By Tom Eveslage, PhD
A photojournalism student in my Communication Law class several years ago had a very personal reason for tackling a term-paper project. Alex had discovered several of her photos, displayed on her personal Web page, had been downloaded and used without permission in a company’s publication. She had never been asked, or compensated.
Alex was angry and did research to confirm what she suspected – that the company had violated her right to control the uses of her created work.
That publication’s editor may have thought that because a student had taken the photos or the company’s publication wasn’t being sold commercially that it was OK to reprint the photos without permission. You may have used the same reasoning to justify “borrowing” online artwork for use in your student publication. Each of you is flirting with a lawsuit.
Almost five years ago, PSPA’s Legal Pad column described Internet theft of creative work as easy, common and risky. Student journalists in growing numbers were “borrowing” online material for use in their publications. Student Press Law Center Director Mark Goodman noted that student journalists violate copyright more than any other area of the law.
Today, with so much information just a mouse-click away, and so many more savvy searchers, illegal use continues to increase. Students so far have escaped punishment because those who have created the work copied believed it wasn’t worth the effort to prosecute. But as violations escalate, copyright owners are starting to flex their muscles.
The music industry certainly has. The Recording Industry Association of America (RIAA) used 1,600 subpoenas last summer to get Internet service providers and universities to help identify users sharing copyrighted music. In September, the first wave of lawsuits targeted 261 violators accused of illegal file-sharing. The guilty face stiff fines.
So, in words a teacher would use, let’s review the copyright lesson. As the RIAA fires off subpoenas and flies lawsuits against high school and college students illegally downloading and sharing music from the Internet, everyone should be paying attention.
First, some fundamentals. Federal copyright law applies to all creative expression, whether it’s on a piece of paper you hold or a computer screen in front of you. Any creative work – music, sculpture, dance, designs, comic strip characters, advertisements, news stories or photographs – belongs to the person who put creative ideas into a tangible form. That person owns the copyright from the time that work is created. And only the copyright owner has the power to sell or give away that ownership right.
Student journalists and others quick to use someone else’s work too often justify their actions by focusing on their motives for using the work.
“We’re using it just once; it’s in a school publication, and we’re not making money from it, so it’s OK,” this reasoning goes. What’s not being considered, but must be, is the reason that copyright law exists. It encourages creativity by protecting the “intellectual property” of the copyright owner. The law does not allow you to put your motives for using someone else’s creation above the ownership rights of the creator.
Consider this example: Suppose your school district decides that a new book by author Joyce Carol Oates should be required reading in senior English classes. The district has budget constraints, however, and can’t afford to purchase the book. Learning of this, a wealthy parent in the district agrees to buy one copy of the book, then pay to photocopy it for every senior in the school. There will be no cost to the district. Is this legal?
Consider the user’s arguments for copying:
- The parent bought the book and therefore should be able to use it in any way he or she wishes.
- The parent and the district are not selling the book for profit.
- The district taxpayers will be spared the cost of purchasing hundreds of books.
If these arguments persuade you that it’s OK to copy the book, you probably are among those the RIAA is targeting for file-sharing. And you, the file-sharers and this school district would be in trouble.
Millions of users who have downloaded such file-sharing services as Kazaa or Grokster or Morpheus use similar reasoning. But the law supports owners of the music – the composers, musicians or recording companies. So after watching CD sales decline 30 percent during the past three years, the recording industry wanted the copyright laws enforced.
Likewise, the school district tempted to accept the parent’s generous offer to photocopy and share his Joyce Carol Oates text is likely to get an unfriendly visit from the author’s book or publisher’s attorney. Because when the owner’s “property” was used without permission or compensation, that person’s rights under federal law were violated, just as were the rights of the Temple student whose photographs were downloaded and published.
The next time you’re ready to download and publish a design, image or written piece from the Internet, consider the rights of the copyright owner as well as your reasons for copying. You may be able to legally justify using the copyrighted work, but only if you satisfy Fair Use criteria balancing the rights of user and copyright owner.
Consider a scenario you may face as a student editor: You want to reproduce and use in your newspaper or yearbook a photo or illustration from a commercial Web site. Whether this is Fair Use depends upon your answer to these questions.
- Why are you copying or how are you using someone’s creative work? It’s a factor in your favor if the photo or illustration is used in a student publication that is an educational tool and not being sold for commercial gain. This is what protects a student who copies for personal use a magazine article from the library or who at home videotapes a TV program to watch at a later time.
Copying the cover of a CD or DVD for use with a music or film review also is a good defense when responding to this question. If your copying is for commercial purposes or to spare you the cost of paying the photographer or publication what they charge for the artwork, your argument for copying is weaker. - How much of the original are you copying? This is a second question that focuses on you, the user. If you reprint some of a song’s lyrics, several lines of a poem, or a cropped portion of an illustration, you should be all right. If you use all of the created work – an entire poem, a prancing Snoopy, an entire photograph or illustration – you are on shaky grounds. This does not mean that your use is not “fair,” just that you need good answers to the other “fair” use questions.
- Is the original you are copying a commercial product available for sale? Now we move to the Fair Use criteria that protects the copyright owner. If the illustration or photograph you want to copy is marketable, commercial “property” owned by the person who created it or the company that distributes it, your use without permission could be a violation. This is the recording industry’s argument in its lawsuits against file-sharers. The company that downloaded and published a photo from the Temple student’s website stole an obviously marketable creation. When in doubt, ask.
- Will your use of the photo or illustration hurt the market value of the original? The courts weigh this very heavily, as the recording industry knows when it actively pursues file-sharers cutting into corporate profits. The 261 accused file-sharers that the RIAA recently targeted cannot count on support from the “everyone’s doing it” argument. Because the industry can show financial loss from illegal file-sharing, anyone engaged in the practice hurts the copyright owner. If you use without permission or payment a created work with market value, you potentially hurt the market value…and may be in trouble.
- When you consider Fair Use to justify your copying, remember that this is not a multiple-choice set of defenses. Your answer to any one of the questions will not, by itself, determine whether you are on safe ground. But you should never rely on just one argument – such as the fact that this is just going into your student publication – and conclude your use is “fair” because of that one answer. You should feel comfortable arguing all areas of Fair Use.
One final point: Many students believe that as long as they give credit to the source, it is OK to reproduce copyrighted material. Plagiarism occurs when we take credit for ideas or work and fail to identify the creator or source. Plagiarism is wrong, of course, but is not the same as copyright violation. The latter is a crime.
This article was written for the October 2003 Keystoner, the newsletter of the Pennsylvania School Press Association and reprinted here with permission. The author, Tom Eveslage, is a journalism professor who teaches law and ethics at Temple University. He is a member of the PSPA Advisory Board and an emeritus PSPA Executive Board member. He is also on the board of directors of the Student Press Law Center. You can reach him at eveslage@astro.temple.edu or by phone at 215-204-1905.