The University Record, November 23, 1998

Copyright decisions can be ‘gut-level,’ says attorney

By Kerry Colligan

Copyright law is confusing. It strikes fear in the hearts of many.

To illustrate the level of fear—and ignorance—surrounding copyright, Susan Kornfield, an attorney at Bodman, Longley, and Dahling, L.L.P., tells the following anecdote.

She received a letter from a mother requesting legal counsel. The mother wanted to reprint a poem in its entirety. What could save her from obtaining permission to use the work? She wanted to reprint the poem for her daughter. It seems she was one stocking stuffer short.

To understand copyright, Kornfield said, an English history lesson may be in order. The Statute of Anne, adopted in 1710, set the foundation for copyright as it exists in the United States today. The Statute grants copyright to authors for a limited time. “Copyright arose by virtue of an author creating a work, not by virtue of the book being published. It did not follow the movement of the book. There was a distinction made between the copy and the copyright,” Kornfield said.

Those ideas resonate in the U.S. Constitution, she continued. Article I, Section 8 outlines the powers of Congress to include the 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.”

History lessons aside, the reality of copyright is that many people do not understand what rights they have, nor what rights they must respect when using someone else’s work.

Copyright can be viewed as a series of conditional statements, and there are a few rules that govern those statements. First, copyright is held originally by the author of the work. Second, the term of the copyright extends for the life of the author plus 70 years, at which time the work enters the public domain.

If the work exists in the public domain, it is fair game. Public domain works are those for which the copyright has expired, or those for which the author has transferred copyright to the public domain. Think here of the Mona Lisa, Beethoven compositions, the U.S. Constitution. That’s the easy part.

If it’s not public domain, the use must be evaluated against the “fair use” limitations. Four criteria must be weighed in determining if a use is fair: the purpose of the use, the nature of the copyrighted work, the amount used, and the effect of the use on the potential market for the copyrighted work. The difficulty is that “fair use,” generally, has not been interpreted by the courts as an all-or-nothing clause. Just because the entire work was used does not intrinsically violate the fair use clause.

“It’s a gut-level response,” Kornfield stated. In litigation, she added, all parties involved can agree on the purpose, nature, amount and effect of the use and, because the factors are weighed differently, reach different conclusions about “fair use.”


What should every scholar know about copyright?

It’s complicated. There are many untruths spread about copyright. Susan Kornfield, attorney at Bodman, Longley, and Dahling, L.L.P., dispelled many copyright myths at a brown-bag lecture sponsored by the Institute for the Humanities last week.

Kornfield offered advice on contracts, interpreting the fair use clause, copyright guidelines and clearance centers. Some things to watch for, she said, include:

• Contracts with no drop-dead publication date. It is often stipulated in the contract that if the publisher does not make certain efforts to publish and promote a work by a certain date, the rights are returned to the author.

• Contracts that transfer all rights of publication with no specific mention of derivative works. Often times, according to Kornfield, an author will transfer all rights of copyright to a publisher when the publisher has neither the intent nor the desire to publish derivative works (e.g. reproduction of the same work in a foreign language, editions of a work, multimedia reproductions, etc.).

• Copyright law makes no mention of the amount of a work that can be used. Most guidelines are policies, not reiterations of the law. “When you look at how much you use, ask what the purpose of your use is. Don’t copy any more than fulfills the purpose for which you are copying the work,” Kornfield said. “Many people are making decisions based on a policy designed to avoid lawsuits, rather than on copyright law.”

• Use of a work for such purposes as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research are not a violation of copyright, but these uses should be evaluated against the “fair use” clause.

“You can’t assume that because someone makes money off the use of something, that it is illegal. A lot of people think that if you’re using something in a commercial context, it’s going to be an infringement. It will weigh against you, but it’s not, per se, an infringement,” she said.

• Copyright clearance centers are a scam set up by the publishing industry, Kornfield said. Clearance centers establish fees for use of materials in exchange for a “guarantee” that your use is “fair use.” The problem, Kornfield said, is that publishers want money for use when, often times, that use is legally permissable and free. The question, she continued, is should you pay for certainty when someone else’s copyright can already control your use?

More information on copyright is available at the University Library Copyright Information Web site, www.lib.umich.edu/libhome/copyright/index.html, or from the Technology Management Office, 764-4290 or http://tmo.umich.edu/.


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