Defining Infringement and Fair Use Infringement and Fair Use

Copyrights, Contracts, & Guidelines for Dinosaur Artists & Paleontologists

Part 1 Copyrights

Defining
Infringement
and Fair Use Paleontology is a technical field which involves sharing information and building on what has gone before, but which has extraordinary public appeal, and there is a distressingly large number of people out there who think that copying pictures of dinosaurs for their products “isn’t like copying ART, or anything!“ These factors tend to give rise to issues of copyright infringement. Those of us in the field may be discerning enough in our observations to detect derivation in a work, but there remains only one basic definition of infringement: can an ordinary person viewing the original work and the alleged copy tell that copying has taken place? That’s it. Furthermore, infringement is a quality rather than a quantity judgement. An infringer cannot defend himself by pointing out how much of a work he didn’t steal.
But not all use of an author’s or artist’s work without permission is considered infringement. Section 107 of the Copyright Act contains a list of purposes for which the use of a copyrighted work is considered “fair”. These are things such as news reporting, teaching, criticism, scholarship and research. Four things need to be considered in judging whether a use is fair:

the purpose of the use and whether the use is for commercial or nonprofit educational purposes

the nature of the copyrighted work

the amount of the whole copyrighted piece which has been used

the effect of the use on the potential market or value of the copy-righted work

The “fair use” doctrine has been developed primarily through a number of court decisions over the years. I will quote from the 1961 Report of the Register of Copyrights on the General Revision of U.S. Copyright Law which cites examples that courts have decided are fair use because some of these examples address issues which artists have specifically asked about:

“quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported.”

This last use has some implications for artists whose work is large-scale and likely to be shown without credit during the course of filming at a museum, but I would not say all such filming can be considered “fair use” and artists should get the opinion of a legal professional.

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		Part 1 Copyrights

Defining Infringement and Fair Use		Paleontology is a technical field which involves sharing information and building on what has gone before, but which has extraordinary public appeal, and there is a distressingly large number of people out there who think that copying pictures of dinosaurs for their products “isn’t like copying ART, or anything!“ These factors tend to give rise to issues of copyright infringement. Those of us in the field may be discerning enough in our observations to detect derivation in a work, but there remains only one basic definition of infringement: can an ordinary person viewing the original work and the alleged copy tell that copying has taken place? That’s it. Furthermore, infringement is a quality rather than a quantity judgement. An infringer cannot defend himself by pointing out how much of a work he didn’t steal. But not all use of an author’s or artist’s work without permission is considered infringement. Section 107 of the Copyright Act contains a list of purposes for which the use of a copyrighted work is considered “fair”. These are things such as news reporting, teaching, criticism, scholarship and research. Four things need to be considered in judging whether a use is fair: the purpose of the use and whether the use is for commercial or nonprofit educational purposes the nature of the copyrighted work the amount of the whole copyrighted piece which has been used the effect of the use on the potential market or value of the copy-righted work The “fair use” doctrine has been developed primarily through a number of court decisions over the years. I will quote from the 1961 Report of the Register of Copyrights on the General Revision of U.S. Copyright Law which cites examples that courts have decided are fair use because some of these examples address issues which artists have specifically asked about: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported.” This last use has some implications for artists whose work is large-scale and likely to be shown without credit during the course of filming at a museum, but I would not say all such filming can be considered “fair use” and artists should get the opinion of a legal professional.

		<< Previous \| Top of Page \| Contents \| W&K Publications \| Next >>