Copyrights are meant to encourage innovation and creative activity by protecting the product of a musician, artist, writer, or scientist’s work. A copyright is a property right in an original work that gives the holder the exclusive right to control the reproduction, distribution, and other use of the original work, including the right to make new works derived from the original. With these protections, the creator can be sure to reap the rewards of his or her own work without fear that someone else will appropriate it. Copyrights can be distinguished from trademarks in that they protect a specific piece of work, where trademarks protect a brand image.

The challenge inherent in copyright law is in achieving the proper balance between the copyright holder’s interest and others’ First Amendment freedom of expression. Because these two interests are often at odds, four key “safety valves” have been developed to help maintain this delicate balance. The “idea/expression” doctrine allows only the expression of an idea to be protected, but not the idea itself. Certain concepts, for example the theme of star-crossed lovers, are so wide-spread in society that it would be unreasonable to consider them copyrighted. In this way, no one can have a monopoly on an idea. The first-sale rule gives copyright holders only the right to the first sale of their work. Afterwards, the buyer can resell or give the work to another. The third safety valve is a limitation of the length of time a work receives protection. After a copyright’s expiration, the work enters the “public domain” and may be used by anyone. Recent amendments to the original Copyright

Act have extended the copyright period, generating heated debate. Critics fear that these extensions make academically and socially valuable work inaccessible to the public by delaying their entry into the public domain.

The fourth and final “safety valve” allows appropriation even before the copyright’s expiration. The fair use doctrine permits the use of copyrighted works for scholarship, journalism, criticism, or parody (only if the appropriation specifically criticizes or comments on the copyrighted work itself and not society at large). Most copyright/censorship issues arise under the fair use doctrine. To help courts distinguish between fair use and infringement, several factors are considered. They include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the copying or appropriation, and the effect upon the potential market or value of the copyrighted work. Although these factors appear straightforward, application of the fair use doctrine has been inconsistent and unpredictable. This uncertainty has led to a chilling effect where individuals refrain from questionable fair use of copyrighted works out of fear of being prosecuted for copyright infringement. Often, these are smaller groups or individuals who cannot afford to purchase licensing rights from a copyright holder or the litigation following infringement.

A developing controversial area of copyright law involves emerging technology and its implications. With the advent of the Internet and sharing capabilities, copyright holders have pushed for more stringent restrictions on file sharing. Consequently, with an increased ease in copying, there has been shrinkage of what is considered “fair use” and an enlargement of protection for copyrights. The most publicized area of copyrights and technology has occurred in the music industry, where record labels have gone after file-sharing devices like Napster. Congress has taken action in the form of the Digital Millennium Copyright Act (DMCA), which seeks to prevent illegal copying with new technology. However, its effect has been to further tighten and restrict copyright law, so that legal use of copyrighted materials becomes illegal when done electronically.

The following cases and resources illustrate the issues that arise under the Copyright Act and provide further information and commentary.

» Tom Forsythe's Barbie Battle Artist Tom Forsythe was sued by Mattel for copyright and trademark infringement for his use of their Barbie dolls in a series of photographs entitled "Food Chain Barbie." After four years of litigation, Forsythe, with the help of the ACLU and a private firm, prevailed and was awarded legal costs amounting to over $2 million.
An article in Forsythe's own words:
A synopsis of the issue: » The Price of Fair Use: Tom Forsythe's Barbie Doll Photographs - August 2004

» Hoepker v. Kruger 200 F.Supp.2d 430 (S.D.N.Y. 2002). Artist Barbara Kruger used a photograph from German photographer Hoepker in a collage. The Court found no copyright infringement by determining Hoepker's photo was part of the public domain and therefore outside of copyright protection.

» Sun Trust Bank v. Houghton Mifflin, Co. 268 F.3d 1257 (11th Cir. 2001). The Court determined that a book, The Wind Done Gone, was an allowable parody under the fair use doctrine of the classic novel, Gone with the Wind, because it specifically criticized the classic's depiction of the Civil War era South and did not make general commentary of the time period.

» Leibovitz v. Paramount Pictures Corp. 137 F.3d 109 (2d Cir. 1998). Photographer Annie Leibovitz sued Paramount for a movie advertisement copying her photograph of a naked, pregnant Demi Moore. The Court held the advertisement was an allowable parody.

» Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994). Acuff-Rose sued the band 2 Live Crew for copyright infringement for a parody of the Roy Orbison song, "Oh Pretty Woman." The Supreme Court confirmed for the first time that a parody is a protected form of speech, within the scope of the fair use provisions of the Copyright Act.

» Boggs v. Bowron 842 F. Supp 542 (D.D.C. 1993). Artist J.S.G. Boggs challenged the constitutionality of anti-conterfeiting statutes when it was discovered that he had reproduced liklinesses of United States currency. Boggs had not tried to pass off the "Boggs Bills" as real money, but rather explained they were artistic expressions. The constitutionality of the statute was upheld.

» Rogers v. Koons 960 F.2d 301 (2d Cir. 1992). The Court held that artist Koons infringed on photographer Rogers' copyright of an image entitled "Puppies" when he exactly copied the image in sculpture. Koon's argument for parody failed because he was critiquing society at large, not just the "Puppies" photograph specifically.

» Wojnarowicz v. American Family Association 745 F. Supp 130 (S.D.N.Y. 1990). An artist sued the AFA for unauthorized use of his artwork in a pamphlet criticizing his work and the NEA's funding practices. The district court distinguished between the New York Artists' Authorship Rights Act and the federal copyright law as addressing different issues

Resources

The Law

» The United States Copyright Office - Copyright Basics

» Visual Artists Rights Act (Section 106A) A 1990 modification of the Copyright Act of 1976 that specifically provides protection for visual artists' works without requiring registration of a copyright. » Read the full text of the VARA and Copyright Act of 1976

Websites

» The Free Expression Policy Project A self-described "think-tank on artistic an intellectual freedom" providing information and advocacy for free expression, concentrated mainly in the areas of mass media, copyright, the internet, public funding, and youth.

Articles

» Free Speech and Fair Use Versus Digital Copy Control November 2000
By Donna Demac
Overview of the Digital Millennium Copyright Act (DMCA) and its potential deteriorative effect on the traditional copyright law doctrine of fair use.

» Dow v. Thing - A Free-Speech Infringement That's Worse Than Censorship January 2003
by C. Carr
On Edge/The Village Voice
Illustration of an application of the DMCA against a website

» Internet Freedom in Question January 2003
More commentary on Dow v. Thing and its implications for First Amendment rights.

» U.S. Customs Seizes Comic Book Shipment, Which Includes Political Satire December 2004
A comic book's satirical look at the Bush administration and use of well-known comic strip characters incites copyright and free expression issues.

Censorship News Online

» Prohibited Piracy or Protected Parody? by Joan E. Bertin
Commentary on Sun Trust Bank v. Houghton Mifflin, Co.
Issue #82: Summer 2001

» Re-telling Margaret Mitchell's Gone with the Wind from the slaves' point of view, is a parody The Wind Done Gone: The 11th Circuit found that Alice Randall's novel, re-telling Margaret Mitchell's Gone with the Wind from the slaves' point of view, is a parody, an important element of Randall's "fair use" defense to copyright infringement claims. The court remanded for fact-finding on other elements of the defense. The decision provides a useful review of copyright law and history. An injunction against publication of Randall's book was lifted by the appeals court last spring.
Issue #83: Fall 2001

» Important First Amendment cases are pending in the Supreme Court Important First Amendment cases are pending in the Supreme Court: a copyright case, Eldred v. Ashcroft, argued in October, challenges a 1998 extension of copyright protection in most cases to 100 or more years.
Issue #88: Winter 2002 - 03

» The Copyright Term Extension Act If Texas Congress member John Carter has his way, college students who download music and other copyrighted material from the Internet may find themselves in jail. He reportedly suggested that jailing students would stop piracy. The Copyright Term Extension Act was upheld by the Supreme Court by a vote of 7-2, (Eldred v. Ashcroft). The Act extended the time for works to enter the public domain by an additional twenty years. Free expression groups are divided on whether creativity is better nurtured by the prolonged protection of individual financial interests or the wider availability of creative works.
Issue #89: Spring 2003

» Parody is protected by the First Amendment Parody is protected by the First Amendment, ruled the California Supreme Court, overturning a lower court decision in the case of Edgar Winter, et al. v. DC Comics, et al. Musicians Johnny and Edgar Winter had sued DC Comics for "illegally exploiting their images" and for violating their publicity rights with comic book portrayals of them as half-human, half-worm creatures Johnny and Edgar Autumn. "Although the fictional characters... are less-than-subtle evocations of Johnny and Edgar Winter, the books do not depict plaintiffs literally. They are distorted for purposes of lampoon, parody, or caricature," wrote Justice Ming Chin for the court.
Issue #90: Summer 2003

» Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right Political satirist Al Franken and Penguin Publishers are likely to gain a boost in sales from a suit by Fox News over the title of Franken's new book, Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Fox claimed that Franken violated its trademark of the phrase fair and balanced, which is how the network describes its news coverage. U.S. District Court Judge Denny Chin ruled that the title is parody, protected by the First Amendment.
Issue #91: Fall 2003

» Tom Forsythe's Barbie Battle Tom Forsythe, an artist who used images of Barbie for satirical purposes, recovered legal fees in a copyright action by Barbie's maker. A federal court in California concluded that Mattel, Inc. brought "costly litigation to discourage him from using Barbie's image in his work."
Issue #94: Summer 2004

» BLEEP: Censoring Hollywood? by Marjorie Heins
The remarks taken from a speech talking about the bowdlerization of movies and whether software that permits the mutilation of movies is permissible under our copyright law.
Issue #98: Summer 2005