Copyright and Fair Use for Creative artists Presented by SBM ACES Law section

By Roberta M. Gubbins

On April 3rd, the Saturday before Easter, a group of lawyers, students, creatives, and the curious met for a day of discussion around the issue of copyright and fair use of original works of authorship. The event, sponsored by the State Bar of Michigan Arts, Communication, Entertainment & Sports Law Section, was held at Grand Valley State University, Devos Campus, in Grand Rapids, MI.

Jeffrey Nelson, attorney with Warner, Norcros, Judd LLP, kicked off the event with a general discussion of copyright. Copyright law is found in the US Code, Title 17, Sec. 102.

Looking at the elements of the law, Nelson said, “An original work of authorship includes literary works, dramatic works, choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. For a work to be original, it must be an independent creation, and contain a modest amount of creativity. For example, factual material is not copyrightable, however, the manner in which it is presented may be. And, finally, the work must be fixed in some medium or form capable of identification. Electronic files are a medium that are capable of copyright protection.”

“The Internet has created a lot of issues, he said. “It gives you access to millions of copyrighted items that you would not have had access to before. Access to the item does not necessarily give you the right to use it. The website may allow the viewer to use the material for personal use but not for commercial use. The absence of specific restrictions on the use doesn’t allow you to use it for whatever you want.”

“We litigate copyright cases, representing the creative types,” said Julie Ahrens, attorney with the Stanford Fair Use Project. “We also advise film-makers who are using copyrighted material in their films about how they can use that material and help them get affordable insurance for their protection.”

The fair use doctrine allows creatives to use portions of copyrighted work without permission for criticism, comment, news reporting, teaching, scholarship, or research. “You have the First amendment right to free speech and you have the copyright law that in some ways controls free speech. There has to be a balance between what is copyrighted and what is someone else’s free expression.”

When reviewing fair use issues, courts consider factors such as the purpose and character of the new use, the nature of the original work, the amount and substantiality of the portion used, and the effect of the use on the market. For example, Aherns said, “if you would buy the second work as opposed to buying the original work, that has a detrimental effect on the value of the original work.”

Following lunch, Julie Aherns, Roger Rappaport and Matthew Bower presented a discussion of the case involving Steve Vander Arks proposed publication of a reference work, the Lexicon, based on the Harry Potter Lexicon website. The book is an A to Z encyclopedia of the characters, spells, creatures, places, events and magical items in the Harry Potter series.

Rappaport, publisher, RDR Books stated he knew there was a problem when he received a letter asking him not to publish the book. Rappaport did not give up, he sought help and fought back. Eventually, US District Court Judge Robert Patterson ruled that the book infringed J.D. Rowling’s copyright but with also ruled that, with editing of passages that were taken verbatim from the original work, the fair use claims were valid and the book could be published.

The Right to Write Fund (The Fund), along with others assisted Rappaport with his defense against J.K Rawlings and Warner Bros. Entertainment, Inc. The Fund was created to be an educational repository for the 21st –century freedom of expression and Fair Use issues writers and publishers encounter. For more information, visit www.righttowrite.org.

Photos by rmg, shows Julie Aherns, Matt Bower and Jeff Nelson, relaxing before speaking at the Copyright and Fair Use for Creative artists workshop presented by the State Bar of Michigan  ACES Law section.