How far is fair?

Development art: The Big Book Adventure by Emily Ford, ill. by Tim Warnes (Silver Dolphin 2018) | Image © 2018 by Tim Warnes (unpublished)

“The problem with copyright enforcement is that when the parameters aren’t incredibly well defined, it means big corporations, who have deeper pockets and better lawyers, can bully people.”

— Shepard Fairey

 Last week’s article prompted my friend, Christ (rhymes with wrist) to message me. in the process of publishing his new book, he’s learned that the U.S. has changed its copyright laws. 

He writes: ‘The protections now only apply if you submit a formal filing within the first three months of a work being released. (This is a huge change.)’ Adding, ‘I feel like I have fallen down the rabbit hole.’

Now why would the US government be eroding the rights of creators like that? It’s nonsensical, unfair and definitely harmful to the creative community.

In contrast, copyright protection automatically exists in the UK under law. As soon as you write, draw, or record something original (i.e. not directly copied or adapted from an existing work) then BOOM! it has copyright protection. (If you want, you can even stamp that dinky © symbol on your creations.)

 

Unsurprisingly, there are a few copyright caveats -

‘[I]f a work is produced as part of employment then the first owner will normally be the company that is the employer of the individual who created the work.’

(An example of this would be Tim Burton’s The Nightmare before Christmas. Burton dreamt up the idea while an employee as a Disney animator. Meaning Disney owns it.)

You cannot copyright an idea. (As mentioned above - it must be recorded in some physical form.)

 

Copyright applies whether the creation remains unpublished or not. Therefore you must receive authorisation from the creator to use their work in any way. 

‘Does this mean that every single one of the billions of pictures on the internet is either authorized by the creator or in violation of online images copyright?’ asks Danielle Prager in A Guide To Copyright and Fair Use Laws For Online Images. ‘The answer is no – and this is where fair use comes into play.’

I began writing about fair use - sometimes called ‘fair dealing’ in the U.S. - last week (before I became sidetracked by Old Mr. Bunny!) Used to describe some limited activities that are allowed without infringing copyright, the details of fair use varies from country to country.

 

A fair use of Paolo Nutini’s eyes! From The Big Book Adventure by Emily Ford, ill. by Tim Warnes (Silver Dolphin 2018) | Image © 2018 by Tim Warnes

 Generally speaking, the Use of copyrighted material is considered fair Use when used in:

Private research

Adaptations that make readable copies for people with disabilities (e.g. a Braille version)

Educational use

Provided that:

- it is solely to illustrate a point;

- it is not done for commercial purposes and will not ‘undermine sales of teaching materials’;

- the source material is sufficiently acknowledged.

News reporting (with the exception of photographs)

Provided that:

- the source material is sufficiently acknowledged;

- the amount of the material quoted is no more than is necessary for the purpose.

Criticism and Reviews

Provided that:

- the work has been made available to the public (i.e. is already published);

- the source material is sufficiently acknowledged;

- the material quoted is accompanied by some actual discussion or assessment (to warrant the criticism or review classification);

- the amount of the material used is no more than is necessary for the purpose of the review.

 Stanford Universities Libraries’ Copyright & Fair Use web page summarises some cases from the US courts. The article has given me confidence that the use of third party material on my blog would (to the best of my knowledge) be considered allowable under Fair Use practice.

Here’s why:

 

Copied content is credited and/or linked to the source.

 

Copyright owners/publishers are caused no financial harm because:

- my use does not compete with or detract from the original;

- only a small portion of the work is excerpted;

- I am not derogatory (the purpose of my articles is to highlight quality books);

- my blog is potentially of financial benefit to them - I am effectively promoting their books (which may result in book sales and library loans);

- many of my Good to Read recommendations are (at the time of publishing my articles) out of print. Therefore my copying could not diminish sales from which the creators would benefit (since authors do not receive a royalty on second-hand books), and would not adversely affect their future marketability.

- I am not capitalizing on the authors featured. My articles are available free of charge with the intent of encouraging literacy.

- I am pointing to (rather than trying to reproduce) the “heart” of my Good to Read recommendations.

 

Often the work copied is reproduced within the broader context of a discussion (to support my analysis) rather than a straight forward review of the book. As such, they would be considered news commentary.

- Examples include my articles Drag Queen Story Hour and Using picture books to combat racism. 

 

Copied content is used in an educational context:

- There is a scholarly nature to my articles; their purpose is informational. It is not to ‘supplant the copyright holder’s commercially valuable right[s]’;

- they serve to help the public access books that I consider are worthy of attention: guiding you to the Good Stuff so you can give your kids a great start to their reading journey.

 

My use is transformative:

- its purpose is to inform the public about the value of picture books in the development of a child and to society as a whole (whereas authors/publishers are in the children’s book business to sell books, and the original material is to be shared directly with a child).

- The reproduction of video content in the context of my commentary adds something new to the videos.

 

I present the work in smaller versions and of inferior quality to the original reproductions.

 

The legalities are ultimately down to the interpretation of a court, should it ever be challenged. Even though I feel pretty secure that my use of copyrighted material falls within acceptable fair use practice, it still feels, well, a little weird. After all, copyright is the backbone of my income.

Which is why I try to contact copyright holders when I reproduce their work.

And it’s been interesting. 

Often, I never hear back.

A few say, no.

Just occasionally, I receive encouraging, friendly replies like these:

 

Your post is lovely and very well presented. And I agree, you are within fair use. Thank you for your courtesy and for sharing the book in such a thoughtful way.

- Publisher, Enchanted Lion Books

 

I agree that your use of 61 words falls under Fair use. Thank you for your concern about copyright, we are very grateful…

- Sceptre Books

 

Jon [Scieszka] and Lane [Smith] have no problem with this and are happy to be included …

- Steven Malk, Writer’s House agent

 

But on the whole, the legal concept of fair use doesn’t seem to feature on the radar of most publishers. With so many hoops to jump through and forms to fill in, they don’t make it easy to get approval/permission! (Major publishers with multiple imprints are the worst, pushing one from pillar to post.)

I don’t blame the publishers for protecting their interests. But why the discrepancy in responses? And I’m left wondering why they’re happy to provide review copies for book bloggers to share, yet I’m told -

 

‘There is a fee charged for usage per request... If in the future you need to use any original artwork, illustration or written work ... please contact us for a quote.’ 

 

‘After a lot of discussion within the company we have agreed to you using the images ... but request that in future you ask before using and we reserve the right to charge you for any further uses of any of our author’s works.’

 

Finally, parody, caricature and pastiche - all are allowable under fair use dealing. The Maurice Sendak Foundation confirmed this when I asked for approval of my illustrations in the article, Are Sendak’s Wild Things Gender Queer? The Curator replied, saying they were covered by fair use since ‘homages and parodies don’t need permission.’ (Unfortunately I didn’t discover this until after publication of The Big Book Adventure - in the end all reference to the Wild Things was dropped from the book for fear of litigation.)

At the end of the day, if it went to court, what constitutes fair use is in the eye of the judge. And no one wants to end up there. These are murky (and slightly scary) waters. Once you start poking around, there’s no telling what you might discover.

 

Development art: The Big Book Adventure by Emily Ford, ill. by Tim Warnes (Silver Dolphin 2018) | Image © 2018 by Tim Warnes

 SourcesBrainy Quotes Fact sheet P-27: Using the work of others - The UK Copyright Service WHAT’S THE DIFFERENCE BETWEEN A PATENT, A TRADEMARK, AND A COPYRIGHT? by Michael Henry (Patent Law News and Insights)Exceptions to Copyright - gov.uk A Guide To Copyright and Fair Use Laws For Online Images by Danielle Prager Copyright & Fair Use: Summaries of Fair Use Cases - Stansford University Libraries