NOTE: This information contains direct quotes from Legal Guide for the Visual Artist, 4th Edition (1999) by Tad Crawford. All quotes are used with kind permission of the author.
Q: When am I allowed to use a work that is copyrighted?
A: You can legally use a copyrighted work under certain circumstances. You can purchase a license or get explicit written permission from the copyright holder to use the work in a specific project or application. There are exemptions, such as fair use and classroom display, that permit you to use the work without needing permission.
Q: What is the difference between a copyright and a license?
A: A copyright gives the creator the rights to control how a work is reproduced, copied, distributed, made into derivative works, and publicly displayed, or publicly performed. A license is a contract a copyright holder creates to restrict use or require additional actions to use a work for a predetermined amount of time. You can license any or all of these rights for any amount of duration. In some cases, as in open source code, your use of the work binds you to the license whether you know about it or not.
Q: What is the test for copyright infringement?
A: "It is whether an ordinary observer, looking at the original work and the work allegedly copied from it, recognizes that a copying has taken place."
Even if the copy is larger than the original, rendered in a different medium, or altered in some way (such as Photoshop filters and collages), the copying is still an infringement, "if the ordinary observer test leads to the conclusion that more than a trivial amount of the original work has been copied."
"Some art school instructors tell their students that if more than a certain percentage of the original work is changed, perhaps 25% or 33%, the new work will not be an infringement. These instructors are incorrect, because copyright law neither includes nor recognizes such a percentage test."
Q: What's the difference between theft and infringement?
A: If a person steals a painting from an art gallery, it is theft. If a person illegally copies an image (downloaded from the Web, or reproduced by mechanical or other means), it is infringement.
Theft is violation of criminal law. The punishment is incarceration (a prison sentence), fines, or both.
Infringement is a violation of civil law. The punishment is a law suit and/or an injunction. An injunction is a judicial process restraining a person from a wrongful act (such as exhibiting or selling an infringed work of art), or compelling restitution to an injured party (such as a public statement of apology, payment of damages, etc.) Note that statutory damages for copyright infringement can be anywhere from $200-$100,000, depending on whether the infringer is deemed innocent or willful.
Q: Can a professor or the University use a student's paper without the student's permission?
A: No. The student's paper is copyrighted, and permission must be obtained to do anything with it.
Q: If I am paid to develop on-line education content, who owns the copyright?
A: Whether you are faculty, student, or staff, if you are paid to do a specific task, then you were contracted to do a work-for-hire. In this case, the University owns the copyright. However, you are free to negotiate to maintain rights to any of the copyright uses in your work-for-hire contract.
Q: I'm only a student, and I won't make any profit on my classroom projects. Why can't I just use others' works for practice or my projects?
A: You are free to use others' works that are lawfully obtained for your own purposes, but as soon as you display or exhibit their work you are subject to copyright law. This includes turning in class assignments and your portfolio.
It is advisable to create your own works from scratch, get licensed or written permission from copyright holders, or find sources of copyright-free images. Some copyright holders may grant written permission for students to use copyrighted works in college assignments.
Q: If I follow the classroom exemption guidelines, am I free to use the works outside the classroom?
A: Assuming you qualify for a classroom exemption and interpret the use guidelines conservatively, both faculty and students are allowed to use the copyrighted works at peer conferences and in portfolios.
Q: When is a work considered to be in the public domain, and therefore copyright-free?
A: Generally, a work of art enters the public domain when the copyright has expired. This is 75 years after the artist's death or 95 years if it was created by a corporation. However, just because an artist has been dead for many years doesn't automatically mean that his or her work is out of copyright; it may still be owned by a gallery or the artist's estate. Similarly, a printed or digital reproduction of a work in the public domain may be copyrighted by a publisher.
Q: Thousands of images on the web don't have a copyright notice, watermark, or Digimark®. Since nobody bothered to copy-protect them, why can't I just download them for my own art and web site?
A: As of March 1, 1989, copyright notice is not required in order for the work to be protected by law. Downloading and copying "unprotected works" is an infringement, unless it is covered under fair use or other copyright exemptions.
Q: How do I get permission to use a copyrighted image?
A: If you know the copyright holder, you can simply ask for written permission.
Q: Where can I find copyright-free images?
A: If you surf the Web, you can find sources of copyright-free imagery. Some sites provide free "click-art" which you can legally download and use.
Certain copyright-free imagery is free to download; others must be purchased from stock imagery firms with a specific-use license.
You can also purchase inexpensive books of "clip-art" or copyright-free images, such as the Dover Pictorial Archive series. These works are in the public domain (see below), but you still need to check the copyright permission notice for the publisher's terms (generally inside the book's front cover).
Q: Am I allowed to download a song from a file sharing service as long as I don't share it with others?
A: No. Even downloading songs violates copyright law. Although the recording industry currently sends notifications primarily for distributing copyrighted materials, downloading even one song without paying for it is still illegal, and can result in legal action against you by the industry.
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