Copyright Law & Graduate Research [Preface]

Part II: WHAT IS COPYRIGHT?

Rights of Authors

The U.S. Constitution empowers Congress to enact copyright law. The current statute-last fully revised in 1976, but amended many times since-gives authors exclusive rights to reproduce, distribute, and make many other uses of their original works. Copyright applies to much more than traditional writings-it protects artwork, sculpture, sound recordings, videotapes, motion pictures, maps, graphs, computer programs, databases, and a host of other original creations. You need to consider the copyright implications of duplicating any of these materials in your dissertation. Copyright law is not quite so simple.

Fair Use

If copyright were merely a set of rights belonging exclusively to authors, we would have to seek permission for every use. Instead, the law also grants a right of "fair use" to the public. Fair use is both a privilege and source of confusion. Disagreements about fair use are commonplace, and no one has a definitive, legally binding "answer." Congress deliberately created an ambiguous fair-use statute that gives no exact parameters-fair use depends on the circumstances of each case. The law offers four factors to evaluate and to balance: (1) the purpose of the use, including a non-profit educational purpose; (2) the nature of the copyrighted work; (3) the amount of the copying; and (4) the effect of the copying on the potential market for, or value of, the original work.[4] In applying these factors, most of us generally would agree that most short quotations from published works in a scholarly dissertation are fair use. Reproducing the full text of an article or other work-even in a scholarly publication-may not be "fair." These examples are relatively easy to grasp, but difficult questions surround more complex cases-the longer quotations, or the uses of distinctive materials, such as standardized survey instruments, questionnaires, videotapes, or computer software.[5]

Possible "fair use" examples are innumerable. Many uses require a fresh analysis, and they may never produce easy or absolute answers. Most universities have policies explaining fair use for such common activities as photocopying for research or classroom distribution, but policies on using materials in publications-such as your dissertation-are rare.[6] Courts also have provided little guidance. The fair use of materials in scholarly works is rarely the subject of judicial decisions-the litigation costs and attorney fees are prohibitive. Yet courts are not insensitive to academic needs, and the fair-use statute acknowledges the importance of educational uses. Some rulings have recognized that the growth of scholarship depends on using previous works, particularly in writing biographies or history.[7] Other rulings emphasize the harm to the potential market for the original work.

As one might expect, the outcomes of fair-use court rulings are seemingly unpredictable and conflicting. For example, courts have ruled that a teacher may not draft new arrangements of copyrighted music and distribute copies to a school choir,[8] and an educational television station cannot broadcast a protected motion picture without permission.[9] Another court ruled that the recipient of unpublished letters could not read them to students without the copyright owner's permission.[10] A series of court rulings also put sharp restrictions on fair use of quotations from unpublished materials,[11] but a more recent case has granted some flexibility to this rule when a scholar uses quotations for a research study delivered at an academic conference.[12] Courts have found other infringements in borrowing a book's "manner and style" or the "organizational scheme" of a manual on guitar playing, or the "total concept and feel" of computer software.[13] In a case that all graduate students should appreciate, fair use did not allow a magazine to copy scales measuring "love and liking" that originated in a doctoral dissertation.[14] On the other hand, courts have found fair use in the use of brief music clips as incidental background in a video production[15] and in quoting-even extensively-from an existing work in a critical study.[16] The "roadmap" below will detail a few of the most important cases.

4. For the citation to, and the full text of, the fair-use statute, see Appendix B.
5. One common possibility for fair use in education to reach the courts has been photocopying of materials to create "coursepacks." Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (photocopied coursepacks are not fair use). For commentary on the Kinko's case and its significance for education, see Kenneth D. Crews, "Federal Court's Ruling Against Photocopying Chain Will Not Destroy 'Fair Use'," Chronicle of Higher Education, 17 April 1991, A48.
6. For analysis of university copyright policies, see Kenneth D. Crews, Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education (Chicago: University of Chicago Press, 1993).
7. See, for example, Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied,, 385 U.S. 1009 (1967).
8. Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962).
9. Rohauer v. Killiam Shows, Inc., 379 F. Supp. 723 (S.D.N.Y. 1974), rev'd on other grounds, 551 F.2d 484 (2d Cir. 1977), cert. denied, 431 U.S. 949 (1977).
10. Sinkler v. Goldsmith, 623 F. Supp. 727 (D.Ariz. 1985).
11. See, for example, Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987). In 1992 Congress amended the fair use statute to affirm that no sweeping rule against fair use for unpublished materials exists, and fair use should instead depend on the four factors.
12. Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).
13. Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986); Trebonik v. Grossman Music Corp., 305 F. Supp. 339 (N.D. Ohio 1969); Holdredge v. Knight Publishing Corp., 214 F. Supp. 921 (S.D. Cal. 1963).
14. Rubin v. Boston Magazine Co., 645 F.2d 80 (1st Cir. 1981).
15. Higgins v. Detroit Educational Found., 4 F. Supp. 2d 701 (E.D. Mich. 1998).
16. Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).

Part II: WHAT IS COPYRIGHT? Rights of Authors
The U.S. Constitution empowers Congress to enact copyright law. The current statute-last fully revised in 1976, but amended many times since-gives authors exclusive rights to reproduce, distribute, and make many other uses of their original works. Copyright applies to much more than traditional writings-it protects artwork, sculpture, sound recordings, videotapes, motion pictures, maps, graphs, computer programs, databases, and a host of other original creations. You need to consider the copyright implications of duplicating any of these materials in your dissertation. Copyright law is not quite so simple. Fair Use
If copyright were merely a set of rights belonging exclusively to authors, we would have to seek permission for every use. Instead, the law also grants a right of "fair use" to the public. Fair use is both a privilege and source of confusion. Disagreements about fair use are commonplace, and no one has a definitive, legally binding "answer." Congress deliberately created an ambiguous fair-use statute that gives no exact parameters-fair use depends on the circumstances of each case. The law offers four factors to evaluate and to balance: (1) the purpose of the use, including a non-profit educational purpose; (2) the nature of the copyrighted work; (3) the amount of the copying; and (4) the effect of the copying on the potential market for, or value of, the original work.[4] In applying these factors, most of us generally would agree that most short quotations from published works in a scholarly dissertation are fair use. Reproducing the full text of an article or other work-even in a scholarly publication-may not be "fair." These examples are relatively easy to grasp, but difficult questions surround more complex cases-the longer quotations, or the uses of distinctive materials, such as standardized survey instruments, questionnaires, videotapes, or computer software.[5] Possible "fair use" examples are innumerable. Many uses require a fresh analysis, and they may never produce easy or absolute answers. Most universities have policies explaining fair use for such common activities as photocopying for research or classroom distribution, but policies on using materials in publications-such as your dissertation-are rare.[6] Courts also have provided little guidance. The fair use of materials in scholarly works is rarely the subject of judicial decisions-the litigation costs and attorney fees are prohibitive. Yet courts are not insensitive to academic needs, and the fair-use statute acknowledges the importance of educational uses. Some rulings have recognized that the growth of scholarship depends on using previous works, particularly in writing biographies or history.[7] Other rulings emphasize the harm to the potential market for the original work. As one might expect, the outcomes of fair-use court rulings are seemingly unpredictable and conflicting. For example, courts have ruled that a teacher may not draft new arrangements of copyrighted music and distribute copies to a school choir,[8] and an educational television station cannot broadcast a protected motion picture without permission.[9] Another court ruled that the recipient of unpublished letters could not read them to students without the copyright owner's permission.[10] A series of court rulings also put sharp restrictions on fair use of quotations from unpublished materials,[11] but a more recent case has granted some flexibility to this rule when a scholar uses quotations for a research study delivered at an academic conference.[12] Courts have found other infringements in borrowing a book's "manner and style" or the "organizational scheme" of a manual on guitar playing, or the "total concept and feel" of computer software.[13] In a case that all graduate students should appreciate, fair use did not allow a magazine to copy scales measuring "love and liking" that originated in a doctoral dissertation.[14] On the other hand, courts have found fair use in the use of brief music clips as incidental background in a video production[15] and in quoting-even extensively-from an existing work in a critical study.[16] The "roadmap" below will detail a few of the most important cases.
4. For the citation to, and the full text of, the fair-use statute, see Appendix B. 5. One common possibility for fair use in education to reach the courts has been photocopying of materials to create "coursepacks." Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (photocopied coursepacks are not fair use). For commentary on the Kinko's case and its significance for education, see Kenneth D. Crews, "Federal Court's Ruling Against Photocopying Chain Will Not Destroy 'Fair Use'," Chronicle of Higher Education, 17 April 1991, A48. 6. For analysis of university copyright policies, see Kenneth D. Crews, Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education (Chicago: University of Chicago Press, 1993). 7. See, for example, Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied,, 385 U.S. 1009 (1967). 8. Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962). 9. Rohauer v. Killiam Shows, Inc., 379 F. Supp. 723 (S.D.N.Y. 1974), rev'd on other grounds, 551 F.2d 484 (2d Cir. 1977), cert. denied, 431 U.S. 949 (1977). 10. Sinkler v. Goldsmith, 623 F. Supp. 727 (D.Ariz. 1985). 11. See, for example, Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987). In 1992 Congress amended the fair use statute to affirm that no sweeping rule against fair use for unpublished materials exists, and fair use should instead depend on the four factors. 12. Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998). 13. Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986); Trebonik v. Grossman Music Corp., 305 F. Supp. 339 (N.D. Ohio 1969); Holdredge v. Knight Publishing Corp., 214 F. Supp. 921 (S.D. Cal. 1963). 14. Rubin v. Boston Magazine Co., 645 F.2d 80 (1st Cir. 1981). 15. Higgins v. Detroit Educational Found., 4 F. Supp. 2d 701 (E.D. Mich. 1998). 16. Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).