Copyright + Fair Use + Public Domain
Navigating The Complexities + Proceeding With Confidence
To quote the American Bar Association: “The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.”
To be very clear, I am not an attorney. But I’ve been a law nerd since college.
Long before Emily D. Baker made it cool to be a “Law Nerd” on YouTube, I took a mass media law class in college that turned me into a bit of armchair attorney.
So with the recent rash of plagiarism and copyright infringement allegations, I’ve been paying attention. I even used the topic for our very first post on Substack.
In addition to creating original art and design, Collide Press curates and sells museum-quality reproductions of art and photography in the public domain. Mostly by Queer Pioneers of yesteryear. Or at least can appeal to The Queer Gayze sensibility.
In collecting digital files for these reproductions, we’ve run into several problems we hadn’t considered before. All are variations on a theme: a basic misunderstanding of copyright, fair use, and public domain.
Even art institutions and corporations can/do get it wrong. Sometimes intentionally. Sometimes not.
Here are a few things to make sure you’re up to speed:
KEEPING IT REAL + COMPLICATED
In the digital age, the intersection of copyright, fair use, and the public domain has become increasingly complex. As creators, consumers, and stewards of cultural heritage, it is essential to understand these concepts and their implications for access to knowledge and creativity.
While copyright protection is crucial for artists and creators, it must be balanced with the principles of fair use and the preservation of the public domain.
COPYRIGHT + FAIR USE + PUBLIC DOMAIN
Copyright grants creators exclusive rights to their work, allowing them to control its use and distribution for a limited time.
Fair use, on the other hand, provides certain exceptions to copyright law, allowing for the limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research without the need for permission from or payment to the copyright holder.
The public domain consists of works that are no longer protected by copyright and are therefore free for anyone to use, reproduce, and distribute without restriction. These works are a vital resource for creativity, education, and cultural preservation, providing a rich repository of ideas and inspiration for future generations.
COPYRIGHT OVERREACH
While copyright protection is intended to incentivize creativity and protect the rights of artists, there are instances where it is wielded in a manner that restricts access to cultural heritage without just cause.
One notable example is the 1999 case of Bridgeman Art Library v. Corel Corp., which highlighted the issue of copyright overreach by art collectors and institutions in asserting control over faithful reproductions of public domain artworks.
In this landmark case, the Bridgeman Art Library claimed copyright protection over high-quality photographs of public domain artworks in its collection.
However, the court ruled that these reproductions lacked the originality required for copyright protection, affirming the principle that exact photographic copies of public domain works do not possess the requisite creativity to warrant copyright.
BALANCING PROTECTION + ACCESS
The Bridgeman case serves as a reminder of the importance of striking a balance between copyright protection and public access to cultural heritage. While museums and publishers have a legitimate interest in protecting their investments and intellectual property, they must also recognize the broader societal value of promoting access to knowledge and creativity.
Copyright overreach by museums and publishers can have far-reaching implications for education, scholarship, and artistic expression.
By unnecessarily restricting access to public domain works, these institutions risk stifling innovation and impeding the free exchange of ideas.
PROMOTING COLLABORATION + TRANSPARENCY
As we navigate the complexities of copyright, fair use, and the public domain, it is essential to promote collaboration and transparency among creators, consumers, and cultural institutions.
Clear guidelines and standards should be established to differentiate between original creative works deserving of copyright protection and faithful reproductions that should be considered public domain.
Additionally, museums and publishers can adopt more flexible licensing arrangements, such as Creative Commons licenses, to facilitate broader access to their collections while still protecting the rights of artists and creators.
These licenses allow for the specified use of copyrighted material, promoting openness and collaboration in the digital age.
EMBRACING COPYRIGHT + FAIR USE + PUBLIC DOMAIN
Protecting copyright, fair use, and the public domain is essential for fostering a culture of creativity, innovation, and knowledge sharing.
While copyright overreach by museums and publishers presents challenges, it is incumbent upon all creatives (and their representatives) to uphold the principles of access and collaboration in the digital age.
By working together to navigate these complexities, we can ensure that cultural heritage remains a vibrant and accessible resource for all.
Thanks for reading!
Clint
IP LAW = REFERENCES + RESOURCES
COPYRIGHT TERM AND THE PUBLIC DOMAIN (Cornell University Library)
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