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Violated Your What?
The Basics of Copyright for the Student Affairs
Professional
Jennifer
D. Sawyer, Esq.
Bernstein, Shur, Sawyer & Nelson, P.A.
Portland, ME
www.mainelaw.com www.adv-ed-solutions.com
Posted February
15,
2002 Student
Affairs Online, 3 (Winter)
You’re the Assistant Director of Residence Life
and you’re planning orientation/move-in for next year.
You’ve decided on a “There’s No Place Like
Home” theme, complete with a yellow brick road and all of the
Wizard of Oz characters (don’t laugh - this really was the
theme my first year as an R.A.!). You go to http://thewizardofoz.warnerbros.com/
and download some great pictures of the Emerald City, the
Scarecrow, Dorothy, and, of course, Toto too. You then duplicate
the pictures and put them on your Department’s website and
create T-shirts, with screenprinted images of the Oz characters,
for your R.A. staff. You also revise your Department’s
letterhead for the summer to include a picture of Dororthy’s
red shoes and the Yellow Brick Road. You even go so far as to blow
up the pictures of the characters so that you can have life-sized
cardboard cut-outs to place in each of the residence hall lobbies
on move-in day. Thinking you can just never have enough of a good
theme, a week later, you return to the Wizard of Oz website, where
you download a sound file of Judy Garland singing “Somewhere
Over the Rainbow”. You then ask your tech person to put the
sound file on your Department’s website so that every time
someone clicks on the link to “New Student Orientation”,
Judy Garland belts out “Somewhere Over the Rainbow”
&endash; right from the Department’s web page! Your staff
loves it and you’re pretty darn proud of yourself for using
modern technology to pull together such an awesome theme.
And then you get a call from a very irate
Dean of Students. She has received a letter from Warner Brothers
that claims the University is “willfully violating”
Warner Brothers’ copyright and demands that the University
“cease and desist” all such willful violation
immediately, or face a lawsuit that will make the Board of
Trustee’s heads spin.
Copyright Protection
Have you violated Warner Brothers’ copyright
just by downloading and using pictures that you found on their
website? (Come on, its not like you sold them or anything!)
Yes, in fact, you have.
The United States Copyright Act is a federal law
that protects the expression of ideas. Literary works, musical works,
dramatic works, choreography, pictures, sculptures, motion pictures,
multimedia works, and architectural works can all be copyrighted.
Copyright protection is generally valid from the moment the work is
created until 70 years after the author’s death.
A copyright owner has six exclusive rights over
his or her work. That means no other person can exercise these rights
without the permission of the copyright holder. These rights include
the right:
- to make copies;
- to prepare derivative works;
- to distribute copies;
- to perform the work publicly;
- to display the work publicly; and
- to perform the work publicly by means of a sound
recording.
In most cases, you can purchase a
“license” from the copyright owner that will allow you to
exercise one of these six rights in place of the copyright holder for
a specific period of time. For example, I might purchase a license
from Warner Brothers to use one specific picture of Dorothy on my
website for exactly two years. At the end of the specified time, my
license expires and I can no longer use that picture, unless I
renegotiate with the copyright holder for an extension or a new
license.
Any improper use of a Copyright protected work
subjects the infringer to legal action. A copyright owner is almost
always entitled to injunctive relief (in English: a court order
ordering the infringer to stop infringing). The copyright owner may
also recover:
- actual damages;
- any profits made by the infringer;
- statutory damages of $500 - $100,000 per work infringed;
- and attorney’s fees.
Note that the statutory damages are per
work, which means that, if you made 300 T-shirts with Toto’s
picture for your R.A. staff, the University could be liable a minimum
of $150,000 in damages ($500 X 300 shirts) if the copyright holder
pursued such an action!
Fair Use
Many people mistakenly think that the “fair
use exception” entitles anyone in an educational institution to
freely copy and distribute protected works. Not so. If the use of a
copyrighted work is for “criticism, comment, news reporting,
teaching, scholarship or research,” it will most likely be
considered to be a fair use of copyrighted material. Compare an art
teacher copying a photograph of the Scarecrow so that his students
may develop their drawing skills with the Resident Director who
copies the same picture to decorate her residence hall. The art
teacher’s copying is probably fair use because it is to be used
for teaching, where the R.D.’s copying is probably not fair use
because it is not for criticism, comment, news reporting, teaching,
scholarship or research.
The fact that a copyrighted work is used for
“criticism, comment, news reporting, teaching, scholarship or
research” does not alone make it a non-infringing fair use. The
following four factors are also considered:
- Whether the use is for commercial gain or for nonprofit
educational purposes. If the work is being used for nonprofit
educational purposes, it is more likely to be a fair use.
- Whether the nature of the copyrighted work is informational
or creative. Use of parts of material in informational works
is more likely fair use than use of parts of creative works.
- The substance and materiality of the portion of the work
used as compared to the whole work. The greater the amount of
work used, the less likely it will be fair use. Also consider
whether the “heart” of the copyrighted work is
used.
- The effect of the use on the potential market for the
copyrighted work. If the copying of a portion of a copyrighted
work will potentially harm the author’s ability to sell the
work, it is not fair use.
Using Downloaded Pictures and Music on your
Website
Its as easy as a “right click” and a
simple “save as”. So, if it is that easy to download a
picture from someone else’s website, I must be able to use it,
right? Wrong. Almost all pictures are eligible for copyright
protection, and if they are in fact protected, you are prohibited
from copying them, distributing copies of them, and from displaying
them publicly without holder permission. Downloading pictures from
somebody else’s website and putting them on yours clearly
constitutes copying, distributing and displaying copies. Each
unauthorized copy made represents one violation. Granted, it is
unlikely that a representative from Warner Brothers will be strolling
through your residence hall and notice the life-sized cardboard
cutout of the Tin Man in your lobby, but it is highly likely
that such a representative will notice such pictures on your website.
Many copyright holders employ people to do nothing but surf the
Internet, looking for violations of their copyright. This
doesn’t mean you can never use a picture on your website, it
just means that you need to obtain permission before you use the
photo. Unfortunately for schools on a limited budget, obtaining
permission usually means paying a licensing fee to the copyright
holder.
Sound files are even easier to copy, considering
that they can either be download from a website or uploaded from a
personal compact disk. But you cannot legally stream either uploaded
or downloaded music on your website without first obtaining two
separate licenses to do so.
All recorded songs are copyrighted on two levels:
the songwriter retains ownership rights to the lyrics and composition
(the “musical composition portion”), while the record
company that recorded the song retains ownership rights to the actual
recorded performance (the “sound recording portion”).
Therefore, before you make any public performance of any copyrighted
song, you must first obtain separate licenses from both the
songwriter and the record company. Steaming sound recordings on your
website is clearly a public performance.
A license to perform the sound recording
portion of a song can be obtained directly from the United States
Copyright Office. One license enables an entity to perform all the
copyrighted works for which that entity obtains a musical composition
license. The rates for these licenses are currently the subject of an
arbitration proceeding, but it is expected that the rates will be
structured as an annual flat fee based on the number of users (i.e.,
the number of people who see your website every day) multiplied by
the number of hours the music is available.
A license to perform the musical composition
portion of a song is most often purchased as a blanket license
from one or more of the three recognized “performing rights
societies” &endash; ASCAP, BMI or SESAC. A blanket license from
any one of these societies will entitle you to the performance rights
of any of the musical works in their respective catalogs. ASCAP and
BMI share the majority of the market, whereas SESAC maintains a
smaller, more specialized catalog. The current minimum license fees
are: ASCAP at $264/year, BMI at $259/year, and SESAC at $150/year. As
you can see, the cost of having music streaming on your website can
be quite high!
The Moral
So, the moral of the story here is that just
because you can download it in minutes, or photocopy it in seconds,
it doesn’t mean you can use for free. And don’t be fooled
into thinking that you won’t get caught because you are just a
little department at a tiny college in the middle of nowhere &endash;
once you’ve posted something on the World Wide Web, you’ve
made yourself accessible to the world. Make sure you obtain
permission to use copyrighted work before you actually use it.
Jennifer D. Sawyer is an attorney
at Bernstein, Shur, Sawyer, & Nelson in Portland, Maine, where
she practices Education Law and is a principal consultant in Advanced
Educational Solutions, a legal consulting division of the firm that
helps educational institutions navigate their way through complex
legal and policy issues. Before she became an attorney, Jennifer
worked in Residence Life at the University of New Hampshire and
Northeastern University.
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