Cat Flag’s Guide to Legal Copyright Exceptions: Fair Use, Public Domain, and Creative Commons

The world-famous Copyright logo, image from the Wikimedia Commons

Copyright issues are in the news again, this time because of the biggest go-to site for internet videos: YouTube. Last month, YouTube rolled out a new feature that is meant to protect the copyrights of content creators. Called the “Content ID” system, it is a computer program that analyzes videos uploaded to the site, looking for videos, images, or music that have been pirated. In this way, they hope to tackle those who steal other people’s creative works without the complicated and expensive process of copyright lawsuits. Sounds perfectly reasonable, right?

Well, it turns out the program is a bit overzealous. Or, rather, a LOT overzealous. People with explicit permission to use clips or content have had their videos flagged. The worst-hit are video game reviewers and makers of hugely-popular “Let’s Play” videos, who have some of the largest audiences on the site. But plenty of other YouTubers have been hit by copyright claims, for doing so much as singing a few lines of a song in their video. Making matters worse, some of the claims are not made by the actual copyright owners… there have been reports of fraudulent copyright claims by people abusing the system, as well as claims made by the computer program with no human input whatsoever. In one extreme case, the creator of a video game had a copyright claim against a video he made demonstrating his own game. While this is an ongoing story that will probably see new developments in the future, it is a reminder of just how important, and how complex, copyright has become in the digital age.

Luckily, my YouTube videos have not yet been affected by the new Content ID system (*knocks wood*). But since this is an issue that is being talked about right now, I feel it is an appropriate time to talk about copyright more generally, and talk about the many things I have learned over the years about when it is acceptable and unacceptable to use parts of someone else’s work as a part of your own.

Why do we have copyright, anyway?

IP Venn Diagram image from BusinessSarah

The idea of something being “intellectual property” is a very recent phenomenon. Copyright only became a thing that exists in 1710, when the British Parliament adopted the Statute of Anne. Here in the United States, the Constitution explicitly gives the federal government the power to write laws protecting intellectual property, and so the principle of copyrighting media was introduced via the Copyright Act of 1790.

Why did governments around the world start to do this? Before things like copyrights, patents, and trademarks existed, if somebody came up with an idea for a book, invention, artwork, or business name, somebody else could simply come in, copy their work, and make money off of it. The original person with the idea would have all of the expenses of writing that book or building that machine, but the copycat would not. This would give the copycat an unfair advantage, as he could start turning a profit much sooner. This discouraged people from coming up with new ideas, as they feared getting taken advantage of and losing all of their hard work.

Copyrights, patents, and trademarks aimed to fix this problem by giving people a period of exclusivity over their idea. If a writer’s book is copyrighted, and someone publishes that book without the author’s consent, he or she can sue that publisher and collect damages. In this way, people gained a financial incentive to create things, and I don’t think it’s a coincidence that we have seen a flood of new inventions and works of art since these laws were first passed.

Originally, copyright in the United States only lasted 14 years, with the possibility of renewal for another 14 years. After that, the work in question entered what is known as the “public domain”, and anyone could copy or use it. Over the years, however, copyright has been extended over and over again, as creators wanted more and more control over the things they had made. Currently, U.S. law states that if you were to, say, make a video, you would own the copyright to that video for the rest of your life, plus an additional 70 years (meaning in practice that your family would own it after you die). Meanwhile, if a big corporation like The Walt Disney Company makes a movie, then the company owns the copyright for that movie for between 95 and 120 years, depending on when the movie is released.

I chose Disney as my corporate example for a good reason, by the way. The law extending copyright to its current limits, the Copyright Extension Act of 1998, was passed in large part due to Disney’s lobbying in Congress, earning the law the nickname “Mickey Mouse Protection Act” by the law’s critics.

When people talk about so-called “pirated” songs, movies, TV shows, video games, and so on, they are really talking about violating someone’s copyright by distributing copies of the work in question without permission. Technology these days makes pirating extremely easy, which is why enforcement has been so important in recent years. If you don’t want to get in trouble with the law, buy your music, video games, and movies legally, and get permission before you try to make your own material using someone else’s work. Unless, of course, what you are doing is protected by fair use.

Fair Use: The Exception to the Copyright Rule

Cat Flag loves Fair Use!

Cat Flag loves Fair Use!

Ever since copyright was created, courts have consistently ruled that it is NOT a blanket ban on any use of copyrighted material. The “Fair Use Doctrine” has long been a staple of copyright law, and is codified in the laws of the United States.

Now, each country’s copyright laws are different, but here in the United States there are four factors courts use to decide if something counts as a “fair use” or not. I’m quoting the law directly here:

  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.”

Decades of court decisions have made it clear that a critical review or commentary on an artwork, book, song, film, video game, and so forth would (in most cases) be an acceptable fair use of copyrighted material. After all, if somebody could use their copyright to deny permission to critics that give them bad reviews, it would hurt consumers. Parodies have also long been considered fair use, because they are also a form of criticism.

Meanwhile, Cat Flag is a nonprofit blog – I do not make a single penny off of this website. I know some of you see ads in the bottom of your screen sometimes, but those are put there by WordPress, the service I use to make this blog, in order to pay for their servers. I make Cat Flag because I enjoy it, and I hope you all find it a useful educational resource. Sometimes I use images in my blog that I have downloaded off of the Internet in order to illustrate my points. I always credit the source of the image – click on any image on any of my blogs, and you will see the source in the web address. I feel that this meets the fair use criteria, and so far I have never had any legal problems. (*knocks wood again*)

Let’s say you don’t even want to risk an argument over fair use, though. There are still plenty of options available to you to draw from in creating your own work, thanks to the public domain.

Public Domain: Free for Everyone, Forever

Nixon meets Mao image from the National Archives

That image you see with former President Richard Nixon and Chairman Mao is in the public domain. That means there is no copyright on it. Go ahead, download it. Share it with all your friends. Put it in your own blog or video or collage. It’s all perfectly legal.

I depended on public domain images and video clips for my most recent documentary, AUDREY: Our Matriarch. I didn’t want the video to be just 32 minutes of someone sitting and talking, and I also wanted to illustrate some of the things my grandmother was saying with some contextual footage.

Public domain just means that anyone can use whatever-it-is however they like. It’s a resource available for free, for everyone, forever. How does something wind up in the public domain, though? Well, there are four main ways that this happens.

First of all, anything the United States federal government makes is automatically in the public domain. If a U.S. federal government employee took a picture or made a video as a part of his or her official duties, that picture or video is available to the public to use.

Like this image of President Obama's inauguration, taken by White House photographer Pete Souza

Like this image of President Obama’s inauguration, taken by White House photographer Pete Souza

The most common way something winds up in the public domain is simply that its copyright has expired. This will vary from country to country, but here in the United States, pretty much anything made before 1923 is in the public domain. This means fairy tales, ancient mythology, a huge body of classic literature and art, very old photographs, and the sheet music and lyrics for songs written before that year are all available.

This photo was taken in 1862. No copyright to be found here.

This photo was taken in 1862. No copyright to be found here.

Not everything in the public domain is necessarily that old, though. Copyright laws have changed many times over the years, and sometimes works sort of “fall into” the public domain because of a loophole. For example, U.S. copyright law today gives you copyright automatically for any idea you have as soon as you have it, so nobody can steal your unfinished draft novel and publish it as their own. Prior to 1979, however, the law was different. Back then, you actually had to register your copyright, or at least include some sort of copyright notice, hence the little (c) mark.

Sometimes, people would goof and not copyright their work correctly, or they would copyright something but decide not to renew their copyright when the time was up. Sometimes, a company that created movies, cartoons, or comic books would go out of business, and nobody would buy the rights to their creations. In all of those cases, the work would land in the public domain. You’d be surprised by what qualifies as public domain due to these loopholes.

Then again, these loopholes also created some very strange situations:

  • The movie It’s A Wonderful Life is in the public domain, but its script and soundtrack, as well as the original story it was based on, are all still copyrighted. In effect, this means you could use images from the film but not the audio.
  • The Superman cartoons from the 1940s are in the public domain, but the characters of Superman/Clark Kent, Lois Lane, Lex Luthor, and so on are still owned by Warner Bros. This means that you can’t make your own Superman-themed merchandise or movies on the excuse of basing them on the cartoons.
  • In one particularly strange case, several promotional stills that were distributed to newspapers to drum up excitement for the 1960s Adam West Batman TV show were never copyrighted (The show itself is copyrighted, of course).
Not pictured: Copyright.

Not pictured: Copyright.

The fourth and final way things end up in the public domain is if the creator of the work in question voluntarily releases it into the public domain and gives up all copyright to his or her work. It is excruciatingly rare for someone to do that, but it does happen. Last year, a group of six artists, musicians, and video game makers created a collection of art, music, and source codes that they dubbed “The Open Bundle”. They held a fundraiser with the promise that if they met their goals, they would release the Bundle into the public domain. Well, they met their goals, and now you can download and use the materials in their bundle here.

A quick word of caution, though: while you can freely share and use anything in the public domain, other people’s works based on that public domain work are still subject to copyright. For example, Thor is in the public domain because he is a character in ancient Norse mythology. But this Thor…

Thor The Dark World image from Fansided

…is copyrighted by Marvel, because he is a character in their movies.

But what if you want people to be able to share your work without giving up all of your copyright rights? It turns out, there is an app for that, too.

Creative Commons: Deciding Who Can Use Your Work and How

Creative Commons symbols from Techntuit

The idea behind Creative Commons is simple. Instead of making a copyright holder have to specifically authorize each and every use of his or her work, he or she can choose to issue a blanket license that covers most typical situations where someone might want to use or share his or her work. Creative Commons was founded in 2001 with this idea in mind.

Creative Commons licences have proliferated all over the Internet. Google, Flickr, Wikipedia, and even Al-Jazeera make frequent use of Creative Commons. As of this writing, there are six different Creative Commons licenses to choose from, each of which works like a legal contract on whoever you share your work with. Each license offers different levels of restriction based on how you want your work to be used.

I actually make use of Creative Commons licenses myself. Some of the videos on my YouTube page have a Creative Commons Attribution licence, the most permissive of the options available, which means that you can reuse, remix, or take clips from these videos as long as you give me credit as the video’s creator. I don’t do this for all of my videos, mind you, just the ones that I want to share with the world in this way.

Creative Commons is useful for people who want to incorporate images or music or video clips into their work, but the public domain resources they have available to them won’t cut it and they don’t want the hassle of getting permissions or worrying about fair use. As long as you are careful to meet the requirements of the license, you can use Creative Commons material.

Here are some useful resources I have found for Public Domain or Creative Commons materials

Prelinger Archives – I love this website. It has hundreds of Public Domain videos available for download in multiple formats, making it easy to find the right clip for your needs. – Need free or cheap stock photos? This website has a huge library to choose from. Many of the pictures were released into the public domain by the creator, while the rights to others can be bought for a royalty of just $1.

The CIA World Factbook – Need an image of a particular country? The CIA World Factbook is an almanac of sorts providing key facts about the various countries of the world, like their size, population, economic indicators, and so on. Each article on a country also has photos donated from U.S. government agencies and private citizens, all of which are in the public domain. – NASA is a U.S. government agency, and so its library of space photos and audio clips is all in the public domain. Photo and Image Links – A quick resource that links to the photo galleries of various government agencies, most of which are in the public domain.

Incompetech – Meet Kevin MacLeod, creator of a huge gallery of music that all are under a Creative Commons Attribution license, so you can use his music as long as you credit him as the creator. I used his music in my first documentary, Homeless In Paradise.

Wikimedia Commons – A huge online archive of images and other media, all of which are accompanied by a convenient explanation of the media’s copyright status: public domain, Creative Commons, or copyrighted. It makes searching for a particular image incredibly convenient.

I hope all of you had a Happy New Year! Here’s to 2014!