, p. 36).

• Stephen said: “’You should consider a new career as a garbage collector in New York City, because you’ll never quote a Joyce text again’” (Max, 2006, p.36).

Photo by Andrew Pons used under CC0

Debate over whether Ulysses was already in public domain in US

According to Robert Spoo, copyright law at the time Ulysses was published in France (1922) required that Joyce send a copy to the US copyright office within 2 months, and then publish the book in the US within 4 months. Due to charges of obscenity, the book was not published in the US until 1933. Joyce “testified in 1926…in Paris that he had never tried to secure American copyright” (Dettmar, 2006, p. 2).

Source: Dettmar, 2006

James Joyce [Public domain], via Wikimedia Commons

• In the late 80s Stephen Joyce claimed he destroyed the letters his aunt wrote him, as well as correspondence to his aunt from Samuel Beckett. Said that he had not “yet” destroyed any letters or papers James Joyce had written. Source: Max, 2006, p. 34

Carol Loeb Shloss, a Stanford professor, wrote a book about James Joyce’s daughter Lucia. Stephen threatened litigation over letters included in the book, so she removed them from the publication. Feeling that many of her arguments were blunted due to the removal, she sued the Joyce estate. Lawrence Lessig was one of the lawyers who represented her.

Source: Max, 2006

• Shloss used a new defense: “Copyright misuse”

• Stephen Joyce’s threatening letters helped her case

• Shloss won the ability to use the material as well as $240,000 in lawyer fees, $10,000 of which went to a fund for her scholarship

Source: Spoo, 2012

• In 2012, all of the works Joyce published in his lifetime entered the public domain in Europe. (Not included: posthumous publications, anything unpublished) (O’Connell, 2012).

• In the US, Dubliners & A Portrait of the Artist as a Young Man are out of copyright (O’Connell, 2012).

Video production company The Glossary took the audio from David Foster Wallace’s 2005 Kenyon

commencement address and made a video https://vimeo.com/68855377

Photo by Ryan McGuire. Gratisography.com. Used under CC0.

Source: http://www.adweek.com/adfreak/story-behind-water-inspiring-video-people-cant-stop-watching-149324 (5/9/13)

Photo by Ryan McGuire gratisography.com. Used under CC0

Adweek asked The Glossary about how they got permission. They replied, “Sometimes it’s better to ask for forgiveness than permission.”

Source: http://www.adweek.com/adfreak/story-behind-water-inspiring-video-people-cant-stop-watching-149324 (5/9/13)

The David Foster Wallace Estate asked them to remove the video.

Source: http://www.adweek.com/adfreak/story-behind-water-inspiring-video-people-cant-stop-watching-149324

(5/9/13)

Best Practicesfor Quoting from

Works

• Ask permission• Know the estate’s temperament• Do the 4 part Fair Use Test• Be careful in regards to unpublished letters/works• Know your rights

Photo by Ryan McGuire. Gratisography.com. Used under CC0

FUTURE OF FAIR USE

NEW HORIZONS FOR FAIR USE

• Fair use might become more broadly applicable in later years of a work’s copyright term. (Samuelson, 2015)

• Courts might characterize the fair use doctrine as creating “user rights”, not just providing a defense to claims of infringement. (Samuelson, 2015)

• Fair use law might be made acceptable (again) to speak of First Amendment interests and values in fair use cases involving critical commentary. (Samuelson, 2015)

• Future fair use cases might take into account fair use best practices guidelines that have been developed by certain communities of practice, even when the guidelines were not negotiated among all interested stakeholders. (Samuelson, 2015)

CONCLUSION

• Uncertain future.

• Evolve continually.

• Keep approaching the proper balance between copyright

owners and the public interest. (Samuelson, 2015)

• Legislative reformulation and private industry-wide

agreements between users and owners are necessary.

(Leaffer, 2001)