A Graphic Mistake Photos & Copyright

>>Speaker Name: Clare Membiela:
Okay, it’s about 1030. So we’re going to go ahead and get started. Today we’re here to talk about a —
we’re going to talk about copyright. And particularly, we’re going to
focus on images and photographs that libraries use for things like promotion. First, I’m going to introduce myself. I am the library law consultant here at the
Library of Michigan and a lot of you know me. I have a law degree and a MLS. And I am here, excuse me for just a minute. I’m making sure my slides go forward. And I am going to — let’s see
if I can get my slides go — Sorry, we’re having a little bit of a. Right. Just going to do it the hard
way here just so we can get going. Okay, this is my disclaimer. And my disclaimer is, well, now
it’s now it seems to be working. My, oh sorry. Having a technical issue here. I’m going to ask everybody’s patience here for
one second while I take care of this problem. So I apologize. This should only take a minute. We had some computer issues yesterday. And everybody’s computers are kind of
acting a little bit weird this morning. So I am not sure what’s going on. I’m going to mute myself and I will
be right back with you in a second. I apologize for the problem. My computer doesn’t seem to
want to properly advance. And I will — I’m going to
try one more time here. Oh, now it’s working. Okay. Let’s just keep going. Okay, so this is my disclaimer. I, my job at the Library of Michigan
is to provide legal information and to provide some context and assistance
to Library so they can understand when they have a legal issue
or a legal question, so they can understand what
they’re dealing with. My job is not to provide legal advice. If you need legal advice or you’re involved in
some problem, you need to contact your attorney. So if you get a letter from a license
holder, telling you that you’re in violation, you need to contact your attorney. Okay. So let’s start off briefly
talk a little bit about copyright. So the images on here, all of which are
either public domain or government images, are kind of like a little walkthrough
of the history of us copyright. So the first copyright statute came out in
1710 in the UK, and that was the first concept of this idea that anybody who comes up
with a creative work deserves to have that work protected and not
copied and not taken. After that, it was incorporated
within our Constitution. So you can see that was about 70 years later. The founders incorporated that
idea in within the Constitution. And the idea is that by protecting
Copyright, by protecting someone’s work, you are create you’re promoting
the creative arts. So in other words, if you protect an
artist’s work then artists are going to be more likely to create work. Because actually, as we’re seeing right now,
if you have an environment where material or people’s works can just be taken
and they can’t earn money off of it, then a lot of artists are going
to not create for the public. So the idea is that to protect the
creative arts, and the same goes with patent to protect innovation, and to encourage that, because that is what partially creates a whole
well rounded society, the government is going to protect the works that are created and
allow the artists to benefit from those works and be the primary benefactor of those works. Then, in 1789, is when if you
see 1787 was the constitution, 1789 is the first time to
set of statutes came out. That’s when the first Congress
was essentially convened. And that’s when they brought out laws. So the Copyright Act, its purpose was to kind
of put into place the rules and the procedures that would allow the law to
comport with the constitution. That would actually be the
functioning ability for people to retain over their own retain ownership
over their own copyright. Now, as this picture suggests,
copyright law is not very clear. It’s really kind of tangled. It sounds clear, but when
you really get down to it, it’s actually kind of cloudy and complicated. Then, there were in 1886, if you move on to the
next symbol, there was the Berne Convention, which was an international convention. Now, I’m not going to get
into a lot of detail on this, but European copyright is a little
different from US copyright, even just from the basis of what it believes. But overall, the one thing that the countries
agree on is that an artist’s ownership in their works deserves to be protected. The main difference has to
do with length of copyright. And so, in 19, in in 1886, several countries got
together and agreed on this Berne Convention, which would enable copyrights
to be protected globally. So that even though if your copyright before
that if your copyright is were protected in the US, it might not necessarily
be protected in Great Britain. 1988 the US finally joined it. The reason why the US didn’t join it before
then, was because of one of these differences between the US and the International copyright. And before 1988, the US required that every
piece of work that was copyrighted had to have the copyright symbol on it. It is called the formality. So people who created works had to go
through the formalities of making sure that certain symbols and certain writings
were actually imprinted on their works, because if they didn’t, then
the assumption would be that it was public domain, that
it was not under copyright. So if you created something, if you wrote a
book or a book of poems, or you drew a picture, if you did not put that little copyright symbol
with a date, and you know the name of the person who had the copyright or the author,
then the government could say, well, you didn’t copyright it, so anybody can
use it, and anybody can take from it. Were in Europe, it was believed
that just by creating it, the person who created it
automatically had copyright. So that was kind of a big bone of contention
for several years between the US and Europe. So in 1988, US finally came around
and joined the Berne Convention. And so now in the US, it does not have to have
a symbol on it in order to be copy written. However, if something was created, prior
to the 1988 joining in the Berne Act, it did not comport with the
formalities then it is possible that it might not be properly
protected by copyright. That’s kind of another story we’re
not going to get into right now. And then in 1998, the next big copyright
thing was the copyright term Extension Act, which you may know as some people
called it, the Mickey Mouse law, some but some people called it the
Sonny Bono [inaudible] Extension Act. And what it what it did was
it lengthen the amount of time that a copyright holder could have for
their total protection of copyright. So they have their initial protection, and
then they can renew it for some years more, and in total, turns out to
be life plus 70 years. So that’s just kind of a basic
background of what we’re talking about. Let’s talk briefly about what
copyright does in general. So we talked about you know, copyright protects
the rights of authors who create works. It permits them to perform,
distribute and profit from their works. In fact, it gives them a
monopoly over those works for that period of time that they own that work. It covers only works of authorship fixed
in any tangible medium of expression. Now you can see that the law actually
anticipated improvements in technology. So it says now known or later developed. So in other words, if you just kind of have an
idea, you can’t copyright an idea or a concept. You can only copyright something after it’s
been produced, after it’s been written, after it’s been painted after
it’s been photographed. And then again, authorship includes a wide
range of creative endeavors, including, as you might know, pictorial,
graphic, sculptural. Now art, so painted fine art, you know if
you’re Warhol or you’re a Bosco or, you know, you’re one of you know, an artist
or you’re anyone who paints, then fine arts are actually covered under
a different section of the Copyright Act. But if you’re taking, if you’re an
illustrator, or you are snapping photographs, it would be covered under
this section of copyright that we’re talking about,
which is 106 17 US 106. So title 17 of the United States
Code is the Copyright Act. So when we look at photos
and graphics, nowadays, most of us look at the Internet, right? And, you know, all photos and graphics
now after the Berne Convention, any photo and graphic is
protected by copyright right now. So, photographs and graphics, actually, the copyright belongs to
the person who created them. Now there are some instances where the rights
might lie with say a corporation or, you know, whoever produces the item that the photo is on. But most of the time, the image the photo,
if you have, take a picture off the internet, the person who owns that is the person
who took it, or the person who drew it. So if you have a children’s book
and you look at the illustrations, the illustrations are owned by the artist. Even some quite famous ones like the Harry
Potter illustrations are actually owned by the — they don’t own
the rights to the character, but they own the rights to those illustrations. So photos and graphics are protect — don’t assume, never assume that
something is not protected. So whether it’s on Facebook, whether it’s on
Instagram, whether it’s on Tumblr, social media, or any website, always assume that the
graphics are protected by copyright. Now, you know, you may think to yourself, Well,
you know, if I’m on Tumblr, or I’m on Instagram or I’m on Facebook, and I see a picture,
well, that person put that picture there. So if I’m looking at an Instagram
of an artist’s own work, that person put that picture out in the public. So it must be okay for me to use. Well, it’s not. You may think that, you know, you go to
a museum, which very often is, you know, several of them are open to the public,
like the Smithsonian, you can just walk in. And you can snap a picture
of artwork on the wall. But that doesn’t mean you own that artwork. That doesn’t mean now you have
the rights to that artwork. You have the rights to your, your photograph. If your photograph, you know, treats
that artwork in an innovative way, or it has particular lighting, or its particular
compelling portrait of that photograph. you own that photograph and
the rights to that photograph but you do not own the item
that you’re taking a picture of. So it’s very important note that you know, you,
you know, you can’t just use something just because you see it on the internet. Now, again, even if you do Control, Alt,
you know, Alt, Print Screen, you say, well I’m just taking a picture
of this picture, so I’m okay. Unfortunately, it doesn’t quite work that way. In order for something to be
protected, it has to have — it has to have some kind
of creative aspect to it. So just taking a Control, Alt,
Delete is not really going to mean that you now have an individual
work under copyright. The other problem to understand and why
this is becoming such a big deal right now, because libraries for years have been you
know, for decades have been doing this. And it’s never been that big of a deal. You know, and you see, you know, copyrighted
characters on the walls of libraries. And you know, and no one’s ever
really paid a whole lot of attention. There may have been some kind of, you know,
once in a while you hear something, but overall, it’s not really been getting the
attention that it’s getting now. And partly that’s because more than ever after
the onset of social media and the internet, it’s become so easy to steal designs
and steal you know, artwork that artists and photographers are really having a problem. Nowadays, the only way to get
noticed in the industry is to have an Instagram or social media presence. My daughter is going to college to be
an illustrator and it’s the only way to really get jobs is to create this portfolio
on social media because that’s what the studios, and that’s what the representatives
of publishers and stuff look at. But, you know, if you put your
artwork there, people take it. And you know, people take artwork and they take
it to Red Bubble, or they take it to Cafe Press, and they create t-shirts, but they don’t
even own the graphic they’re doing it with. So a lot of these, you know,
illustrators and graphic designers and photographers are having a
real, it’s a real economic issue. And particularly photographers, you know, that there’s actually fewer people becoming
photographers, because it’s just such a hassle. And some people on Instagram, there’s actually
been both My husband and my daughter are artists and they follow a lot of people, you know,
in social media and email and stuff and a lot of artists are talking about the problem
is so bad that even some artists can afford to hire the people they need
to get the protection. So it’s really a rampant problem. So you really have to look at it, like every
picture that you’re using without permission, you’re actually taking money from somebody. And yeah, sometimes that might be a big
corporation and maybe, you know, you don’t care. But sometimes that could be just a person,
you know, who’s just starting out and trying to earn a living and, you know,
that is a kind of a problem. So let’s address some copyright myths. So you know, a lot of people think and
again, this has been happening for decades. I’m, I’ve been guilty of this. I think most of the people on this webinar
probably been guilty of this that you know, you find a compelling picture, or you’re
doing you know, your Star Wars or your or your Harry Potter event and you just take
those images and you think you know what, it’s okay because it’s educational use. You know, I’m in a library, we’re educational. It’s okay, because we’re a government entity. You know, we’re obviously not using
it for any kind of bad commercial use. It’s okay because we’re not making money on it. It’s okay because we’re nonprofit. You know, what we’re helping kids to read. You know, this is for literacy, this,
everybody agrees that’s a good thing. So it’s not going to be a problem. Nobody’s going to care. We’re too little, you know, nobody’s really
going to even notice us because we’re such a small little library,
nobody’s going to care. It’s okay because it’s a viral photo. Everybody is taking copies of
it and putting it everywhere. So it’s okay. It’s okay, because I found
it on a free government site, and isn’t everything on a government site free? So these are all actually not true. And we’re going to kind of
walk through some of those. So the biggest myth with using photographs
that libraries have is that it is educational. So the biggest myth is that
is this educational fair use that because a library is an educational
entity that, you know, we can use it for free. And that’s really not necessarily the case. So while section 106 does indicate,
and there are some additional sections of the Copyright Act, that does say that you
there are certain approved uses and exemptions from copyright for educational use, most
of these exemptions have to do with face to face teaching in a classroom or
online distance educational teaching. So it doesn’t, you know, something
like what we’re doing right now, okay, so one or I have one or two images here that
are kind of in a gray area as far as fair use, but because this is a webinar, it’s an educational class, I
probably can get away with it. But whenever you see educational institution
in the Copyright Act, which is where most of these exemptions come from, it’s
talking about government sponsored or government run accredited institutions. Like it uses that word accredited, which means
it is specifically talking about K through 12 and secondary, and colleges and universities. It is not talking about libraries. So if you’re a library, if
you’re a school library, well, then you’re you know, pretty much, okay. If you are a regular public library,
you can’t hide under that educational. There’s really no such thing
as educational fair use because even the educational
exemptions have limits. Okay, so the educational exemptions, like I
said, are mainly surrounded about classroom use. But even that has limits. You know, a professor can show a
movie in class, or a professor can, you know, photocopy an article in class. But if that Professor posts that
article on, say, a Blackboard, or some other content management software, they only can do that for one
semester, under the under the exemption. They can’t continue to do it. So if they have the same
curriculum every semester, after the first semester,
they have to get permission. So even schools have to get permission
to use copyrighted materials. So you know, you have to be very
careful when you think, Oh, you know, I can use this because it’s educational,
because most of the time, it’s not. So a lot of times when we talk about fair
use, and I’m going to go that in a minute, courts do tend to give a lot of
weight to non-commercial use. Okay. So the reality is that if as public
libraries as government as non, you know, commercial, and as you know, places
that do have an educational component, any court would look favorably on those facts. And those do tend to weigh pretty heavily. But other things that they look at, are you
from a very big library or a small library? Are you from a big university
library that obviously has the funds that they could have paid for permission? Are you a very small library
that maybe couldn’t? They also look at what are you using
and how much of it are you using? So there’s multiple factors that go into this,
even though non-commercial use and, you know, a component of education does weigh
heavy, it’s not the whole story. So you have to be careful about that. So let’s say you have something
you find a picture that you want to use, what are your options? Well, your first option is that is to look at or look for public domain
un-copyrighted or orphan works. Now I’m going to get back to orphan works in
a minute because that’s also a little tricky. So public domain and un-copyrighted works, your
best bet is simply using public domain works. That’s going to be the easiest, clearest option. Un-copyrighted works are a
little bit more complicated, because trying to make sure they’re
un-copyrighted can be a little cumbersome. But if you have a work that you’re not
sure about, okay, that you have something that you just can’t figure out whether it’s been
copyrighted, okay, the standard of the law is to use a reasonable effort to locate. So what that pretty much means is you want to
have a documented trail that you tried to find. So whether you’re running
searches at the copyright office, or whether you call the copyright office, or
whether you talk to your attorney, or you know, whatever you do to try to locate those,
you know, whether or not it’s copyright and who owns it, hold on to that,
because you might have to prove that you did conduct a reasonable effort
to see whether or not it was copyrighted. If it’s from pre-1988, and you
know there’s no formalities on it. There’s no copyright symbol on it, then
it’s possible that it’s un-copyrighted. And it’s un-copyrightable. Like it’s not, it’s not covered. public domain right now is
anything that was created pre-1924. Now, because of the Copyright Term
Extension Act, a lot of things as of 2019, things as of 1924 are now available. But, for example, Mickey Mouse doesn’t
go into public domain until 2024. So you have to kind of do that calculation and
I actually have at the end of this presentation, there’s a lot of links for information and
assistance and one of them is a very good chart on terms of copyright that you can use to calculate whether the item you’re
holding is still in copyright term or whether it’s in public domain. Your other option is to, and, and along
with public domain and un-copyrighted, there’s things like Creative Commons. There’s several really good websites that
has graphics and pictures that the people who created it specifically elected
not to enforce their copyright or not to take advantage of their copyright. And I have a list of those
also within this presentation. And you can just search those sites
and then you don’t have to worry. Some of those do require retribution,
which means you have to have a little line under the photograph that credits
the person, but you can use it. No problem. And there is a wide variety of sites
and a wide variety of, of options. So that you know that and public
domain are probably your best bet. There are some sites that also
you can search public domain. There’s also a site that has
just government images on it. And I’ve links to all of
those in this presentation. Your other option is to get permission. So if you have something that
you just feel is very important. You know, you’re doing a Harry Potter day, and you want to make sure you can use some Harry
Potter images and you know, from that world. Well, you know, maybe you have a team group that
wants to do a skit that deals with Harry Potter and there’s some issues there
too, as far as like parody, but we’re not going to go into those right now. So let’s just, you know, assume that you really
have something you want to get permission for. You can get permission. You know, most license holders
and copyright owners and authors and publishers have fairly
well publicized contact pages for obtaining licensing and permission. I used to do this all the time when I worked
in academia because of I worked with professors that wrote, you know, chapters of books
and they had to get permission for things like musical lyrics and quotes
and all kinds of things. And it’s really easier than you
might think, to get permission. It just takes some legwork. So for example, I included the website
here for Disney studio licensing.com, and in the upper right hand
corner, I have a copy of their form. And it’s just the form that you fill out. You know, you want to make sure you allow plenty
of time because it can take a little while. You want to make sure that
within it you tell them that this is a public library
or a small public library. We serve this many people. It’s for a team, you know, ready
to read or a team reading group. You know, make sure that you tell them,
you know, all the everything that you can to show them, look, we’re not
going to be making money off this. We’re not going to be using your
characters in an inappropriate way. I would suggest you send examples of how
you’re going to use those characters. Because that’s another part of the
production of copyright and licensing. Because that’s some of the major reasons why
Disney and Warner Brothers and they go so hard after people who are, you know, you
know, smaller entities that are using like public libraries, that are using their
illustrations is because they want to make sure that the illustrations don’t get used
in a way that might harm their trademark or harm their the image of their character. The other option is you can
go through the Fair Use steps. So let’s talk a minute about fair use. So Fair Use first appeared in
the current Copyright Act, okay, which is the 1976 Copyright Act, which
has gotten amended multiple times. Before that there really wasn’t
this concept of fair use. It came into being because what, what Congress
did was they took several case opinions that, you know, where people had been sued for
infringement, and the courts determined, you know, what, this is an infringement
and they came up with this idea of fair use using these tests and these
elements that came out through court cases. So it’s kind of a codification
of what was the common law. And the common law is pretty
much what opinions and courts. So, you know, the purpose of fair
use is to allow people to do things like criticize or parody copyrighted work. It’s also, you know, to kind of
encourage the use of creative works. But it’s kind of a very, that a strict balancing
act, right, because if you let people get away with too much, then it could affect the the
inspiration of people to create creative works, and that’s really what copyright
was designed to do. So, fair use is very squishy
to use a technical term. It really is it sometimes it’s very obvious. And sometimes it’s very murky
and hard to figure out. The problem is you don’t really know you’re
right in how you figured it out until after you’ve done it, and you
either get sued or you don’t. So it’s, like I said, it’s
one of these leap of faith. If you really believe that, you know, and you
feel you have a strong argument for fair use, then I would document it, you know. I would go through the steps I’m
going to talk to you about right now. Make sure you document why you think
this is fair use and hold on to that in case you get you get pinged. And the more that you’re going
to put the use that you are, the more that the graphics you use, okay? So any graphic that you want to borrow or you
want to use, the more that you take that graphic and you put it out in the public, on
your website, on your social media. The more you do that, the higher the
possibility is that you’re going to get caught. So you want to make absolutely sure
that you have all your ducks in a row and that you have a very firm case
for fair use before you do that. So, one example of fair use, and actually one
of the early ones here in the US, one of the, like ones that a lot is used a lot, as an
example is the Betamax case, which was the case that actually made it possible for us to use
video cassette recorders, DVRs, and the like. Because it the court said that this idea
of time shifting of television shows of recording a television show for
personal use later was fair use. And obviously that was something
that the production companies and the television networks did not like at all. But the court said no, if you’re just time
shifting, you’re not doing it because you want to have it you know, display it to the public. You’re just doing it for your own
personal use, then that’s fair use. You’re not cheating anybody for that. So here is the four part test or framework that
the Congress put in place to determine fair use. And this, this applies whether
you’re copying a chapter of a book, or whether you’re whether
you’re borrowing a photograph or a design, you know an illustration. So or Incidentally, if you are considering
reading story hour on the internet, through YouTube or something
this would also apply. So 17 US Code U107, which
is the Fair Use statute. The four steps is first, it looks at
the purpose and character of the use, including whether the use is of a commercial
nature or for nonprofit educational purposes. It looks at the nature of the copyrighted work. In other words, whether it’s a, whether it’s
a fiction or nonfiction, whether it’s fact or whether it’s, you know,
a truly creative work. It looks at how much you use
in relation to the work itself. So if you’re copying one chapter out of a
50 chapter book, you have a stronger case for fair use, than if your check — then if you are copying one chapter
out of a three chapter book. It’s going to look at the effect of
the use upon the potential market. For example, I think a very good rule of thumb
is that if your using this is taking money out of the pocket of the copyright holder,
then you want to give yourself pause. So if you’re putting it on a T shirt, if
you’re selling anything with it on it, if you are at all fiscally benefiting from
the us of this character or of this design, then you want to really think
very carefully about it. And that’s one of the reasons why, for
example, professors who were writing books, were very careful to get permission
because they’re making money. They’re earning money on this book. The statute specifically states that if it’s for
criticism, comment, news reporting or teaching, scholarship or research, that’s not infringing. But again, you know, you have to be very careful
of the use of those words and what they mean. Okay, so teaching has a very specific
meaning to this statute, right? It’s face to face, or it’s, you know, digital,
so even though you could say, well, you know, a program is teaching, have
to be careful it might be in it might not be scholarship, or research. So if you’re writing an article, that
you’re not obviously going to make money on or if you’re conducting research. So if you’re making a photocopy of an
article for you know, to research something to write an article, then
that’s considered fair use. Okay, so let’s walk through each one of these. And we’re not going to go
through the whole slide. I highlighted points that are kind of important. So first of all, we’re going to talk
about purpose and character of use, including of commercial nature, or
for nonprofit educational purposes. So these are actual quotes from cases and
from the Copyright Office to give you an idea of how actually this works in real life. So the Copyright Office discusses fair use,
and it says that the courts balance the purpose and character of these against other factors. So, purpose and character of the use is one
it is, you know, it’s it looks at all four of these factors and it balances some a
little more heavily than others, okay. So purpose and character is is fairly
heavily looked at, because this is, you know, part of that commercial nature idea
or the non-profit educational idea. This step also looks at what
they call transformative uses. For example, what it means by
transformative is, let’s say that you want to use a particular illustration
of Harry Potter. If you take that illustration and you’re
just going to blow it up into a poster and you’re not going to change it in any
way, or include it as part of anything else, then that’s not very transformative. If you’re going to take it and you’re going
to incorporate it into maybe a collage that’s in a brochure for your, for your program, or
you’re going to incorporate it into, you know, maybe you’re going to do like a standee. And you’re going to, you
know, have kids take pictures. And, you know, you know, there could be
multiple creative uses that you’re going to make of this particular illustration. So the more creative that and the farther
away it is from its basic beginnings, then the courts look at that more favorably, because you’re not just taking
it just to reproduce it. You’re actually using it
as part of something else. So the second quote there, is something
that I think is pretty important. A challenge to a non-commercial
use of copyright requires proof that either the particular use is harmful,
or that it should become widespread, it will adversely affect the potential
market for the copyrighted work. So what this is saying that
someone who, you know, the courts strongly favor
non-commercial use for fair use. And, and it when it’s an also in, you know,
concert with other things of the four factors, but if you’re having non-commercial
use, that’s a big strike in your favor. Not the only strike, but it’s a big, big plus. So this is saying that anybody who wanted
to contest that would have to prove that either you are using this
image in a very harmful way. You know, you, you don’t want to take Mickey
Mouse and use it in any kind of disgusting or or, you know sexually explicit way. You’re not using it in any way that’s going
to mar the reputation of that character, or how that character is seen by the public. And also, if that photo should become viral,
you know, if, say you were to, you know, start spreading it, that it’s
going to cause either economic or reputational harm to the entity that owns it. So that’s one of the arguments
against non-commercial use being fair. So there’s just some things to think about
when you’re doing your fair use analysis. If you look at you say, look, I’m just going to
put this on a bookmark, or I just want to make, you know, I want to make wizard hats and
I want to put you know, Harry on them. Then, you know, that is like, is fairly
transformative, that’s somewhat transformative. And you know, obviously, it’s not going
to cause any, you know, of those problems. It’s not going to negatively
affect the character. As long as you don’t start selling them,
you know, you’re probably not going to have a get widespread enough,
it’s going to cause a problem. So, you know, this whole page essentially is
giving, you know, gives some extra information for you to kind of evaluate your
whether this first element of fair use. So transformative use, non-commercial
accounts, you know, does really help you. You want to look to see if anybody can refute that non-commercial use through
the way you use it. You don’t want to automatically
assume because its fair use, you don’t have to go walk
through this, this analysis. And you want to make sure that
you know, you want to be careful that you don’t profit from the use. So that last quote is you know, whether the
user stands to profit from the exploitation. So, you know, and profit, you
want to make sure that you know, you’re not making money off
of this nonprofit use. So the second step is nature
of the copyrighted work. So this really has to do with, you know,
is the is the use of this work going to deter creators from creating more work? Is it really going to kind of harm the whole
idea of artistic expression and creativity? And is it going to kind of go against
what copyright was created for? And what the courts look at here is the more
creative or imaginative the work that you want to use is, the harder they’re
going to look at it. So for example, if you are borrowing a list or you are borrowing a newspaper
article, then those are considered facts. So that is probably going to be less
scrutinized as far as fair use goes then the use of Harry Potter or the copying of, say, a
chapter out of a out of a work of fiction. So doesn’t mean it doesn’t mean you’re out. It doesn’t mean you can’t do it. It just means that, you know, this
is another thing you have to consider that if you’re using a creative work, you might
it might get scrutinized a little bit more. However, the courts also look at whether or not
you’re using it for a socially beneficial goal. So if you’re using a creative work, you
might think, well, that’s a bad thing. But if it’s for a socially beneficial
goal, which I think we could all agree, and most courts would agree,
literacy, and public libraries are, for the most part, a socially beneficial goal. So courts weigh the socially beneficial
goal analysis higher than the fact that it’s a creative versus factual piece. So again, if you’re doing it for a socially
beneficial goal, so if you’re, you know, it’s part of summer reading program, or it’s
part of another initiative that’s designed to get kids to read, and maybe not just a social
practice, like your program is not just strictly for social or just for fun, it has an
element of literacy, or some, you know, overall socially beneficial goal, then
again, that’s another point in your favor. Then we have amount and substantiality
of the portion in relation to the copyright work as a whole. So how much of the work are you using? Now when you’re dealing with pieces of
you know, graphic work or photograph? Obviously, most of the time,
you’re going to use the whole work. It’s difficult to break up a
photograph or a piece of art. So you could take an illustration from a
Harry Potter book and you could say, well, I’m only going to use Harry, I’m not
going to use any of the other characters in this particular illustration,
and that’s fine. So that would be less of the of the work. That’s not the entire work. But if Harry is the central character in that
particular photo, or that particular piece of art, than the fact that you only
took a portion might not matter, because it’s not just how much you
use, it’s the quality of what you use. So in other words, if you take a
chapter of a mystery novel, you may say, well, it’s only one chapter out of 10. So it’s not really that big a deal. But if you take the last chapter, where all
of the mystery is revealed, then arguably, you’re taking the most important chapter. And that could make all the difference. Because for a publisher, if the last chapter
gets out, then that could cause a problem with the selling of that book, even even if you
had the most socially beneficial goal in mind. So, you know, that’s that’s
kind of a two pronged thing. So you’re looking at how much of the
work and the quality of the work. Now again, that doesn’t mean
you can’t just not saying that you fail this particular prong
doesn’t necessarily mean you can’t do it. Again, it’s the mark in the con
field, as opposed to the pro field. Most of the time with photographs,
you’re just going to use the whole thing. So it’s really a question of and you
know, as far as quality goes, again, it’s really just a photograph is a photograph. So, you know, this, this particular problem
is kind of or this particular step is kind of difficult with photographs,
because you have to use the whole. So, it’s, it’s, you know, it’s, it’s not there’s
really not a whole lot you can do about that. It’s the other steps that you really
just have to kind of emphasize. Effect of use upon a potential market. So here It’s really about whether or
not your use is harming the market for this for this particular item. So again, you know, if you are taking the last
chapter of, you know, a mystery or for you know, when you hear that, in fact, just recently, one of the actors in the new Star Wars movie
had their scripts stolen from their house. So if someone steals that script, and then
releases it on the internet, you know, that arguably is not a fair use of that
script, because it could affect the market for that film, if everybody already
knows what’s going to happen. It’s also if you’re just taking a
again, an image of Harry Potter, and you’re incorporating it in your
materials for your programming, again, as long as the use is in keeping with the use of
that character and is in keeping with the image of that character that the owner has cultivated,
then, you know, and you’re not making money off of it, then chances are, it’s not
going to affect any kind of market now. You know, and again, this
can get very sticky, okay? So if you’re going to create t-shirts
out of it, that could be a problem, because someone buying your Harry Potter
t-shirt might not buy a Harry Potter t-shirt from a licensed person. So, you know, you have to be again, very careful
about where you use this and how you use it. Okay, so let’s talk about this in
context of a real library problem. Okay, and that might kind of
drive at home a little bit. And it looks like we still have time. So let’s say your library has a very
enthusiastic teen or tween group. Okay, so you’re going to have a Harry
Potter Palooza weekend at the library. You’ve got to have cosplay contests,
trivia games, wand making and all kinds of you know book readings
and your Teen Librarian wants to create engaging flyers and social media. So would fair use permit her to do that,
copy some illustrations from Harry Potter? So let’s take a moment to talk about copyright
vs trademark so quickly we just talked about copyright you know that that covers,
you know, creative works like books and art. Trademark is designed to cover symbols and
recognizable designs that identifies products and services from their particular source. In other words, trademarks are
specifically aligned with business, with a corporation and of corporations products. So, you know, Harry Potter is
trademarked as well as copyrighted. So you may have an illustration
of Harry Potter this copyrighted, but Harry Potter, the character is trademarked. So, you know, you may think, well, is it a
trademark problem or is a copyright problem? Well, if you’re using an
illustration, it’s a copyright problem. Okay. The trademark issue really
doesn’t have like a fair use equivalent. With trademark, a lot of the issue
over trademark infringement has to do with whether the item could be mistaken, whether
an item were pet that is used the trademark or is copying the trademark could be
mistaken for that actual trademark. So example, you know, the fake purses that you
can buy on the streets of major cities like, you know, the Fendi purses or the Gucci
purses or the Louis Vuitton purses. Those are problematic trademark infringements because people buy them either thinking they’re
the real thing or in lieu of the real thing. So that’s a problem. If you were to take Mickey Mouse and
put, put Mickey Mouse on, you know, a cup and sell those cups, that
could be a trademark problem, as well as possibly a copyright problem. But, if you were to take, you know Harry Potter
or Mickey Mouse and put it on a library brochure and specifically state that this is a
library program sponsored by the library, and you properly attribute it, then
it’s unlikely that you’re going to be in trademark infringement, because it’s
unlikely that the average person is going to mistake a library program
for something that’s been put on by Disney or by Warner Brothers. So but again, you know, in some instances,
you might have to be very careful. And again, a lot of those instances has
to do with items, putting things on cups or putting things on buttons or
putting things on t-shirts, okay? And that’s where I would
definitely talk to you return. You want to know the item that you want to use. In almost every instance, the artist or the
photographer is the one that owns the image. Okay, there could be some tricky things with
corporate images like licensed images, right, which we just talked about, the idea
of a trademark versus copyright. Permission to use the photo or the
illustration should come from that owner, so either the artist or the photographer. You want to be careful about
getting stuff off the internet because sometimes stuff off the internet,
particularly Twitter, and Facebook, and an Instagram is because the, the things
that you see, the illustrations might not in themselves be — they might be like fan art,
which means if you see a piece of you know, fan art, that’s again, someone who
just drew a picture of Mickey Mouse, but they’re just like you or I or they’re an
upcoming artist, but they don’t own the rights to draw Mickey Mouse or just doing it. You know, if you wanted to use that picture, you
would want to get permission from that artist, but again, be aware of the trademark
infringement you know, issue. For permissions, you start
with the source of the photo. So if you see a photo, on
Instagram, look at who posted it. Okay? You want to, you know,
look at the photo very carefully and see if there’s any attribution. You want to if you if you can’t find any
attribution, and you can’t find anything, and it’s not on a government site, and it’s
not on one of these sites that you know, like Creative Commons, I would not
use it if you can’t figure it out. If it has some kind of notation on the
bottom, that states who took the picture, or there’s some kind of context,
it’s part of an article or something, then contact that photographer
and usually a search to the internet will reveal the
photographer or search and social media, even photographs in newspapers
and magazines are copyrighted. To get permission, okay, let’s say
again, we’re looking at Harry Potter. With something like Harry Potter or Star Wars
or Mickey Mouse, unless you’re dealing with, say the illustrations that are in the books,
so you’re looking at a famous Illustrator. So like say Star Wars, you’re looking
at Ralph McQuarrie, or for Harry Potter, there’s a couple of artists who
did the US version of the books and the British versions of the books. If you are if you want to use those
illustrations or if you want to use say portions of pictures from the films, then
you want to go to those sources. So portions of the films
would be from Warner Brothers. If it has to do with the illustrations,
those are from those artists. So the British illustrations are from Jim K.
And you can even go straight to JK Rowling who she still owns part of Harry Potter. She doesn’t own everything still
but she still owns part of it. So you have a couple of options
here with Harry Potter. So where do you start? Well, like I said, a lot of it depends
on exactly where your photo came from or where your art came from. If it’s from the movies, you
want probably want to start with either JK Rowling or Warner Brothers. So you can just run a search. If you run a search of JK Rowling,
you come up with her webpage. On her webpage, it states her
management, her artistic management, you would go through the artistic management
and just shoot an email, ask for permission. They’re not the ones who should give it. They’ll refer you to the correct person to ask. You can contact the studio. Just like Disney, Warner Brothers has a
whole organized page for obtaining licensing. And you just fill out the form and you explain
who you are and what you want to use it for and send a sample if you
can, and you ask permission. Now they may come back and ask you for money. They may not. You can within your request, you can say,
you know we’re a small public library. We don’t have a lot of funds. And they may not. But you know it and you can be persistent. But you know, that’s how you would do it. And it does work. It just sometimes takes a few back and forths. So you want to allow yourself plenty of time. For book illustrations, you would go to the
artist and again, if you if you type in the name of the artist for Harry Potter,
again the British artist is Jim K, you come up with his and his wife’s website. And on that website, he mentions
who his artistic representation is, when you go to their website, which is this,
Allison Eldridge, and you go to her website, and she again, has a very organized section
that walks you through getting permission. So pretty much anybody who is a creative artist
or anybody who puts out materials that are of value that people might want to
use, there are ways to get permission. And it’s really not that difficult. It can take time, but it’s not that
difficult, and it may mean a charge. Now, when you talk about fine art,
like paintings like Andy Warhol, or photographs like Annie Leibowitz, that
permission, there are some different things with the copyright rules and fair use, but you
can, you know, also get permission from them, but that would go also you would
start with either Warhol’s estate. You would start with Leibovitz’s
page, and then you probably end up with a representation as well. So, let’s kind of walk through the
fair use of this particular problem. So as far as purpose and character of use,
we have, well, our program and the use of this image could encourage interest
in reading right because if people like the Harry Potter movies, they might be
interested in reading about Harry Potter. And if we make our program fun enough, and if we can make our programming materials
engaging enough, we might attract teens and tweens that don’t normally come to the
library, and we might ignite their interest in reading and therefore improve their reading,
which everybody agrees is a really noble goal. It helps. Using this would help the library, put
on a successful program and grow this program and would help libraries
encourage people to come. So both of those things are
socially beneficial purposes. It is a nonprofit use. We’re not going to benefit from this. We’re not going to sell t-shirts. We’re not going to charge admission. We’re not in any way going to gain
money from the use of this character. And the use would be as transformative
as we can make it in terms of we’re going to integrate this images into a custom design
and theme for our program and we’re going to use it like in a collage
with our marketing materials. The nature of the work. Well, it is a fiction work, but we are
going to try to make it transformative. However, it is definitely
a socially beneficial goal. So, you know, since it is socially beneficial,
the courts have probably would look less at the fact that it’s a work of fiction. The amount and substantiality of the portion,
well, we’re not using the whole franchise, you know, we’re just using Harry Potter
and maybe you know, a picture of Hogwarts or you know, but we are using
an entire illustration. So if we, you know, remember,
we’re looking work by work. You can’t say, Okay, well, I got, you know, I’m
going to use this Harry Potter illustration. So therefore, I can use all of Harry Potter. Nope. Each individual illustration
you want to use is going to have to go through a different fair use analysis,
or different permissioning process. So I’m just going to, you know, but I’m
going to use the whole picture, right? So that kind of might count against us, but
I’m going to incorporate it into another work, right, which again, could lessen
that, that mark against us. The effect of the use upon the potential
market for or value of the copyrighted work. Well, this actually could be
good for the potential market because we’re actually marketing Harry Potter. We’re encouraging teens to look at Harry Potter. We’re nurturing the love of Harry
Potter and the fandom of Harry Potter. So our goal is to actually
gain new fans for Harry Potter, which could actually improve the
market for the copyrighted work. So that’s actually a good thing. We want to inspire reading of the services. It’s unlikely to inhibit or
negatively affect the market. Again, unless you use an inappropriate
depiction or you use the depiction in an inappropriate way, which we
are not, that’s not the plan here. I would probably limit recording and posting. I would probably not in order to
better secure my fair use argument, I would not put it on social media. If anything I put on social media
would probably be a PDF of my brochure. It would make it more difficult for
anyone to capture the image from the PDF. And I would use whatever technological
means I had at my disposal to prevent people from being able to lift the
image from my brochure. So I would be very careful in how I, you know,
presented it on social media if I was going to. So what’s the result of our analysis? Well, it is very possibly unlikely fair use,
but and I have to be really clear about this. Fair use is a very squishy concept
and even if you absolutely sure, in your mind that it is fair
use, it is still possible that someone could send you
a cease and desist letter. The only time that you are absolutely safe is
if you’re using an image or a photo that is in public domain is on one of those
websites where there’s no claim of copyright, is a government photo, or you have a permission,
you have a license from the owner to use it. Everything else remains in a gray area,
even if you really think that it’s fair use because nobody’s going to give
you a fair use stamp of approval. Ultimately, fair use only decided
after the fact if you don’t get sued, right and even then, back
to you didn’t get sued. You can’t be sure that you know,
it’s because you were right. It could just be that nobody noticed. So if you’re unsure and if you’re dealing with a
very large project, okay, something that’s going to get a lot of attention, a
major, say a fundraising project, it’s going to be worth it to
confer with your attorney. Because it’s just it’s not
worth the embarrassment. It’s not worth the cost. Right now and I have an example
of this in one of my slides. I’m going to backtrack here for a minute. Right here in the upper right hand corner
where it says find in fight image stuff. So right now, one of the reasons
why we wanted to hold this webinar, and I have like a minute left is
because actually two minutes is because what is happening is, artists
and photographers are hiring companies that essentially what they do is they crawl
the internet and they look for unlicensed usage of photos and images, and even
smaller artists are doing this. If they find one, they take a snapshot of it. And then they contact you and they tell
you, we have proof that you used this, you used this photo without a license. And now you owe us a couple thousand
dollars or more depending on the use, and depending on how many times they found
it on the site over a certain period of time. So it’s thousands of dollars,
that libraries are being pinged. Once you get that letter,
there’s not a whole lot you can do about it unless you can absolutely
prove their use. You know, and, and it can get even
more expensive to prove that fair use because you have to go now into litigation. And so you know, that can cost
thousands of dollars with your attorney. So in the end, it just isn’t worth it. So, you know, it’s think very long and
hard about whether you want to take photos that you’re not sure about and that you’re
not getting permission for or licensed items. And if you’re going to use those
licensed items, do it very carefully and strategically, and follow the rules. But what about taking your own pictures? Well, the main thing here, you would own
those pictures so you can take those. You want to be careful about taking pictures
of people, and then putting them on — integrating them into some
kind of marketing thing. We all own our own likeness. And using someone’s likeness
without their permission to promote something can be problematic. So at programs you all know you a
lot of you already get permission. You don’t want to take pictures of minors
except from the back of their heads, especially if you’re going
to put them on social media, unless you have explicit permission
from their parents to do that. Government employees including library
employees are fair game for pictures if they’re conducting their work. So if you’re at the circ desk and someone comes
in and takes a picture of you, that is okay, whether with your permission or not. However, they you know, there are
entities coming in and conducting Fair Use of First Amendment audits where they’re just
coming in and demanding to take pictures. Libraries, as limited public forums can
limit where and how pictures are taken, but you can’t prevent them from
taking pictures altogether. So on here, I have some plenty
of image, free image sites. So all of these are sites that don’t cost
anything to use, and that have a lot of range of free really good quality pictures. Here’s some additional resources
on the legal aspects like on fair use, and on copyright in general. Here is some more and I thank you
very much we are about at 11:30 and I will be sending everybody
copies of this presentation. The video or the webinar, well the
recording will be posted to the library of Michigan’s website as
soon as it gets, you know, ADA compliance to put the content on the bottom. And that’s it. I hope everybody has a good holiday. Thanks for attending. I hope everybody has a good day
today at work, and take care. We’ll talk to you soon. We’ll talk to you next month. Thank you.

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