The rapid pace of electronic technology has made it not only possible but easy to do things we would not have imagined just a decade ago:

• We can capture the essence of an artist's creative labors, reduce it to a string of magnetic signals, upload it to an electronic bulletin board, and make it available anywhere in the world virtually instantaneously.
  
  
• We can record the Egyptian pyramids on film, exactly as they exist, and then electronically manipulate the image to move or rearrange them to suit our own purposes -- editorial, artistic or otherwise.
  
  
• We can take a photograph of O.J. Simpson, selectively change the contrast and color density, reproduce that image on the cover of a magazine, and subtly suggest shadowy guilt or enlightened innocence.
  
  
• We can electronically detect the contours of a human face as it moves through a video image and selectively soften the focus within to camouflage wrinkles and make the news anchor appear younger.

These enhanced capacities -- to replicate exactly and distribute instantly limitless copies of creative works and to depict as real things that are not -- have strained the limits of historical copyright concepts.

As we are compelled along by the currents of this changing technology, it is important to occasionally look back to a point of reference so that we know where we are in relation to where we seek to be. The point of reference is the U. S. Constitution, Article 1, Section 8, Clause 8:

The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The principal purpose of U.S. copyright law, as set forth in this one-sentence Constitutional authorization, is to advance public welfare by providing economic incentive for the creation and dissemination of works of authorship. Thus, the law grants to an author of a copyrightable work a temporary monopoly over the reproduction and distribution of his or her work -- a bundle of exclusive rights which the author may sell or exploit for personal gain during the term of copyright.

This Constitutionally recognized notion of a temporary monopoly in the author has been longest applied, and thus most fully explored, in the context of the printed word. So let's take a quick look over our shoulder at how copyright has evolved in this context before looking ahead today at how the same concepts might evolve in the context of other media of expression.

Recognizing Copyrightable Works

Copyright law protects original, creative works of authorship as of the moment that they become fixed in a tangible medium of expression -- i.e., the moment the creator puts pen to paper. Ephemeral expressions -- words in the air -- are not protected. Unless they are somehow recorded or preserved such ephemeral expressions hold little promise of public benefit.

Other Forms of Protectible Expression

Up to this point, we have been talking about words -- a category of copyrightable expression more broadly described as literary works and which also includes computer programs. But copyrightable expression can take other forms as well -- musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audio visual works; sound recordings; and architectural works all represent forms of expression that are susceptible of copyright protection.

However, in dealing with these other forms the line between protectible expression and unprotectible fact or idea has not yet been so sharply drawn. It was not, for example, until 1884 that photographs were judicially acknowledged as exhibiting sufficient originality to be entitled to copyright (Burrow-Giles v. Sarony) and the issue was still being debated as recently as 1968 (Time v. Geis).

What About Notice?

The presence or absence of a copyright notice on a particular work will have varying significance, depending upon the date the work in question was first published. A sufficient copyright notice consists of the word "copyright," the abbreviation "copr." or the symbol together with the year of first publication and the name of the copyright claimant.

Works first published prior to January 1, 1978, must contain a copyright notice on all authorized copies. The authorized distribution of a copy of any work first published prior to 1978 that did not contain a sufficient notice has the effect of casting the subject work into the public domain.

Works first published between January 1, 1978, and March 1, 1989, are also required to carry a sufficient copyright notice. However, the law in effect during that time period provided a mechanism for retroactively restoring the copyright to a work that had been released without a sufficient notice. Thus, one cannot be certain that works which do not contain a sufficient notice and which might have been first distributed during this period are available for replication or re-purposing.

A significant change in U.S. copyright law effective March 1, 1989, eliminated the requirement of a copyright notice as a condition of copyright protection. Thus, the absence of a notice on contemporary works no longer eliminates the possibility of a third party copyright claim.

Significance of Missing Notice

U.S. law has been crafted to encourage the use of a copyright notice as a means of alerting potential copiers to the existence and identity of a copyright claimant. For this reason, the law permits those who have been misled by the absence of a notice to raise the defense of innocent infringement. In such cases, a copier who can establish that he or she had a good faith belief that the original work was not the subject of an enforceable copyright claim may be enjoined from further use of the original work but will not be liable to the copyright owner for damages, costs, or attorney's fees.

The Fair Use Exception

The Fair Use Doctrine is a complex exception to the monopoly power vested in authors by the copyright law and is intended to protect the right of reasonable public access to copyrighted expressions for limited purposes.

The copyright statute says "fair use" of a copyrighted work without permission for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. Whether the use is "fair" is determined by considering four factors:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  
  
• The nature of the copyrighted work;
  
  
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  
  
• The effect of the use upon the potential market for or value of the copyrighted work.

The Fair Use Doctrinehas theoretical application to all forms of expression, though it has been most fully developed in the context of literary works -- words -- so we will examine it in that context first.

Fair Use of Literary Works

The best example of the doctrine's application is the right of a book reviewer to quote passages from a book being reviewed without the consent of the book's author and for the purpose of illustrating comments and conclusions in the review.

If you are quoting from the published works of others for the purpose of analyzing, commenting on, or building upon their stated views or theories, then your use probably falls within the ambit of the Fair Use Doctrine. If, on the other hand, you are borrowing an illustration or story excerpt in order to avoid the necessity of creating or writing one of your own, your use is probably not fair use and would require permission.

Whether a given use is fair is a mixed question of law and fact determined by the courts on an ad hoc basis, one case at a time. While there are statutory provisions for library photocopying and legislatively endorsed guidelines for classroom copying, there are no statutory or case law rules of thumb for most commercial purposes.

Word Counts and Cases

A rumor, persistent among authors and editors, has it that the law does provide for a word-count safe harbor -- some say 300 words is the limit, some say 500, some say 1,000, some say 10 percent. Perhaps these notions are the product of misunderstood case reports, or the misapplication of administrative guidelines from other publishers' permissions departments, or the misinterpretation of classroom copying guidelines, or simply wishful thinking. But, suffice to say that none of these rules are grounded in fact. A few recent cases will make the point.

In Salinger v. Random House, 200 words from the unpublished letters of J.D. Salinger directly quoted in an unauthorized biography were deemed to exceed the bounds of fair use, largely as a result of the unpublished character of the original letters. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), 300 words from a book quoted in a magazine article published prior to the release of the book were deemed outside the scope of fair use, in part because the unauthorized publication scooped the book publisher and undermined the value of the first serial rights to the book.

At the other end of the spectrum lies Maxtone-Graham v. Burtchaell, where 7,000 words from interviews discussing unwanted pregnancies in a pro-choice treatment were quoted in a pro-life work critical of the analysis and conclusions reached in the earlier work. The Maxtone-Graham court first paid homage to the single, irrefutable rule of fair use analysis, saying: " There are no absolute rules as to how much of a copyrighted work may be copied and still be considered fair use," before going on to demonstrate the doctrine's flexibility. Here the court was influenced by the motivation behind the second work, intended as scholarly or philosophical criticism rather than as a purely commercial endeavor, in reaching the conclusion that such an extensive use of material was indeed within the scope of fair use.

But as unpredictable as the Fair Use Doctrine is in relation to literary works, it is even less predictable in relation to works expressed in other media.

Fair Use and Other Media

There is a paucity of case law dealing with fair use of expression in other media. There are at least a couple of obvious reasons for this:

• The technology that permits easy and precise replication of existing images and sounds is relatively new
  
  
• The cost of litigating these uncertain issues is very high in relation to the value at risk in these disputes (the plaintiff has to be very angry indeed to consider spending what might easily approach $50,000 to pursue a damage claim for the unauthorized use of a handful of photographs)

There are a couple of relatively recent cases that help illustrate the difficulties of dealing with copyrights in other media:

Heyman v. Salle. This 1989 federal opinion involved an artist who used a 5x7 -photo in a book as his inspiration for a painted stage backdrop that measured 50x30 feet -- without the permission of the photographer, of course. The issue of copyright infringement was before the court on the motion of both parties for summary judgment. The court found that, while there were many similarities between the images, the differences in size, medium, and setting were sufficient to preclude a decision in favor of either party as a matter of law.

Wojnarowicz v. American Family. , This 1990 opinion involved the unauthorized photographic reproduction of fragments of 14 provocative works of art in a pamphlet critical of the public funding of such controversial works by the National Endowment for the Arts. While the artist quite naturally objected to this use of his works to attack the source of his funding, the political nature of the pamphlet coupled with the fact that only a small portion of each original work was reproduced (ranging from 1 percent to 17 percent) convinced the court that the use was fair. What if the pamphlet author had used 25 percent of each work? 45 percent of each work? at what point would we cross that proverbial line? the court does not say.

Guidance like this provides little comfort or shelter for pioneers.

The Guidelines Solution

The need for clearer guidance in regard to the practical application of the Fair Use Doctrine was considered in connection with the last major copyright revision, effected in 1978 (but 20 years in the making). No legislative answer was possible given the powerful competing interests and constituencies, so a group of educators, authors, and publishers was encouraged to reach their own consensus about the permissible bounds of classroom copying which was subsequently read into the Congressional report in March of 1976 as the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals." While not having the full force of law, these guidelines do provide unambiguous direction to educators and to judges who must discern the intent of Congress in interpreting the less explicit statutory fair use provisions.

This set of guidelines was followed by another regarding the "Educational Use of Music" in April of that same year, and by yet another set in September elaborating on the statutory provision permitting interlibrary photocopying. Then, in 1979, we were bestowed with guidelines for off-air recording of broadcast programming for educational purposes.

At present, Fair Use Guidelines for Educational Multimedia are being negotiated by the members of the Consortium of College and University Media Centers Fair Access Working Committee. Perhaps settlement of the fair use frontier is at hand after all.

Full article: Publishing Law Bulletin