Tag: United State Copyright Act

• Fan Fiction, Copyright Law, and Fair Use

  

  I spoke at Phoenix Comicon last week on fair use and fan fiction. I had a great group of people in my audience with who had ideas of turning novels into graphic novels and who wanted to know more about the legalities of things like the Phoenix Comicon badges. This year’s badge featured a parody of Angry Birds and The Avengers.

  

  Fair use is a defense against claims of copyright infringement. What generally occurs in these situations is you use someone else’s work in a project, the original copyright owner sues you for copyright infringement, and you respond with an argument that you used the copyright owner’s work but that your use was transformative enough to qualify for protection under the fair use doctrine. The court considers four factors to determine if your use of another’s work is protected by fair use.

  1. Purpose and character of your use of another’s work
  2. Nature of the copyrighted work
  3. Amount and substantiality of the copyrighted work used
  4. Effect on the market

  These cases are evaluated on an individual basis. There’s no mathematical equation to determine if you’re protected by fair use. The main factor the court considers is whether your work becomes a substitute for the other person’s work. Parodies are generally transformative enough to qualify for fair use. Let’s look at the fair use factors in regards to the Angry Birds/Avengers badge.

  1. Purpose and character: Phoenix Comicon is a commercial venture, but attendees are paying to attend the con, not specifically to buy the art on the badge.
  2. Nature of the copyrighted work: Both Angry Birds and The Avengers have been previously published. One is a game, the other is a movie. The original copyright owner is generally favored if the work was not previously published.
  3. Amount and substantiality used: The looks of the birds and the Avengers were copied. The looks of both were required for the audience to understand the parody.
  4. Effect on the market: It’s unlikely that someone will seek out Angry Bird art or Avenger art and accept this as a suitable substitute. No one will use this picture as a substitute for the video game or the movie.

  Was this badge protected by fair use? Probably, but I’m not a judge and it’s not my call to make.

  When it comes to fan fiction, an artist isn’t going to get in trouble if the copyright owner doesn’t know about your work or if they don’t mind that their fans create their own work. If you’re really worried about getting in trouble, you can always ask the copyright owner for permission or a license to use their work.

  Fan fiction and fair use are fact specific issues. When in doubt, consult an attorney.

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  Please visit my homepage for more information about Carter Law Firm.

  May 31, 2012

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  Ruth Carter

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  Geek Law, Intellectual Property

  Carter Law Firm, Copyright, copyright infringement laws, copyright law, Copyright lawyer, copyright rules, Copyright violation, Fair Use, Fair use doctrine, Fair use images, fan fiction, Phoenix Comicon 2012, Ruth Carter, United State Copyright Act

• Copyright Infringement on Pinterest

  

  There’s a strong possibility you’re committing copyright infringement on your Pinterest board.

  For the sake of full disclosure, I’m not on Pinterest. I don’t need another internet addiction. From what I hear, everyone who’s on it, loves it. Essentially, Pinterest lets you create “boards” where you share pictures of things you like. As you visit various websites, you “pin” things that you like, and add them to our Pinterest boards. Then people who visit Pinterest can see your boards and everything you like.

  So Where Does Copyright Come Into Play?
  Copyright protection is extended to any original work of authorship that is fixed in a tangible medium. You don’t have to register it with the U.S. Copyright Office to get this protection. When you have a copyright in a picture or other work, you have the exclusive right to copy, distribute, display, and perform the work and to make derivative works based on your work.

  If you take a picture, you have the exclusive right to decide where it will be displayed, including on which websites. When someone pins your picture and adds it to their Pinterest board, they likely made a copy of it without your permission. That’s a violation of the Copyright Act.

  What About Fair Use?
  The Fair Use provision of the Copyright Act allows you to copy a work for the purpose of criticism, comment, news reporting, teaching, or research. Pinning something on your board probably doesn’t qualify as any of these things.

  Is Pinning Someone’s Work Ever Ok?
  Absolutely! You can pin someone’s work without worrying about being sued if they’ve given you permission to do it. Look for works that come with a Creative Commons license. You may be required to give an attribution to the author when you pin their work. If a work doesn’t have a license, you could always ask the author for their permission to pin their work.

  Should I Be Worried about Pinterests Terms & Conditions?
  Probably. Have you read them? A woman who is a lawyer and a photographer recently deleted her Pinterest boards after reading them. According to her, Pinterest users agree to some strongly worded terms.  If you are a Pinterest user, you’ve agreed

  • You own or have permission to use everything you pin on Pinterest;
  • That nothing you pin violates or infringes on any third party’s copyright, trademark, or other intellectual property or rights to publicity or privacy;
  • You will defend, indemnify, and hold Cold Brew Labs (Pinterest’s creators) harmless against all claims, damages, and expenses (including legal expenses) related to your use of the site or violations of the site’s terms and conditions; and
  • You accept all the risks related to using the Pinterest site “to the maximum extent permitted by law.”

  So, if you and Pinterest get sued for copyright infringement for something you pinned on your board and you lose, you’re required to pay your and Pinterest’s legal fees and the fine assigned by the court. The fine for willful copyright infringement can be up to $150,000. (Hat tip to Cold Brew Labs’ legal counsel on drafting such great terms and conditions!)

  What Do I Do If My Copyright’s Being Infringed on Pinterest?
  You have three main options when your copyright is being infringed on Pinterest:

  1. Nothing.  If you don’t have a problem with it, do nothing. I think a lot of people select this option because Pinterest exposes their work to a larger audience.
  2. Sue for copyright infringement. This can be a long expensive process, but it’s your best chance for a financial gain.
  3. Send a DMCA takedown notice. If all you want is for your work to be removed from someone’s board, send a Digital Millennium Copyright Act takedown notice to Cold Brew Labs’ statutory agent. The Copyright Act tells you what information you have to include in the notice, or you can find a local attorney to do it for you.  Once Cold Brew Labs gets the notice, they’re required to remove the work that allegedly infringes your copyright.

  From what I know of Pinterest, I suspect copyright infringement is occurring on most Pinterest boards. You have to decide for yourself how much risk you’re willing to take. If you need help assessing the legal risk related to your Pinterest boards, contact a copyright attorney in your area.

  UPDATE (3/26/2012): Pinterest announced its new terms of service will become effective on April 6th. They allegedly make it easier to report copyright infringement.

  March 1, 2012

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  Ruth Carter

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  Intellectual Property, Photography & the Law

  Copyright, Copyright Act, Copyright violations, Creative Commons, creative commons license, Digital Millennium Copyright Act, DMCA, DMCA takedown notice, Fair Use, law, Pinterest, Ruth Carter, United State Copyright Act