Monday, December 9, 2013

Regarding Fair Use: You Still Need a Lawyer

Recently, I found an interesting note on The Ohio State University Press site. Interesting, that is, if you've ever wondered, 'should I use that?' when you're writing. Here's what the press tells its current authors:

Copyright and Permissions

Questions often arise whether an author needs permission to use certain material in his or her manuscript. The following links are offered to help make that determination, but none of this information is intended as specific legal advice. Note that in your contract, you have guaranteed us that you have taken care of all necessary permissions and forwarded copies of those permissions to us. Nevertheless, just because something is not your own does NOT automatically mean that you need permission to use it. A tremendous amount of material is in public domain and needs no permission. Your use of works still under copyright protection may fall under the fair use exception—especially when it is for scholarly work or research—and may therefore need no permission.. This schema is designed to help you ask the right questions.
In order to answer the first question, whether a work is under copyright protection or is in the public domain, this site (not an OSU Press site) offers reliable information on when works are protected by copyright and when they are not.
If you get to the second question and need to determine whether your use of the material falls under the fair use exception or not, you may consult this document, prepared by the University of Chicago Press, or consult the paragraph in the copyright law itself that explains the fair use exception. Text for the entire U.S. Copyright Act can be found here.
If you are still unsure, we recommend that you consult an attorney.
Illustrations are often the source of significant confusion, so we offer two additional observations to help you determine your legal obligations in using them.
1. It is tempting to confuse copyright of an original image with the potential copyright of a modern reproduction. For instance, an image from the 15th century is clearly in the public domain. But if a museum takes a photo of the original for you to use in your book, is this new photo covered by its own copyright? An influential law article argues that a simple reproduction that “merely repackages or republishes the original” does not meet the criteria for a copyrightable work. In other words, a photo made in the 21st century of a work in the public domain does not carry any copyright in and of itself, and its use is governed by the copyright status of the original. See “Toward a Fair Use Standard,” by Pierre N. Leval (103 Harv. L. Rev. 1105 [1990]).
2. Please note that the question of whether permission is needed is entirely separate from the necessity of providing us with images of suitable quality that we can reproduce adequately in print. Your use of an image may be fair use or the work may be in the public domain, but you may still have to pay the owner of the image for the reproduction that we need. In these cases, you are purchasing access (see point 1 above) not paying a copyright permission fee. There may be a variety of sources for a copy of the image that meets our requirements, and you may be able to shop around for the best price or find a free source. Or there may be only a single source, and you will then be subject to whatever terms the owner may want to impose on your purchase.

~Diane Stresing

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