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).
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