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Copyright-Free, Public Domain, Fair Use – An Insight into Important Definitions

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Ever since middle school I have heard copyright, trademark, patent, plagiarism and fair use used over and over again but never really knew specifically what they meant until now. I kind of just grouped them together and naively assumed they were basically synonyms for one another. Thanks to this assignment I can now differentiate between each one.

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I do not think the Shepard Fairey article is a violation of copyright. I think this because of the Fair Use Doctrine. I completely agree with Anthony T. Falzone, one of Mr. Fairey’s lawyers, when he said, “[Fairey] used the photograph only as a reference and transformed it into a stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.” Falzone’s statement goes along with the fair use factors used in court to decide if the use of a piece of work is fair. The first factor listed in section 107 of the Copyright Act states “The purpose and character of the use of copyrighted work,” which means if you have transformed the original and are using it for a different purpose, which is what he did. Also, the fourth factor states, “The effect of the use upon the potential market for or value of the copyrighted work.” So, uses of copyrighted material that serve a different audience and/or purpose would be more likely to be considered fair which is what he did considering the original photo was just simply taken of Obama and not used to get a message across or anything like that. While I think the Fairey article is not a violation, I do think the Bob Dylan article is. Fairey actually admits that the original photo inspired him but then Dylan does not even remotely acknowledge the original artist and completely tries to pass it off as his own. The third factor of Fair Use states, “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In other words copying nearly all the work weighs against fair use, the less you copy the better your chances. Dylan does not even remotely try to change the work. He copies the entire photo into a painting.

I most definitely think there is a “grey area” because of Fair Use. After reading the articles provided I further researched Fair Use and found a website that explained, “Fair use allows people other than the copyright owner to copy part or, in some circumstances, all of a copyrighted work, even where the copyright holder has not given permission or objects.” (http://www.teachingcopyright.org/handout/fair-use-faq) The main reason I feel there is a “grey area” is because Fair Use is decided by courts on a case-by-case basis so there are really no actual set guidelines for Fair Use. The website also stated, “courts are often interested in whether or not the individual making use of a work has acted in good faith,” so my feelings are if you are brought to court and use Fair Use as your defense it all depends on how good your attorney is or which judge you get that day.

None of the articles that were provided explained how you could use something that is copyright-free so my best educated guess would be that, when you use something that is copyright-free you need to make sure you cite it. The public domain works differently, “a work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” (http://copyright.gov/help/faq/faq-definitions.html#public_domain) To be more specific than this definition there are three main categories of the public domain work; Works that automatically enter the public domain upon creation, because they are not copyrightable [titles, names short phrases, numbers, ideas, facts, processes, symbols, government works and documents], Works that have been assigned to the public domain by their creators, Works that have entered the public domain because the copyright on them has expired.” (http://www.teachingcopyright.org/handout/public-domain-faq) I think that depending on how you plan on using the original work, you should still provide the owner’s info if you know it. My reasoning for thinking this is because not only is it the ethical thing to do but I feel if you do not do this then it would be plagiarism, which “according to the Merriam-Webster Online Dictionary, to “plagiarize” means to steal and pass off (the ideas or words of another) as one’s own, to use (another’s production) without crediting the source, to commit literary theft, to present as new and original an idea or product derived from an existing source. In other words, plagiarism is an act of fraud. It involves both stealing someone else’s work and lying about it afterward.” (http://www.plagiarism.org/plagiarism-101/what-is-plagiarism/)

Throughout this paper I have explained what copyright-free, public domain and Fair Use is. But to differentiate them, in short, I would say copyright-free means using someone else’s work but still citing the owner’s information. The Public Domain contains work that anyone can use freely because it either could not be copyrighted in the first place, the creator of the work entered it in or the copyright has expired. Lastly, the Fair Use Doctrine is almost like a loophole to the Copyright Act. It backs up the First Amendment’s guarantee of freedom of expression because it allows people to use other’s work if they use it in a different way, if the do not make a profit off of it and if the do not copy all of the original work.

Copyright.gov explains how one’s work is protected from others taking it. It says, “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device” and that “copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.”

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