BACK TO BASICS (of copyright)! Part 3

In this installment I address (i) use of another’s copyright registered work and (ii) international copyright protection. With the defense of fair use[1] a third person without authorization (i) copies a portion of another’s work, or (ii) changes the original work into another version of the original work, but without infringing.[2] Whether use of another’s work comprises fair use requires evaluation of: (i) purpose and nature (transformation) of the copying person’s work, (ii) nature of original work, (iii) amount and substantive nature of the copied portion,  and (iv) the effect of this use upon the potential market for, or value of, the copyright registered work.[3]

Unfortunately, each judicial region of the country may promote a different judicial interpretation of this defense. Moreover, these different regions (that is, for each U.S.  federal circuit court of appeals) may agree, for example, on fair use for literary works, but they may interpret this defense differently for visual or and/or musical works. Is there a cost-effective manner by which to avoid a litigated fair use debacle? Actually, the best practice is to obtain the written permission of the copyright owner(s).  If the identity and contact information for the copyright owner(s) is not apparent, then authorizing a search within the U.S. copyright office is a satisfactory option.  The copyright office charges an hourly fee for this search, although there is no guarantee that the search will provide the sought-after results.  However, this approach is significantly less expensive than (i) responding to a cease-and-desist letter or (ii) undertaking defensive litigation in court for infringement.[4] Other options include obtaining licenses from organizations such as American Society of Composers, Authors and Publishers at ASCAP.com for public performance music licenses.

The person who receives a permission should always provide an appropriate value in exchange for permission. Why? Because under U.S. law each party should provide value to the other party for the contract to be enforceable. [5]  The value provided, which is generally comprises a financial amount, should also be properly documented.

Finally, how does one protect U.S. copyright registered works internationally? Generally, a U. S. work is protected in another country if that country is a party to a treaty with the United States for copyright protection. However, there may be preconditions to protection under another country’s copyright law, assuming they have one.  The copyright owner should also remember that a U.S. work only receives the protection which that other county’s law provides its own citizens. ©2022 Adrienne B. Naumann, Esq. All rights reserved. Ms. Naumann does not endorse or sponsor the advertisements at adriennebnaumann.wordpress.com.


[1] 17 U.S.C. section 108.

[2]  Whether there is sufficient transformation of an original photograph to vindicate creation of Warhol’s paintings depicting the identical subject matter is Andy Warhol Foundation for the Visual Arts v. Goldsmith, 992 F.3d 99 (2d Cir. 2021). This case is currently pending before the U.S. Supreme Court. There are other exceptions for some organizations: For example, libraries and archives may create limited number of complete copies under specific conditions.

[3] 17 U.S.C. 107. That a work is unpublished does not prevent a fair use defense if all four statutory factors are considered.

[4]  This letter generally identifies the work, how it is being infringed, and a deadline for a response prior to commencing infringement litigation.

[5] A permission is one kind of contract.

Advertisement

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: