Avoiding
Copyright Infringement
The
information in this article is provided as a rough guideline
and based on US information but very relative here in
New Zealand as well. However, I am not a lawyer and this
article does not constitute legal advice. It is advisable
to seek appropriate legal counsel in copyright matters.
It's
not uncommon for authors to quote other authors, especially
in non-fiction works. There are times when we want to
bring in someone else's work to help build our own arguments,
lend weight to a statement of fact, or collect or refute
the conventional wisdom on a topic. At other times, we
may want a certain image for our book cover, or to show
a clip from a TV program to illustrate a point. Whatever
the reason, the question soon becomes whether we have
permission to use these materials or not.
Outright plagiarism –- that is, using another's work and
trying to pass it off as your own –- is obviously illegal.
But what happens when you want to legitimately reference
someone else's work. What do you need to know, and when
do you need to seek explicit permission?
What
Is Protected By Copyright? Copyright protection applies
to a wide range of works including: -- Written works such
as books, pamphlets, articles, reports, screenplays and
scripts
--
Artistic works such as photographs, illustrations, paintings
and maps
-- Musical pieces including both the music and any accompanying
lyrics
-- Video and sound recordings
-- Dramatic performances such as live plays, and
-- Some portions of computer programs.
This
is not a comprehensive list but you get the idea. Just
about any creation in a fixed form is protected by copyright.
Accordingly, almost anytime you wish to quote, reference
or reproduce someone else's creation in your own work,
you will need to secure permission from the copyright
holder. For example, you would need to seek permission
to:
-- Quote another author in your book
-- Use an original piece of music on your CD
-- Include a screen capture from a piece of software in
your technical manual
-- Include a map in your special report, or
-- Use a photograph on your website.
There
are some exceptions, of course.
Works
In The Public Domain You don't need to secure permission
for items that are in the public domain. In the U.S.,
any work produced before 1923 lies in the public domain.
This means, for example, that you don't need permission
to quote Shakespeare or use an image of the Mona Lisa.
But be careful! Even here, the rules can get tricky. For
example, if you are quoting from Tolstoy's novel War &
Peace in English, you are actually quoting the translation
and not the original. The translation, if created after
1923, is likely copyrighted. Edited versions of public
domain manuscripts may also be copyrighted.
When
using images of public domain artwork, be sure the photograph
or drawing of the artwork is also in the public domain.
The original painting might be free for you to use but
a particular image of it may not be. Not sure if a work
is in the public domain? In America, for a fee, the United
States Copyright Office (www.copyright.gov)
will do a complete copyright search for you.
Fair
Use Fair use provides some allowances for use
of copyrighted material under certain circumstances. (In
Canada, this is called fair dealing. The underlying principle
is the same but the legislation is different.) Information
producers should be very cautious about using fair use
as a justification for incorporating copyrighted material
without permission. The legal parameters of fair use are
vague and open to wide extremes of interpretation in court.
For example, one of the criteria the courts will consider
in determining fair use is the amount of the copyrighted
work that was used in relation to the size of the work
as a whole. Substantiality, or the importance of the quoted
piece, is also looked at. Many writers therefore think
that if they only quote a sentence or two from an entire
book they are safe. They may very well be -- but they
could just as easily not be. In 2000, self-help expert
Anthony Robbins was successfully sued for more than US$650,000
for using a couple of two-word phrases from another author
without attribution or permission. If all you want is
to quote a line or two from someone else's book, AND you
give them full credit when you quote them, you will not
likely run into troubles with copyright infringement.
However, this is not a legal guideline. When in doubt,
err on the side of caution. It can't ever hurt to get
permission but it could definitely hurt you not to have
it.
Wishing
you all a very Merry Christmas and we look forward to
a prosperous 2007!!
(Please
note that WWW Design will be closed from 19-27 December
2006)
Leanne
Taylor
:: www.wwwdesign.co.nz
::
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