The magazine had reprinted an article by author Monica Gaudio without her permission. That’s right, instead of contacting Gaudio and asking for her permission to print the article, they just ran it. When Gaudio discovered this, she asked them to make a donation to a local college in lieu of compensation. The magazine responded,

But honestly Monica, the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace….

The magazine’s director, Judith Griggs, continued, stating that the piece was so poorly written that the author should compensate her.

There are a couple things to learn from Griggs and her major missteps, including copyright and how to effectively respond to PR emergencies. For now, let’s talk about copyright.

What is Public Domain? What is Copyright?

Griggs very incorrectly stated, “the web is considered ‘public domain’.” Actually, public domain, according to Miriam Webster, is property that “belong[s] to the community at large, [is] unprotected by copyright or patent, and [is] subject to appropriation by anyone.” Original works, however, like Gaudio’s is protected by copyright law.

To get the official definition, I checked out the U.S. Copyright Office’s website. It states, “Copyright, a form of intellectual property law, protects original works of authorship [published or unpublished] including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” This includes original works published online…like this article for instance.

Fair Use = Risky Business

So, how can we use content at all? Well, the best way is to receive written permission from the original content creator.

Another way is through fair use, which is the reason I’ve been able to use direct quotes in this article. Fair use can be tricky. Again, the U.S. Copyright Office, “the distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” Griggs did credit Gaudio for the article, but as we can see from the Copyright Office, it doesn’t cover the fact that she didn’t ask permission.

Using content under fair use is all about judgment. Does your new work rely too heavily on others work? Is a considerable portion of the work your own ideas or someone else’s ideas? Have you used others’ content in analysis or have you re-interpreted it in some way?

The U.S. Copyright Office states that the best way to avoid infringement is to contact the author for permission or create your own original content. The second best option is to talk to a lawyer who specializes in the field. If all else fails, you can take your chances with fair use.

Lesson Learned?

Here’s to hoping that magazine editor Griggs learned that just because it is easy to copy and paste online content doesn’t make it public domain or legal to reprint without permission.

A Few Resources

• Gaudio had a friend who noticed that her article had been published in the magazine. One automatic way to check to see if your content is copied around the web is to use the freemium service, Copyscape.
• Have all of the legal issues around copyright sapped your creative spirit? Check out the Creative Commons licenses. CC is a collection of licenses that allow for various uses of content, designated by the intellectual property owner.
• Learn more about plagiarism, copyright, and fair use at Plagiarism.org, a clearly written guide for content creators and students.
• For information about copyright and the internet, check out the University of New Hampshire’s School of Law.

Related Posts

• January 30, 2009 -- Lawrence Lessig and the Colbert Remix (2)
• February 6, 2010 -- Questionable Copyright Claim On White House Photos (3)
• March 3, 2009 -- The Search for the Elusive CC Music (Part 3/3) (1)
• October 17, 2008 -- Copyright Czar is now watching – hang on to your laptop (0)
• August 27, 2008 -- EU Copyright Following US Tracks (0)

Example of White House Flickr Photo

The U.S. government policy on photographs and copyright is pretty straightfoward: photos produced by federal employees as part of their job responsibilities are “not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.”

Why, then, is the Obama White House asserting that no one but “news organizations” can use its Flickr photos? Why is it asserting that manipulation is prohibited? Why is it asserting that photos may not be used in “commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House”?

Controversial Billboard Featured Barack Obama

Controversial PETA Ad Featured Michelle Obama

Obama Poster Based On AP

The “easy” answer is that this appears to be a heavy-handed White House response to last month’s controversy resulting from a billboard that implied the president endorsed The Weatherproof Garmet Co. The company used an Associated Press photo of the president in one of the company’s jackets as the basis for a Times Square billboard. (The billboard came down a few days after it was launched; the company had intended it to have a two month lifespan.)

Maybe it’s a response to PETA (People for the Ethical Treatment of Animals) using an image of First Lady Michelle Obama in an “anti-fur” ad. This also happened in January, I might add.

Or maybe it’s a (belated) response to the furor (and lawsuit + criminal investigation) generated by an artist who violated copyright when he modified an AP image into a poster that became an icon for Obama’s presidential campaign.

Whatever the reason, the assertion of these “rights” seems to be in direct contrast to official government policy and is certainly in direct contrast to reasonable expectations by the public, given that the photos are being produced with taxpayer (ie, public) money. Ironically, the same Flickr page that claims (almost exclusive) copyright also links to the U.S. copyright policy statement.

And it’s in stark contrast White House actions in May 2009, when Wired reported that its Flickr photos had been made “public domain” images. The White House had been using a Creative Commons license, but many had noted that “government works can’t be copyright.”

Let’s compare the U.S. stated policy on copyright with the current claims made by the Obama White House.

First, from USA.gov:

A work that is a United States Government work, prepared by an officer or employee of the United States Government as part of that person’s official duties, is not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work. Anyone may, without restriction under U.S. copyright laws,

• reproduce the work in copies in print or in digital form;
• prepare derivative works of the work;
• perform the work publicly;
• display the work;
• distribute copies or digitally transfer the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Caveats

• Other persons may have rights either in the work itself or in how the work is used, such as publicity or privacy rights.
• Not all work that appears on US Government Websites is considered to be a US Government work. Check with the content curator to see whether the work is a US Government Work. Works prepared for the United States Government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the United States Government..

Second, here’s the language being used on the White House Flickr account (reportedly since November) — even though the Flickr page links to the USA.gov site that says government photos are, effectively, public domain:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

The first thing I did was check to see if the photographer — Pete Souza — was freelancer or staff. It turns out that he is on leave from Ohio University and is both the official White House photographer and director of the White House photo office. It would be reasonable to assume that his office was instrumental in crafting the above language.

It would also be reasonable to assume that this policy was implemented after January’s dual embarrassments.

Here’s my question: does the White House have the authority to reverse the blanket “there is no copyright” policy of the federal government, simply because the President didn’t like his (non-White House owned) photo being used in what appears to be an endorsement? And is this the only recourse available to the White House to prevent unauthorized use of personal images?

I don’t know the answer to the first question (I’d like to think the answer is “no”) but there seems to be existing law that protects the Obamas from unauthorized use of images of their persons to imply an endorsement. As Politico reported in January, New York law protects individuals from unauthorized use of their image for advertising:

A couple of sources, including a New York lawyer who knows the state law on the issue well, say the company’s on quite thin legal ice, citing section 50 of New York Civil Rights law, which says that “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

Perhaps the White House reminded The Weatherproof Garmet Co. of the particulars of New York law and succeeded in getting the billboard pulled without having to file a lawsuit. The PETA “endorsement” is not as black-and-white a violation, as Michelle Obama’s office has publicly confirmed (May 2009, June 2009) that she does not wear fur, which is what the PETA ad says.

To the White House, I suggest the following change in that (unenforceable, in my opinion) copyright claim:

A reminder that photographs may not be used in any manner that suggests approval or endorsement of the President, the First Family, or the White House, whether the endorsement is commercial or political in nature.

It’s a good reminder. You could almost call it a public service announcement. And it’s certainly less heavy-handed than the questionable language currently in use.

Photos copyright their respective owners and published here under fair use (education, commentary). Click image to be referred to original site.

Related Posts

• December 13, 2010 -- The web is public domain? Mmmm, nope. (0)
• February 22, 2009 -- Watson’s CauseWired (0)
• February 7, 2009 -- Will Obama’s Economic Stimulus to Broadband Help? (0)
• February 2, 2009 -- The Voter Engagement Success of Obama ’08 (0)
• January 30, 2009 -- Lawrence Lessig and the Colbert Remix (2)

So, a couple of weeks ago Lawrence Lessig from Stanford appeared on The Colbert Report to discuss how copyright law is complicating things for everybody in the digital era, especially for kids, who are, unfortunately, being turned into criminals by institutions like the RIAA. Here’s the interview:

Lessig on The Colbert Report

Of course, near the end Colbert pretty much invites the world to take his material, even this interview, and “remix” it however they want. Three cheers for encouraging the Colbert Nation to steal Viacom’s intellectual property! And, of course, it was only a matter of time before the Interwebs would be all over this challenge.

In an ensuing episode, Colbert actually talks about it and shows us one of the remixes of the Lessig/Colbert interview:

Interview Remix

You gotta love it! Lessig is spot on about copyright laws being outdated. They stultify, marginalize, and criminalize consumers who want to engage intellectual material on their own terms – which NEVER implicitly means they don’t want to pay fair value for what they’ve recieved (but the media conglomerates hardly believe that!). Plus, there’s really no such thing as control; we’ve learned in Kathy Gill’s course this quarter (Evolutions and Trends in Digital Media) directly from Lessig’s book “Code” that cyberspace is a medium where regulation doesn’t work very well. Perhaps the very conceit behind traditional copyright itself is no longer viable in the age of social media. Creative Commons and the EFF are working to change things in this regard. Anyway, at the end of the day does all this copytheft mean that The Colbert Report is going to lose viewers and disappear from the airwaves? Hardly. If anything, this kind of commoditization, encouraged by a production that understands the importance of cultivating a relationship with its viewers, will keep more eyeballs on the Colbert franchise. Maybe the old guard could learn a lesson or two from that.

Kudos to Tim Jones and the Deeplinks blog at EFF.org for helping me find some of the material above.

Related Posts

• December 13, 2010 -- The web is public domain? Mmmm, nope. (0)
• February 2, 2009 -- Videos of UW Insight: The Digital President event (0)
• January 26, 2012 -- The Anatomy of an MCDM Foundation Course (1)
• January 18, 2012 -- MCDM Town Hall on Sunday (0)
• January 17, 2012 -- Why I think CES matters (3)

This week, President Bush signed the Pro-Copyright law. We now have a copyright czar. For me, having a copyright czar reeks of dystopian new-speak that would make Orwell proud. Why does copyright need a czar? How about potentate or terminator? Why czar? Oh well, I guess it fits with other recent efforts. We have a drug czar in our war on drugs. How is that war going? Are we winning? I don’t think so. I think we’re running neck and neck in that war with the war on poverty, i.e., we’re losing. Come to think of it, do we have a poverty czar?  Apparently Hillary Clinton thought it was a good idea but it never got any traction. For whom would this czar act as overlord, the rich? This would just get awkward…no future in it.

Lawrence Lessig published an Op-Ed piece in the New York Times, In Defense of Piracy.

“How is it that sensible people, people no doubt educated at some of the best universities and law schools in the country, would come to think it a sane use of corporate resources to threaten the mother of a dancing 13-month-old? What is it that allows these lawyers and executives to take a case like this seriously, to believe there’s some important social or corporate reason to deploy the federal scheme of regulation called copyright to stop the spread of these images and music? “Let’s Go Crazy” indeed!

It doesn’t have to be like this. We could craft copyright law to encourage a wide range of both professional and amateur creativity, without threatening Prince’s profits. We could reject the notion that Internet culture must oppose profit, or that profit must destroy Internet culture. But real change will be necessary if this is to be our future — changes in law, and changes in us.”

Where is fair use? Where is reason? Let’s hear from our Presedential candidates. Where does Joe the Plumber stand on this? Not a mention, not a whimper, it just doesn’t rise to the level of attention that would draw conversation when considered in the same field of priorities as war and global economy crisis. It’s too bad. The future of human communication is on the line but it hardly even draws a headline.

I encourage you to contact your congressional representatives and let them know that ths law is wrong headed, detrimental to free exchange of information and elitist.

Related Posts

• December 13, 2010 -- The web is public domain? Mmmm, nope. (0)
• February 6, 2010 -- Questionable Copyright Claim On White House Photos (3)
• January 30, 2009 -- Lawrence Lessig and the Colbert Remix (2)
• August 27, 2008 -- EU Copyright Following US Tracks (0)

The EU recommendation ignores the advice of a University of Amsterdam law professor who heads the Institute for Information Law (IViR). In 2006 and 2007, the IVir produced two reports for the EU that concluded “that a copyright term extension would be a bad idea with costs for consumers, competitors, and society as a whole.” You can read results of the research in this paper: Never Forever: Why Extending The Term Of Protection For Sound Recordings Is A Bad Idea (pdf).

Reportedly, a commission in the UK also determined that this extension would be a “bad idea.”

In July, a number of professors protested the proposed “Term Extension Directive” in a letter published in the Times (London).

Ironically, the United States copyright law grew out of English law, yet it is the United States that has led the move to extend the life of copyright. In 1976, Congress extended copyright to the life of an author plus 50 years, effective 1978, and retroactively extended the 28 year term to 75 years for individuals. Corporate-owned copyrights were set at a 75 years. Part of the argument for the extension was that the rest of the world was doing it … this current controversy suggests that was not the case in Europe.

Then 20 years later, just before Mickey Mouse was about to enter the public domain (2004), Congress was spurred into action again. This time, Congress extended the rights 20 more years for individuals (life + 70) … and modified corporate copyright life to 95 years after publication or 120 years after creation. This law, like the 1976 one, was retroactive. Material created since 1923 that was still copyrighted in 1998 will not enter the public domain before 2019, unless the copyright owner releases it. That’s 11 years. Any bets on another extension?

This article first appeared at WiredPen.

Related Posts

• December 13, 2010 -- The web is public domain? Mmmm, nope. (0)
• February 6, 2010 -- Questionable Copyright Claim On White House Photos (3)
• January 30, 2009 -- Lawrence Lessig and the Colbert Remix (2)
• October 17, 2008 -- Copyright Czar is now watching – hang on to your laptop (0)