A FEW THINGS YOU NEED TO KNOW ABOUT COPYRIGHTING

YOU KNOW I LOVE TO PASS ALONG VALUABLE INFORMATION

When owning your own business it is very important to be knowledgeable about the tidiest details. I perform many business writing duties to for my clients. I just felt this was something worth sharing. I found this on Linkedin.com.

In May of 2011 millions of fans filled theaters across the nation to witness the release of the sequel to the hilarious film involving a bachelor party trip to Vegas. This sequel, The Hangover Part II, was produced with an $80 million budget and grossed over $500 million worldwide by late June of that year. Many fans raved of its comical appeal and instantly knew that the film would be a hit, but what many fans aren’t aware of is that the movie release was almost halted due to a copyright infringement claim that was filed in April of 2011.
On April 28, 2011, S. Victor Whitmill, Mike Tyson’s tattoo artist, filed a lawsuit against Warner Bros. This lawsuit claimed that the company infringed on the eight-year-old copyright that Whitmill had obtained on the famous tattoo that lines the left side of Mike Tyson’s face. Whitmill asserted that the infringement occurred when Warner Bros. included a replica of that same tattoo on the face of the film’s character, Stu, without Whitmill’s consent. Whitmill sought an injunction what would have blocked the movie’s release.
On May 24, 2011, Chief Judge Catherine D. Perry of the US District Court for the Eastern District of Missouri denied that injunction, allowing the film to still be released as scheduled, but simultaneously stated that Whitmill DID have a case. In early June of 2011, Warner Bros. stated that it would digitally alter the film to remove the image when the movie was released on home video, although the two sides would later amicable reach a settlement agreement that allowed Warner Bros. to keep the tattoo in the movie.
So why did Warner Bros. feel entitled to use the image on Mike Tyson’s face as a part of their film? Warner Bros. claimed that the image was “clearly” parody, thus it adhered to the Fair Use Doctrine of Copyright Law.
As expressed in my previous article Copyright, Trademark, Patent: Basics of Intellectual Property, copyright is a form of intellectual property that receives legal protection. The Fair Use Doctrine protects replication of such copyrighted material that is done for a limited and “transformative” purpose. Transformative purposes include copying done for commenting, criticizing, and/or parodying a copyrighted work.
So how does the court analyze whether a party’s use of copyrighted material is infringement or fair use? They employ the following four-factor test and take into account all information surrounding the use.
·         The Purpose & Character of Your Use
This is the “transformative” factor that asks the degree to which you altered the meaning of or added new expression to the original work. If your work has created new value, added a different perspective or understanding, or generated new insights in regards to the original work, it will less likely be seen as infringement. For parody cases, as in the Hangover Part II instance, the court will additionally look at the level of ridicule aimed at the original work.
Here the court will also look at whether you are using the image for commercial gain. If the use is in conjunction with a commercial offering (i.e. you will be making money) the court is more likely to find that infringement does exist.
·         The Nature of the Copyrighted Work
This factor asks two questions, is the copyrighted material fact or fiction, and is the copyrighted material published or unpublished. Courts are less likely to find infringement when the copyrighted material is a compilation of facts. Likewise, using a published work will more likely fall under fair use than using fictional work.
·         The Amount & Substantiality of the Portion taken
Under this factor, the general rule is that less is more. The less you take from the original copyrighted material, the more likely it is that you will fall under the fair use protections. Typically, the court looks at if you took significantly more than was needed to “make your point.”
The “less is more” generality is not necessarily the same for claimed parody uses. In a famous 1994 Supreme Court decision involving Acuff-Rose Music, the court stated that “the heart [of the work]… most readily conjures of the [original] for parody.” Because parody takes aim at criticizing and ridiculing the heart of copyrighted material, the court will generally allow for works of parody to “borrow” more than other claims of fair use.
·         The Effect of the Use Upon the Potential Market
This factor is pretty straightforward, did you take money out of the pocket of the copyright owner? In instances where your use of the copyrighted material deprived the original owner of income, it will be more likely that you have infringed on that original work. For instance, if you created paintings from a portrait you saw and people purchased your paintings instead of the original work, the portrait, it will likely be seen that you infringed on that copyright owner’s work.
It is very important to remember the “dos and don’ts” of Fair Use when attempting to create transformative work that utilizes other’s previously produced material. Protecting yourself and your work is essential. If you have questions as to whether you are infringing on someone else’s intellectual property, seek an attorney for confirmation.
Jamal Jackson, JD/MBA is a corporate attorney licensed in the State of Illinois. He is the Managing Attorney of Jackson Corporate Law Offices (www.JacksonCounsel.com), Co-Founder of Initiative Consulting Group, LLC (www.initiativecg.com) and a Public/Motivational Speaker engaging audiences in the topic areas of Business, Leadership, and Legacy (www.JamalEJackson.com).



Comments

Popular posts from this blog

NIECY RATLIFF IS SHARING HER ARTICLES!!!!! LET'S WELCOME HER

WHAT'S ALL INSIDE LUV~UR~CITY INC.