Bound By Law: Tales from the Public Domain explores the “twilight zone” between intellectual property and the public domain. As described in the novel, this is the “mysterious realm where material is free for all to use without permission.” The novel explores the importance of understanding just exactly what constitutes one from the other.
The book begins by identifying our culture as containing a plethora of works that are protected by intellectual property rights, including music and photographs. Over time, material has become increasingly protected. The novel accurately discusses how complicated the idea of intellectual property is, relating it to a “minefield.”
So how do you know what is copyrighted and who “owns the rights?” A law instigated twenty-five years ago now protects all creative works, and if no copyright notice is found it is the duty of the individual to find the owner of the work. Only work published prior to 1923 or by the federal government “where the copyright has expired” are undoubtedly in the public domain. Some exceptions are found between the years of 1923 and 1977 for many published works in which authors did not follow regulations that would have made their work copyrighted. However, it is unrealistic to except individuals to track down this information.
More specifically, there are exceptions within copyright law such as the “fair use” rule, which allows the use of copyrighted material without obtaining permission from the rights holders (examples include commentary and criticism). Importantly, some distributors require clearances anyway because the line is often blurry as to what constitutes “fair” use. The novel refers to this as a “game of blind man’s bluff.” Fair use law of today infers that individuals do not need permission for information that is parenthetically captured. As seen in the provided examples of the old filming of Marylyn Agreld and Amy Sewell’s “Mad Hot Ballroom,” not having fair use law was a major problem in older days, resulting in consistent vicious circles of suing. Today, fair use law has come a long way, participating in the rise of a new “rights culture.” Filmmakers especially take advantage of this law, commonly citing material in their films under the fair use law as incidental. However, not everyone agrees with the seeming flexibility of this law.
There is a particular procedure for using material protected under copyright law. Attaining rights “in perpetuity” can be very costly and many filmmakers that don’t have much money, resorting to short term licenses. For example, the well-known “Eyes on the Prize” documentary was taken out of circulation because its owners could not pay to renew its expired license. This goes to show the seriousness of copyright law.
Importantly, copyright does not protect ideas alone but particular “expressions” of ideas. The goal of copyright law is to inspire people to create new works that they can feel comfortable circulating, knowing they are protected. Copyright law gives the following rights: to make copies and adaptations, to translate, to publically dispense, to publically present and to publically perform. These rights give copyright holders a certain degree of freedom over their work. Some copyright holders chose to offer their work within a creative commons license, which I will discuss in more detail later. Some filmmakers will defer their copyright ownership to other distributors, promoting them to make partnership. Copyright law helps owners control their work in a way that can give them monetary profit, and also provides them with the materials needed to create their work.
Copyright law strikes a careful balance between protecting artists’ work and “ensuring the availability of raw materials for future creation.” Copyright law achieves this in several ways. One important aspect is that in the creation of films, much of what is filmed is considered to be copyrightable expression.
Several historic, precedential court cases have contributed in the creation and development of copyright law. A couple of cases include Sony v. Universal Studies (1984), which made home videotaping of TV shows fair use. A more recent case is Suntrust vs. Houghton Mifflin (2001), in which “Gone with the Wind” from the point of view of a slave became fair use. In all of these cases, the court ruled that the purposed uses were “transformative.” In other words, the content taken wasn’t to entertain but to use as commentary or criticism.
Bound by Law explains that we used to have a “thin layer of intellectual property protection surrounding a large and rich public domain.” Now, there is no longer a healthy balance between what is and is not protected. Trademark law helps mediate this imbalance, protecting brand names and logos which inform buyers where products originate from. The book also discusses a first amendment exception allows you to show individuals involved “in matters of public interest, without permission.” This rule is especially critical for documentary filmmakers such as Michael Moore. Some filmmakers go ahead and assume they will be sued, attaining E&O insurance. Importantly, E&O insurance is only required for documentaries that will be shown on conventional TV channels.
In summary, artists and filmmakers need to thoroughly understand copyright law, being aware of their rights and the rights of others. The copyright system allows for the protection of your work, but also limits the ways in which you can create your work. A benefit of this system is clearly that your work is protected from being stolen by others. In this way, you can feel fairly comfortable in widely circulating your work. However, a drawback is that the materials you have to create your work in the first place are regulated-you cannot just take/borrow anything. These advantages and disadvantages therefore work hand-in-hand. As stated in the novel, “to preserve the system, we have to preserve fair use.”
What is creative commons?
Creative commons is a nonprofit organization promoting the sharing of creative works under the conditions of the user’s choice. Users choose from a variety of CC licenses which allow for a flexible, easy change of copyright terms to meet an individual’s requests (for example, you can choose for your work to be available for non-commercial use only). To clarify, instead of all rights being reserved, some rights of your work are reserved depending on your own set conditions.
Importantly, Creative Commons licenses work alongside copyright-they are not an alternative. There are several licenses available, including Attribution, NonCommerical, ShareAlike and NoDerivatives.
A benefit of Creative Commons is that you make your work available for others to work off of. Through this process your work becomes more circulated and well-known. Another benefit is that for people using CC, they are protected from copyright infringement as long as they abide by the rules you have specified in your license terms. A potential drawback is that people could still go against the set terms, exploiting your work. Another possible drawback is that if you later revoke your license, anyone who still has a copy of your work from when the license was active can continue to use/spread that work.