Intellectual Property
Ethics, technology, culture, and U.S. Copyright Law, combine to provide us with a timely opportunity to explore the techniques and broader implications of intellectual property, which includes trademarks, trade secrets, patents, and copyright. As defined in The Copyright Act of 1976, intellectual property encompasses literary, dramatic, and musical works; pictorial, graphic and sculptural works; audio/visual works; sound recordings and architectural works (“Copyright Act,” §107, 1976).
Our academic, scholarly, creative, and technical work across disciplines — at the university, in professional life, and in our communities, in everyday life — is increasingly linked to intellectual property concerns, and we will develop a learning unit together to explore the challenges and opportunities in copyright and fair use contexts that you can use in this course and in your other work.
The issues that arise in these discussions will undoubtedly appear again in your experiences downloading digital materials online, copying course materials, sharing music, and when incorporating sources into your own work.
Adapted and summarized from Copyright & Fair Use in Documentary Film, Center for Social Media, American University:
Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. It is a crucial feature of copyright law and what keeps copyright from being censorship. You can invoke fair use when the value to the public of what you are saying outweighs the cost to the private owner of the copyright.
In your own writing and design, you may find the need to use copyrighted material: written work, music, photographs, movie clips, or other expressions. For many of your uses, you need to locate the copyright holder, request permission, and often arrange payment. If the copyright holder has provided a Creative Commons license, it will be very easy for you to see the terms that author or artist has attached to any use of his or her work. Most copyrighted work, however, does not have a Creative Commons license.
As a copyright holder yourself, you understand the importance of copyright ownership.
For some uses, however, neither you nor anyone else needs to license copyrighted material. This is because copyright law exists to encourage and support creativity; copyright law recognizes that creativity doesn’t arise in a vacuum. New works of art—such as films, books, poems, or paintings—all make use of what has gone before. Thus, copyright law not only protects authors with a copyright that lets them decide who can use their works, but also offers exemptions from the author’s control. For writers, the most important exemption is the doctrine of fair use.
You can rely on fair use, where appropriate, in the research, writing, and design that projects you undertake for this course.
With your fair use privilege comes the responsibility of educating yourself about copyright law and the factors that allow you to freely use portions of copyrighted materials for purposes of commentary, criticism, scholarship, parody, creating new information–“transformative” uses–new aesthetics, new insights, and new understandings.
If you are making a documentary film, for example, consult the influential Documentary Filmmakers Statement of Best Practices in Fair Use, which was created by a group of national filmmaker organizations, has been endorsed by the University Film and Video Association, and is now relied on by film festivals, insurers, cablecasters, distributors and public broadcasters. Fair use also applies in the fiction-film environment, but not necessarily to the same extent or in the same way.
As always, the central question is whether the new use is “transformative” — i.e., whether it adds significant value by modifying or recontextualizing the original.
For more understanding, including information on when you can use works for free, without even using fair use, why you (mostly) don’t need to worry about trademarks, what is in the public domain, how fair use lawsuits have been settled, and on how fair use has been employed successfully in documentary film, visit centerforsocialmedia.org/fairuse, where you will also find more works you can use in class discussion.
Background and context materials
Copyright Law of the U.S.: Title 17 of the United States Code
[PDF and HTML versions]
§ 101. Definitions
§ 102. Subject matter of copyright
§ 107. Limitations on exclusive rights: Fair Use
Copyright and Fair Use Overview > Fair Use
Stanford University Library
Fair Use Project
Center for Internet and Society, Stanford Law School
Landes, William M. and Richard Posner. The Economic Structure of Intellectual Property Law. Belknap Press, 2003.
McLeod, Kembrew with T. Striphas. “The Politics of Intellectual Properties.” Cultural Studies, 20(2006): 119-144.
Olumfunmilayo B. Arewa, “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context.” North Carolina Law Review. 547 (2006).
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). US Supreme Court.
Michigan Technological University: Academic Integrity Policy.
Michigan Technological University: Computer Use Policy.
For excellent context and materials, “Fair Use and Online Video,” from the Center for Social Media, American University.
Even though these examples focus on digital video and remix culture, you will find many productive connections to digital music sampling.