Copyright and Digital Media

Author: Bill Fischer

professor of Digital Media, Kendall College of Art and Design of Ferris State University.

Image: Kendall Digital Media student: Nate Hearn (3D model simulation of a product concept)

 Copyright  

The ease of digital image capture has tested copyright law like no time before. It's the wild, wild west out there and the truth is, image, video and ausio reproduction is nearly impossible to control on the internet. Many artists and designers go to great lengths to protect their own images (with copyright notices and water marks) but routinely grab images for their own use without permission or giving credit, claiming to use it only for reference or changing it to a degree where it is no longer recognizable, and this can very well be a fair case of appropriation. But of course they would not want it done with their images. Fan Art (clear copies and derivations of protected images) are rampant yet tolerated and even encouraged by major media corporations, because it is a form of participatory appreciation that ultimately manifests in increased sales for the parent companies. Students are allowed to use copyrighted materials to practice their craft (appropriating music for a demo reel for example) , but not teachers or professionals. Except that nearly every professional animation studio uses unlicensed, copyrighted songs to accompany their demo reels with impunity. Of course, they would not do this with media they are getting paid to create. 


 How is a creative person supposed to sort through all of this?  

1. Apply the Golden Rule... really, if you would not like your work to be handled in a certain way, then don't do that to other artists and designers.

2. You can register a piece of media with the U.S. copyright office and/or apply the copyright mark onto or next to the work. This lets the world know that you intend to protect the work in a court of law if you feel it has been infringed. You do not have to do either to be protected by copyright law in the U.S., they are really methods for securing creation dates and providing notice.

3. You can threaten litigation in a cease and desist letter in an attempt to convince another artist or designer to stop using your media. But remember... a copyright's legitimacy can only be determined, if it is litigated and there is a ruling by a jury, judge or arbitrator. Up to that point, its validity is strictly conjecture. 

4. you can apply the test for fair use if you are not sure wether you or someone else is infringing on a copyright. Here, I have included excerpts from the guidelines created by Stanford University:

The Transformative Factor: The Purpose and Character of Your Use:

• Has the material you have taken from the original work been transformed by adding new expression or meaning?
• Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

The Nature of the Copyrighted Work

• Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.
• Parody and journalism (with a credited source) can also be fair use.

The Amount and Substantiality of the Portion Taken

• The less you take, the more likely that your copying will be excused as a fair use. 
• However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work.

The Effect of the Use Upon the Potential Market

• Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. 
• Depriving a copyright owner of income is very likely to trigger a lawsuit. 

 Additional General Resources  

Stanford University Libraries Test for Fair Use (The Full Text)
This website provides a succinct test with which you can measure fair use.

How to Register a Work with the U.S. Copyright office
This is their website

Share Your Work With Others 
in a predefined manner using a Creative Commons License

Music in the Public Domain

Fair use information

 Specific Legal guides: Philadelphia Volunteer Lawyers for the Arts  

Below are links to a plethora of legal guides that have been created and made public by the Philadelphia Volunteer Lawyers for the Arts. • •  http://www.artsandbusinessphila.org/pvla/pvlaresources.asp

Disclaimer from their website: These materials may help clarify the practical and legal issues encountered by artists and arts and cultural organizations. They are intended only to provide an understanding of basic principles. The information is for general informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. The content should not be relied on without seeking the advice of a professional advisor experienced in the subject matters of these materials and based on the facts and circumstances of a particular transaction or situation.

GENERAL INFORMATION 
AN ARTIST'S GUIDE TO WILLS AND ESTATES
CENSORSHIP-DECENCY-OBSCENTIY
INTELLECTUAL PROPERTY: AN ARTIST'S PRIMER
THE RIGHT OF PUBLICITY
NONPROFIT INCORPORATION
"THE NAKED COWBOY VS. M&M"- AN EXPLANATION OF TRADEMARK INFRINGEMENT
PARODY AND SATIRE
THE FAIR USE GUIDE
RIGHT OF PRIVACY
USER-FRIENDLY GUIDE TO COPYRIGHT

FILM
DOCUMENTARIES: A SAMPLE RELEASE FORM
FINANCING YOUR FILM PROJECT

MUSIC
MUSIC PERFORMING RIGHTS
MUSIC PUBLISHING
MUSIC LICENSING

VISUAL ARTS 
TRANSFORMATIVE WORKS AND COPYRIGHT: A VISUAL ARTIST'S PRIMER
PRIVACY AND PHOTOGRAPHY
THE VISUAL ARTISTS RIGHTS ACT OF 1990
FINDING A LIVE/WORK SPACE FOR ARTISTS
A GUIDE TO LICENSING STOCK PHOTOGRAPHY

SAMPLE LEGAL DOCUMENTS
EXTRAS AGREEMENT
LITERARY AGREEMENT
LOCATION AGREEMENT
MUSIC AGREEMENT
TALENT AGREEMENT