Common Ground by Edyta Jaworek

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common ground

Editorâ&#x20AC;&#x2122;s note

is a common isuue for visual artists, designers, musicians, shop owners, publishers, and pretty much everybody. This publication is to serve graphic designers in particular, and it is to clarify some issues regarding copyright, and highlight its general rules. Edyta Jaworek

TABLE OF CONTENTS 8

A code of conduct

Philosophy of Copyright.

10 Big myths about copyright explained

Hitler

Aiga

Fred Smeijer s

CODE of

c o n duct These are some general guidelines for conduct in the many disciplines that work with music or sound, with words, with drawings, diagrams and photography. All of these disciplines can be considered as design activities. So this code is addressed to designers, especially those of the digital generation. Why take the first step of making something? It must come from an urge to create. If you set to work merely to make a cynical copy, then you lose the basis of design.

A design is considered to be the outcome of a creative process. This

other company. Who decides whether something is in copyright or not?

outcome is considered to be an original. But often this is not really the case.

There are laws and precedents to which we agree to defer, and which may

The designed object is a compilation of a number of things, with contribu-

vary from country to country, continent to continent.They can be tracked down

tions made by others as well as by the designer. For example: a book about a

and read. It is helpful to bear in mind the claims and rights of the various

photographer. In order to claim a design, it should therefore always be

parties here. Design must be regarded as intellectual property. So Adrian

clear who is responsible for what. Or, if this is not possible or necessary,

Frutiger is the rightful creator and intellectual owner of the Univers design. But

you should be specific about your role in it. There is almost nothing that

the name ‘Univers’ may be established as a trade mark by some other party—for

is free of copyright. Be aware of the fact that everything has been cre-

example, Linotype. So nobody can name a new type design ‘Univers’ just like

ated by someone other than you. The excuse of “I found it on the Web” (as if

that, not even Frutiger himself. On the other hand, Linotype cannot change the

it was a gift from God) is not valid. When something is used frequently,

Univers desig—Frutiger’s intellectual property—without his permission.There

or is simply very old, this does not mean that it is in the public domain.

is a third party here: the user. Someone who acquires a license to use Univers

What is or is not ‘public domain’ is certainly not for you to decide. Usually,

can have nothing to do with the design or its name.The user’s rights are those

for everything that has been made by another person, even in another

described in the license agreement, nothing less and nothing more. So, in

discipline, money has to be paid, acknowledgements have to be given. It is good

general, users never own copyrighted material, but are only granted the right to

to realize that nothing is really free, not even your own snapshot taken in the museum–even though it was your fingers and your camera that made this photograph. You may put a print of your photo of the Holbein picture on the wall of your living room, but do not publish it in a book without permission

use it, as described in the license agreement.

You cannot just take and use anything from your own or somebody else’s hard disc, at least not without considering what the proper price for this will be.

of the museum that looks after it, and pays for its

Student designers, their teachers, and the people who run educational establishments, are no less exempt from these guidelines than are designers ‘in the real world’. These are clear and understandable rules,

preservation. Copying and borrowing are easier than before. This is not

but more than ever a designer or a design organization should also consider

bad by definition. Copying for study purposes is OK, but you can not label

the consequences of their activities for the client. My practice tells me that

such things as your original design, and you must give credit to the original

many clients want to be legally correct; they do not want to take any risks.

owner/creator. Adapting and using somebody’s else design work without

In fact they often want to be more correct in what they do than the freelance

any permission is unworthy of you, unprofessional, and will be bad publicity in

designers they hire. Design is not confined to printed products alone, and these

the long run. A situation might arise in which you have to slightly adapt

days the client’s office will be scattered with computers. So, for example, you

an existing design. This can be done only if the creator has given permission

(graphic designer) cannot ask me (type designer) to make a Windows version

for it, and if the owner of the design–the original customer who ordered the

of the typeface you used for Trans Ocean’s corporate identity, when they say

work or the present rightful owner–asks you to do the adaptation. If the origi-

they need a couple of ens with all the fonts and templates for their offices in

nal creator has not given or will not give permission, for whatever reason,

Brazil. The larger your client, the more important it is that the designers are

then it is better to stay away from this kind of muddled situation. You cannot

fully aware of the consequences of the steps the client wants to take with the

claim an adaptation as your design. Worse than this is to claim someone

new design. You might design wonderful forms and nice brochures, but what if

else’s work as yours however much you might adapt it and then give it

these are to be downloaded by anyone from the client’s server—to save printing

away for free, or sell it publicly. This is still called piracy and you might face

costs or just to be more accessible for anyone in the company who might need

legal consequences. When you leave a company and start your own design

copies? In such a situation, you cannot just take and use anything from your

business, you cannot take that company’s software and typefaces, or its stock

own or somebody else’s hard disc, at least not without considering what the

photography, just because they have already been paid for. You can share costs

proper price for this will be. The moral here: as a designer not only is it wise

with other designers in a small studio: the rent, a printer, a fax machine, and so

to consider what, how and from where you take your design ingredients, but

on. But you cannot share the costs of software and other copyrighted material:

it is equally important to be clear about the ways in which the design will be

just as a client of yours cannot — without asking you — sell your work to some

used by the clients themselves.

9 9

Philo Philosophy of Copyright

From Wikipedia, the free Encyclopedia

The philosophy of copyright might be said to include several philosophical issues which are fundamentally linked to copyright policy, and other jurisprudential problems that arise in legal systems’ interpretation and application of copyright law.

Probably the most profound and widely debated philosophical issue amongst scholars of copyright law, is its purpose. Some take the approach of looking for coherent justifications of established copyright systems, while others start with general ethical theories, such as utilitarianism and try to analyse policy through that lens. Another approach denies the meaningfulness of any ethical justification for existing copyright law, viewing it simply as a result (and perhaps an undesirable result) of political processes. Another widely debated issue is the relationship between copyrights and other forms of “intellectual property”, and material property.Most scholars of copyright agree that it can be called a kind of property, because it involves the exclusion of others from something. But there is disagreement about the extent to which that fact should allow the transportation of other beliefs and intuitions about material possessions. There are many other philosophical questions which arise in the jurisprudence of copyright. They include such problems as determining when one work is “derived” from another, or deciding when information has been placed in a “tangible” or “material” form.

osoph Justifications for copyright

Legal scholars often approach copyright in search of a coherent ethical justification for its existence and character. This approach may seem to be backwards — it might make more sense to start with an objective

and then examine the law against it — but it is widely practised. Thus, the normative or ethical theories that might naively be regarded as tests for copyright law to pass are often called `justifications’ of it. Justifications

for copyright can generally be approximated into two groups: deontological or consequentialist. Deontological

justifications for copyright seek to justify copyright as a matter of rights or duty, they seek to assert a justification for copyright (or intellectual property more generally) on the basis that it is morally correct to do

so. Contrariwise, consequentialist theories of copyright seek to justify or criticise copyright protection based

on the consequences of that protection, by asserting or providing evidence that the protection of copyright

produces some desirable effect. Examples of such theories include incentives theories that view intellectual property as a necessary way of incentivising the creation of new creative works.

Natural rights

Natural rights are linked to the logic of prop-

so strict as to require that it maximise some kind

Defenders of the present system of strong

erty. John Locke is often cited as an authority,

of `goodness’ in its outcome.

copyrights argue that it has been largely successful

although it is not clear that Locke actually viewed

in financing the creation and distribution of a

Some copyright scholars believe that, regard-

wide variety of works, especially those requiring

the basis of German copyright law. This position

less of contemporary advances in technology,

significant labor and capital. Moderate scholars

regards copyrightable works to be extensions

seem to support that view while recognizing the

of the author’s personality. The author is given

authors, sculptors, artists, musicians and others

need for exceptions and limitations, such as the

certain powers to control those works on account

can fund the creation of new works, and that

fair use doctrine. Notably, a substantial portion of

of his or her connection to them.

without a significant period of legal protection

the current U.S. Copyright Act (sections 107-120) is

of their future income, many valuable books and

devoted to such exceptions and limitations.

Economics

artworks would not be created.They argue that

Many economists believe that, in the absence of

the public interest is best served by repeated

Consequentialism in the US

intellectual property protections such as copy-

extension of copyright terms to encompass multiple

Consequentialism or instrumentalism is the legal

right and patents, various types of intangible

generations beyond the copyright holder’s life, as

foundation of copyright law in the United States.

assets would be under-produced, because there

this increases the present value of the copyright,

Article One of the United States Constitution

would be insufficient incentives for commercial

encouraging the creation for new works and making

authorizes Congress to “promote the Progress

organisations to produce them. From this per-

additional investments in older works (for example,

of Science and useful Arts, by securing for

spective, the objective of copyright law is primar-

the restoration of old movies) economically viable.

limited Times to Authors and Inventors the

ily to balance the public benefits that can arise

Authors’ heirs continue to profit if copyrights are

exclusive Right to their respective Writings

from the widespread circulation, use and reuse

enforced post-death and this provides a substantial

and Discoveries”.

of a copyright work with the need to provide

incentive for continued fresh work even as authors

protection, incentive and reward to the creator

age.The modern, market-driven copyright system

Many authors thought that this wording would

or owner of the copyright by granting a limited

provides authors with independent financing

actually require U.S. copyright laws to serve the

monopoly to exploit the copyright to that body

(through royalties). Without a feasible way to

purpose of `promoting the progress of science and

or individual.

recoup investments of creative time through

useful arts’.

Consequentialist theories

to produce and works would need to be motivated

In the US in 2003 controversial changes imple-

Consequentialist theories of copyright hold

by a desire for fame from already affluent authors

mented by the Sonny Bono Copyright Term

that we should have the laws that will produce

or those able to obtain patronage (with associated

Extension Act extending the length of copyright

the `best’ results for society. The most common

constraints on independence). Proponents of

under U.S. copyright law by 20 years were

consequentialist position is utilitarianism, which

challenged in the United States Supreme Court.

defines the `best’ situations to be those in which

creators to be able to build on published expression

However, the Court, in the case called Eldred

people are in total as happy or fulfilled as possible.

pointing to concepts such as Scènes à faire and

v. Ashcroft, held, inter alia, that in placing existing

Economists’ analyses of copyright tend to follow

Idea-expression divide. Copyright only protects

and future copyrights in parity in the CTEA,

this philosophical approach.

the artist’s expression of his/her work and not the

Congress acted within its authority and did not

A related class of theories is called instrumenta-

ideas, systems, or factual information conveyed

transgress Constitutional limitations. Other

lism; it holds that copyright law must exist for clear,

in it and thus artists are free to get ideas from

jurisdictions have enacted legislation to provide

coherent and necessary purposes, without being

copyrighted works.

for similar extensions of the copyright term.

ON WEDNESDAY JANUARY 18th, 2012, THE ENGLISHLANGUAgE WIKIPEDIA blacked out for 24 hours in protest to the internet regulation act

Opposition to copyright Critics of copyright as a whole fall broadly into two categories: those who assert that the very concept of copyright has never benefited society, and has always served simply to enrich a few at the expense of creativity; and those who assert that the existing copyright regime must be reformed to maintain its relevance in the new Information Society. The French droit d’auteur (“Rights of the Author”), which influenced the 1886 Berne Convention for the Protection of Literary and Artistic Works, must also be noted as a significant alternative to the usual Anglo-Saxon concept of copyright. Among the latter group, there are also some who continue to agree with copyright as a way to grant authors rights, but feel that it “outlives its welcome” by granting copyright for too long (e.g., far beyond the lifetime of the author), and is therefore of little direct benefit to him or her. The prolongation of copyright term is commonly attributed to effective corporate lobbying, based on a desire for the continuance of a profitable monopoly. In the US, this is often phrased as a conspiracy to ‘control the Mouse’ (meaning Mickey Mouse, a trademarked character controlled by the Disney Company whose early works would have moved into the public domain save for such an extension). To many critics, the general problem is that the current (international) copyright system undermines its own goal. The concepts of the public domain and the intrinsic freedom of information are necessary precepts for creators to be able to build on published expression. But these are gradually being eroded, as copyright terms are repeatedly extended to last beyond the lifetime of the audience which experienced and knows of the original work. Another effect of the repeated extension of copyright term is that current authors are shielded from competition from a wide public domain: by the time current works enter the public domain, they will have almost always have become obsolete. This reduces the risk of commoditisation of topical non-fiction. Out-of-copyright publishing, such as classic literature where margins are very low, generally offers only the best of each genre. Opposition to current copyright practice also relates to the non-observance of the principal requirement of the original Queen Anne Act, which specified that for a work to obtain copyright a copy had to be deposited in a library of record, so that unlimited copies could be made when the copyright expired. This was observed for many years but was successfully opposed by the motion picture industry, which refused to provide copies of their films, resulting in the loss of many early films. Civilization experiences a similar loss of ancient documents held in private collections until they rot. The recent success of free software projects such as GNU/Linux, Mozilla Firefox, and the Apache web server has demonstrated that quality works can be created even in the absence of a copyright-enforced monopoly rent. Instead, these products use copyright to enforce their license terms, which are designed to ensure the free nature of the work, rather than securing exclusive rights for the holder for monetary gain; such a license is called a copyleft, free software license, or open source license. Even in more traditional forms such as prose, some authors, such as Cory Doctorow, retain the copyright to their work but license it for free distribution (for example under a Creative Commons licenses). This has the benefit of providing a structured scheme under which authors can loosen some of the barriers that copyright imposes on others, allowing them to partially contribute the work to the community (in the form of giving a general grant on copying, reproduction, use or adaptation subject to certain conditions) while retaining other exclusive rights they hold in it. Copyright can also be used to stifle political criticism. For example, in the US the contents of talk shows and similar programs are covered by copyright. Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of a George W. Bush interview

from NBC’s Meet the Press. Although the fair use provisions of statute and common law may apply in such cases, the risks of loss in court should there be a lawsuit and pressure from insurance companies, who regard use of almost anything (e.g., three words forming the opening of a song) without permission as too risky, usually precludes use of materials without explicit permission, and so without a license fee. Copyright is also conceived by some to be an artificial barrier in that “expressions” could be freely exchanged between individuals and groups if there were no copyright or other legal restrictions preventing. Such people believe that as the state does not necessarily possess the moral authority to enact copyright laws, individuals may vary in their observation of such laws. Others disagree, believing that the copyright system, arising from provisions in the U.S. Constitution, has made and continues to make a valuable even essential contribution to the creation and dissemination of works. They also point out the social dangers inherent in the view that each individual is entitled to judge the “moral authority” of laws and to observe them or not according to individual judgments.

Modern challenges to copyright Copyright concepts are under challenge in the modern era, primarily from the increasing use of peer to peer filesharing. Major copyright holders, such as the major record labels and the movie industry, blame the ease of copying for their decreasing profits. Alternative explanations have been put forward, such as poor product content and excessive license charges. Public interest groups, major corporations and the like, are entering the public education system to teach the curriculum from their perspectives. The lobbying group for the MPAA provide a curriculum entitled What’s the Diff? taught by a group of volunteers called Junior Achievement. The Business Software Alliance also has their own curriculum program called Play it Cybersafe, which is distributed to school children through a magazine called The Weekly Reader. There seems to be a general consensus amongst assorted interests in the USA that there needs to be some curriculum materials for school-aged children about copyright issues. The American Librarian Association released their own curriculum for librarians that was distributed in the winter of 2004.

Notable Copyright Abolitionists

Notable Copyright Reformers

Notable Copyright Maximalists

David K. Levine

Rick Boucher

Rick Andrew

Stephan Kinsella

Jorge Cortell

Joseph Galambos

Robin Gross

Mary Bono

Lawrence Lessig

Jack Valenti

Eben Moglen

Bill Gates

Richard Stallman

Charles Gates

Siva Vaidhyanathan

Ryan C. Henry

13 13

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If it doesn’t have a copyright notice, it’s not copyrighted. This was true in the past, but today almost all major nations follow the Berne copyright convention. For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people’s works is that they are copyrighted and may not be copied unless you know otherwise. There are some old works that lost protection without notice, but frankly you should not risk it unless you know for sure. It is true that a notice strengthens the protection, by warning people, and by allowing one to get more and different damages, but it is not necessary. If it looks copyrighted, you should assume it is. This applies to pictures, too. You may not scan pictures from magazines and post them to the net, and if you come upon something unknown, you shouldn’t post that either. The correct form for a notice is:

“Copyright [dates] by [author/owner]”

You can use C in a circle © instead of “Copyright” but “(C)” has never been given legal force. The phrase “All Rights Reserved” used to be required in some nations but is now not legally needed most places. In some countries it may help preserve some of the “moral rights.”

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em dT

“Copyright law secures for the creator of a creative effort the exclusive right to control who can make copies, or make works derived from the original work. There are a lot of subtleties and international variations but that’s the gist of it. If you create something, and it fits the definition of a creative work, you get to control who can make copies of it and how they make copies, with some important exceptions.”

If it’s posted to Usenet it’s in the public domain.

If I don’t charge for it, it’s not a violation.

False. Nothing modern and creative is in the public domain anymore unless

False. Whether you charge can affect the damages awarded in court, but that’s

the owner explicitly puts it in the public domain(*). Explicitly, as in you have a

main difference under the law. It’s still a violation if you give it away - and

note from the author/owner saying, “I grant this to the public domain.” Those

there can still be serious damages if you hurt the commercial value of the

exact words or words very much like them.

property. There is a USA exception for personal copying of music, which is not a violation, though courts seem to have said that doesn’t include widescale

Some argue that posting to Usenet implicitly grants permission to everybody

anonymous personal copying as Napster. If the work has no commercial value,

to copy the posting within fairly wide bounds, and others feel that Usenet is

the violation is mostly technical and is unlikely to result in legal action. Fair use

an automatic store and forward network where all the thousands of copies

determinations (see below) do sometimes depend on the involvement of money.

made are done at the command (rather than the consent) of the poster. This is a matter of some debate, but even if the former is true (and in this writer’s

If you don’t defend your copyright you lose it — somebody has that

opinion we should all pray it isn’t true) it simply would suggest posters are

name copyrighted!

implicitly granting permissions “for the sort of copying one might expect when

False. Copyright is effectively never lost these days, unless explicitly given

one posts to Usenet” and in no case is this a placement of material into the

away. You also can’t “copyright a name” or anything short like that, such as

public domain. It is important to remember that when it comes to the law,

almost all titles. You may be thinking of trade marks, which apply to names,

computers never make copies, only human beings make copies. Computers

and can be weakened or lost if not defended.

are given commands, not permission. Only people can be given permission.

You generally trademark terms by using them to refer to your brand of a

Furthermore it is very difficult for an implicit licence to supersede an explicitly

generic type of product or service. Like a “Delta” airline. Delta Airlines “owns”

stated licence that the copier was aware of.

that word applied to air travel, even though it is also an ordinary word. Delta Hotels owns it when applied to hotels. (This case is fairly unusual as both are

Note that all this assumes the poster had the right to post the item in the

travel companies. Usually the industries are more distinct.) Neither owns the

first place. If the poster didn’t, then all the copies are pirated, and no implied

word on its own, only in context, and owning a mark doesn’t mean complete

licence or theoretical reduction of the copyright can take place.

control — see a more detailed treatise on this law for details.

(*) Copyrights can expire after a long time, putting something into the public

You can’t use somebody else’s trademark in a way that would steal the value of

domain, and there are some fine points on this issue regarding older copyright

the mark, or in a way that might make people confuse you with the real owner

law versions. However, none of this applies to material from the modern era,

of the mark, or which might allow you to profit from the mark’s good name. For

such as net postings.

example, if I were giving advice on music videos, I would be very wary of trying

Note that granting something to the public domain is a complete abandonment

parody the holder, as long as it’s clear you aren’t the holder.

to label my works with a name like “mtv.” :-) You can use marks to critcise or of all rights. You can’t make something “PD for non-commercial use.” If your work is PD, other people can even modify one byte and put their name on it. You might want to look into Creative Commons style licences if you want to grant wide rights.

15 15

“The first big issue involves defining what it is to make a creative work. The law requires that it exist in some tangible form — it can’t just be in your head or sailing through the ether(...). It has to be creative (...) it can’t just be factual data. But most things you write in English (or C++) are going to be creative works, plus anything you photograph or sculpt or draw or record. (...) Anything you write and post to USENET is almost certainly a creative, copyrightable work. Anything you post-process with a computer (like object code) is a derivative work, still copyrighted.”

My posting was just fair use!

Oh, so copyright violation isn’t a crime or anything?

The “fair use” exemption to (U.S.) copyright law was created to allow things

Actually, in the 90s in the USA commercial copyright violation involving more

such as commentary, parody, news reporting, research and education about

than 10 copies and value over $2500 was made a felony. So watch out. (At least

copyrighted works without the permission of the author. That’s vital so that

you get the protections of criminal law.) On the other hand, don’t think you’re

going to get people thrown in jail for posting your E-mail. The courts have much

the ability to appropriate other people’s. Intent, and damage to the commercial

better things to do. This is a fairly new, untested statute. In one case an operator

value of the work are important considerations. Are you reproducing an article

of a pirate BBS that didn’t charge was acquited because he didn’t charge, but

from the New York Times because you needed to in order to criticise the quality

congress amended the law to cover that.

of the New York Times, or because you couldn’t find time to write your own story, or didn’t want your readers to have to register at the New York Times web site? The first is probably fair use, the others probably aren’t.

They can’t get me, defendants in court have powerful rights! Copyright law is mostly civil law. If you violate copyright you would usually get sued, not be charged with a crime. “Innocent until proven guilty” is a principle

Fair use is generally a short excerpt and almost always attributed. (One should

of criminal law, as is “proof beyond a reasonable doubt.” Sorry, but in copyright

not use much more of the work than is needed to make the commentary.) It

suits, these don’t apply the same way or at all. It’s mostly which side and set

should not harm the commercial value of the work — in the sense of people

of evidence the judge or jury accepts or believes more, though the rules vary

no longer needing to buy it (which is another reason why reproduction of the

based on the type of infringement. In civil cases you can even be made to testify

entire work is a problem.) Famously, copying just 300 words from Gerald Ford’s

against your own interests.

200,000 word memoir for a magazine article was ruled as not fair use, in spite of it being very newsworthy, because it was the most important 300 words — why

It doesn’t hurt anybody — in fact it’s free advertising.

he pardoned Nixon.

It’s up to the owner to decide if they want the free ads or not. If they want them,

Note that most inclusion of text in followups and replies is for commentary, and

not, ask them. Usually that’s not too hard to do. Time past, ClariNet published

they will be sure to contact you. Don’t rationalize whether it hurts the owner or it doesn’t damage the commercial value of the original posting (if it has any) and

the very funny Dave Barry column to a large and appreciative Usenet audience

as such it is almost surely fair use. Fair use isn’t an exact doctrine, though. The

for a fee, but some person didn’t ask, and forwarded it to a mailing list, got

court decides if the right to comment overrides the copyright on an individual

caught, and the newspaper chain that employs Dave Barry pulled the column

basis in each case. There have been cases that go beyond the bounds of what I

from the net, pissing off everybody who enjoyed it. Even if you can’t think of

say above, but in general they don’t apply to the typical net misclaim of fair use.

how the author or owner gets hurt, think about the fact that piracy on the net

The “fair use” concept varies from country to country, and has different names

do more than read other people’s flamewars.

hurts everybody who wants a chance to use this wonderful new technology to (such as “fair dealing” in Canada) and other limitations outside the USA. Facts and ideas can’t be copyrighted, but their expression and structure can. You can always write the facts in your own words though.

“The ‘fair use’ doctrine (fair dealing in Canada and some other nations) in its purest form, lets a film critic include a clip from a film in her review to illustrate a point. Since negative critics would never get permission to do this, the fair use exemption exists to stop copyright law from being used to stifle criticism.”

They e-mailed me a copy, so I can post it.

So I can’t ever reproduce anything?

To have a copy is not to have the copyright. All the E-mail you write is copyrighted.

Myth #11 (I didn’t want to change the now-famous title of this article) is actually

However, E-mail is not, unless previously agreed, secret. So you can certainly

one sometimes generated in response to this list of 10 myths. No, copyright isn’t

report on what E-mail you are sent, and reveal what it says. You can even quote

an iron-clad lock on what can be published. Indeed, by many arguments, by

parts of it to demonstrate. Frankly, somebody who sues over an ordinary message

providing reward to authors, it encourages them to not just allow, but fund the

would almost surely get no damages, because the message has no commercial

publication and distribution of works so that they reach far more people than

value, but if you want to stay strictly in the law, you should ask first. On the other

they would if they were free or unprotected -- and unpromoted. However, it must

hand, don’t go nuts if somebody posts E-mail you sent them. If it was an ordinary

be remembered that copyright has two main purposes, namely the protection

non-secret personal letter of minimal commercial value with no copyright notice

of the author’s right to obtain commercial benefit from valuable work, and more

(like 99.9% of all E-mail), you probably won’t get any damages if you sue them.

recently the protection of the author’s general right to control how a work is used.

Note as well that, the law aside, keeping private correspondence private is a courtesy one should usually honour.

While copyright law makes it technically illegal to reproduce almost any new creative work (other than under fair use) without permission, if the work is

If I make up my own stories, but base them on another work, my new

unregistered and has no real commercial value, it gets very little protection.

work belongs to me.

The author in this case can sue for an injunction against the publication, actual

False. U.S. Copyright law is quite explicit that the making of what are called

damages from a violation, and possibly court costs. Actual damages means

“derivative works” — works based or derived from another copyrighted work

actual money potentially lost by the author due to publication, plus any money

— is the exclusive province of the owner of the original work. This is true even

gained by the defendant. But if a work has no commercial value, such as a typical

though the making of these new works is a highly creative process. If you write

E-mail message or conversational USENET posting, the actual damages will

a story using settings or characters from somebody else’s work, you need that

be zero. Only the most vindictive (and rich) author would sue when no damages

author’s permission.

are possible, and the courts don’t look kindly on vindictive plaintiffs, unless the

Yes, that means almost all “fan fiction” is arguably a copyright violation. If you

defendants are even more vindictive.

want to publish a story about Jim Kirk and Mr. Spock, you need Paramount’s permission, plain and simple. Now, as it turns out, many, but not all holders of

The author’s right to control what is done with a work, however, has some validity,

popular copyrights turn a blind eye to “fan fiction” or even subtly encourage it

even if it has no commercial value. If you feel you need to violate a copyright

because it helps them. Make no mistake, however, that it is entirely up to them

“because you can get away with it because the work has no value” you should

whether to do that.

ask yourself why you’re doing it. In general, respecting the rights of creators to control their creations is a principle many advocate adhering to.

There is a major exception — criticism and parody. The fair use provision says that if you want to make fun of something like Star Trek, you don’t need their

In addition, while quite often people make incorrect claims of “fair use” it is a

permission to include Mr. Spock. This is not a loophole; you can’t just take a

still valid and important concept necessary to allow the criticism of copyrighted

non-parody and claim it is one on a technicality. The way “fair use” works is

works and their creators through examples. It’s also been extended to allow

you get sued for copyright infringement, and you admit you did copy, but that

things like home recording of TV shows and moving music from CDs you own

your copying was a fair use. A subjective judgment on, among other things,

to your MP3 player. But please read more about it before you do it.

your goals, is then made. However, it’s also worth noting that a court has never ruled on this issue, because fan fiction cases always get settled quickly when the defendant is a fan of limited means sued by a powerful publishing company. Some argue that completely non-commercial fan fiction might be declared a fair use if courts get to decide.

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EXTENDING THE GERMAN BAN ON ‘Mein Kampf’ DOES MORE HARM THAN GOOD Right-wing extremism still flourishes in Germany, but forbidding the publication of Hitler’s screed accomplishes nothing—and may even make it more alluring to the wrong people.

OTTO STRASSER, AN EARLY FOLLOWER OF ADOLF

famous American correspondent from that era,

Hitler who later broke with him and escaped from

summed up his views: “The Jews are responsible

Germany, recalled a dinner with top Nazi officials

for everything.” She added: “Take the Jews out of

at the 1927 Party Congress in Nuremberg. When it

Hitler’s program, and the whole thing … collapses.”

became apparent that no one had read Hitler’s Mein

To be sure, committed anti-Semites were in

Kampf in its entirety, they agreed to ask anyone who

complete agreement with Hitler’s descriptions

joined them if he had done so—and stick whoever

of Jews as bloodsuckers and vermin—and anti-

answered in the affirmative with the bill. As Strasser

Semitism has hardly disappeared from today’s world,

reported in his memoirs, “Nobody had read Mein

including in Germany. According to a recent study,

Kampf, so everyone had to pay his own bill.”

one fifth of the population harbors “latent” feelings

There’s a reason that even many of Hitler’s

of hostility toward Jews. And about 26,000 Germans

followers never bothered to plow through the two

have been identified as right-wing extremists by

volumes of his autobiographical screed: it makes for

the government, which is stepping up its efforts to

an excruciating reading experience, no matter what

combat this small but at times violent minority. One

The only reason that the book may still exude a bit of magnetism for anyone but the already fanatical adherents of the far right is its banned status. your political leanings. Which is just one reason why

cell is suspected of killing 10 people since 2000, nine

the successful bid by the Bavarian authorities this

immigrants and a policewoman.

week to uphold the postwar ban on publishing the

But none of this strengthens the case for keeping

book in Germany defies logic. A far more sensible

the ban on the publication of Mein Kampf. With its

approach would be for the authorities to lift the

hundreds of pages of turgid, often incoherent prose,

it’s hardly a major attraction now.

When Hitler was on the rise, the most perceptive

In fact, the only reason that the book may still

American correspondents in Germany despaired

exude a bit of magnetism for anyone but the already

that almost no outsiders had paid any attention

fanatical adherents of the far right is its banned

to Mein Kampf. H.R. Knickerbocker, the Berlin

status. And even that is a somewhat bogus claim,

correspondent of the Philadelphia Public Ledger and

since any German who wants to read the book can

the New York Evening Post, told a fellow American

turn to the Internet or buy a copy abroad. Owning

reporter who had just arrived in the German capital

Mein Kampf is not a crime; the current ban only

to read the book right away. “No American I know

prevents publication of the book in Germany.

of has taken the trouble to read it seriously, but it’s

It’s time to let Hitler’s outpouring of venom,

all there: his plan for the conquest for Europe,” he

dictated in 1924 while he was serving a short term in

told him.

prison for his role in the failed Beer Hall Putsch, to

So, too, of course, was Hitler’s vituperative

be published. Today’s Germany is certainly a strong

language about the Jews and what he wanted to do

enough democracy to survive such a shift in policy,

to them. After reading Mein Kampf and interviewing

and it may even benefit from it. Inoculations always

Hitler in late 1931, when he was still an opposition

involve inserting a bit of poison into the body to

leader on the rise, Dorothy Thompson, another

strengthen it. Germany is fully ready for its shot.

19 19

“Immature poets imitate; mature poets steal; bad poets deface what they take…” —T.S. Elliot

DON’T BE A VICTIM OF COPYING by Richard Grefe

Truly creative work is hard won and represents the synthesis of deep personal exploration, knowledge, skill and experience. It’s no wonder then that designers who find their work copied are angry. What’s more, the “artist” who copies another’s work commits a crime against not one but two parties: stealing from

First, whenever possible register the copyright for your work. The process is somewhat technical and will be discussed more fully in a future post. An application to register your copyright may be filed using paper forms or directly online with the U.S. Copyright at http://www.copyright.gov/eco/. The filing fee is

a designer who is absent or helpless, the basest form of stealing, and cheating

merely $35 and it is one of the best deals the government offers since multiple

a client who is seeking something pure and original. The law provides protection

works can be registered in one application.

against this offense, but like most trips to a new place, it requires you learn a few local customs and words of a new language to get the most from it.

2 3

Second, when clients tell you that they “want it to look just like this,” educate them as to the value of original design work and the pitfalls of copying.

AIGA

Copyright law is not equipped to understand or accommodate the world of nuances that designers and artists live in. However, the law does make a

distinction between being influenced by a work or an idea and actual copying.

Most designers have difficulty understanding this point, and its importance in seeking a remedy cannot be emphasized enough. Stated briefly, copyright

Third, keep records of your work; it makes it much easier to prove the originality of your particular creative process when trying to prove copying. Keeping a

record of your ideation and creation process in digital form has become very inexpensive. It is the most tangible benefit of the cloud.

law only prohibits actual copying and provides rights to authors to control how

their work may be used as the basis for new work. Under copyright law, such

Finally, whenever possible place a copyright notice on your work. Under federal

new work is referred to as a derivative work, and if one doesn’t have rights in

law, you have a copyright when the work is created, but registering that work is

the original work, either as the author or with permission from the author, one

the copyright equivalent to a first-class seat upgrade: You get extra rights that

cannot have rights in a derivative work. The artist or designer who copies has

make pursuing unauthorized copying much easier.

no rights under copyright law. More important, designers who engage in such a practice end up exposing their clients to potential legal action, possibly even monetary liability.

As noted earlier, copyright law is constructed to permit the free exchange of

ideas, and in the case of design and the visual arts ideation is often expressed

in a “style.” It is difficult to prove unauthorized copying when an accused work merely evinces a similarity of style or creates a similar visual impression without

the actual copying of a preexisting work. Although that does not mean that when a copied work is so similar in its form and structure, and merely displays minor

differences in shapes or color palate, improper copying cannot be proven. The

practical issue for a designer is the cost of pursuing such an allegation. All designers and artists know and understand that the history of design is bursting with examples of works influenced by or based upon earlier created works. The

law accounts for these phenomena and requires the demonstration of copying for copyright infringement to be proven. Nevertheless designers have several options to help reduce the likelihood that their works will be copied.

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SOURCES OF CONTENT “Philosophy of Copyright.” Wikipedia. Wikimedia Foundation, 26 Apr. 2012. Web. 26 Apr. 2012. <http://en.wikipedia.org/ wiki/Philosophy_of_copyright>.

Templeton, Brad. “10 Big Myths about Copyright Explained.” 302 Found. Web. 26 Apr. 2012. <http://www.templetons.com/ brad/copymyths.html>.

Purcell, Raji. “Use Your Own Ideas” Digital image. Design Work by Raji Purcell. Web. <http://rajipurcell.com/ObliqueStrategy-Illustrations>.

Nagorski, Andrew. “Extending the German Ban on ‘Mein Kampf ’ Does More Harm Than Good.” The Daily Beast. Newsweek/Daily Beast, 29 Jan. 2012. Web. 26 Apr. 2012. <http://www.thedailybeast.com/articles/2012/01/29/ extending-the-german-ban-on-mein-kampf-does-moreharm-than-good.html>.

Martinez, Frank. “Don’t Be a Victim of Copying.” AIGA. Web. 26 Apr. 2012. <http://www.aiga.org/dont-be-a-victim-ofcopying/>.

COLOPHON Edyta Jaworek

FONTS USED:

Typography II

Apex Sans

instr. Polly Johnson

Baskerville

RCAD

BigNoodle Titling

Spring 2012

Gill Sans Grotesque MT Helvetica Nueue Rockwell Snell Roundhand Super Duty

Ringling College of Art + Design Spring 2012