Copyright & The Great Moral Debate

On October 22, 2013

Copyright is an ever-evolving discussion on legal and moral rights and responsibilities, especially as regards creative work specifically, and is constantly misrepresented in areas of questionable morality. I will preface the following information and verbiage by stating I am in no way versed on copyright law and know only what I’ve read, at its face value. I have no experience with, or expertise of, court cases in which law has been expanded, overturned or created. This article is not intended to be all-inclusive nor to be a substitute for professional legal advice. These notes concern the copyright law as defined by the United States, and is non-transferable to any international legal system, and may not protect your rights across borders. To better represent the fickle beast that is copyright law, and to further this discussion, please feel free to share your opinions, experiences and sources in the comments.

.First, lets define what is covered by copyright law. Chapter 1 of the law, titled “Subject Matter and Scope of Copyright”, states, in Section 102, that original works of authorship which are “fixed in any tangible medium of expression”, can include the following categories: literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, motion picture, audiovisual, sound records and architectural, and are protected by the law as dictated by the United States legal system.Photographs, tutorials, books, paintings are all protected under copyright law. That means, when a photo is pulled from Google search, for instance, and altered with  promotional slogans, poetic or inspirational quotes, or clip art, the user is (in essence) violating, unless where a release of rights has occurred, the copyright of the photographer. When a tutorial is purchased and re-sold by the purchaser, without the express written consent of its creator, the purchaser is in violation of the author’s copyright. When an ebook is purchased, then shared (in full) on a personal blog, the blogger is in violation of the author’s copyright. These are only a few examples, but hopefully sufficient in expressing the scope of the law.

One argument, especially as concerns digital content in an electronic age, is that “Fair Use” protects the user from legal recourse. Here is what the law has to say about “Fair Use”. Chapter 1 (Section 107) “Limitations on exclusive rights: Fair Use”:

“Notwithstanding the provisions of sections 106 and 106 A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copy righted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Unfortunately, this means there is a very undefined distinction between what is fair use and what is infringement. No number of lines, words or amount of notes or general content are specified to be taken without permission and be free from legal repercussion. This, essentially, is a “proceed at your own risk” variable in the copyright law, and is determined per case. Ever heard the creative rule of derivatives, “alter 10% of a design”? Well, that’s, at best, a theory not supported by the law and, at worst, a gross and intentional misrepresentation of the law to excuse the theft of creative property. Are designs protected by copyright? According to Chapter 13 of the copyright law, “Protection of Original Designs”, the short answer is yes. Section 1301 notes protection is afforded “….an original design of a useful article which makes the article attractive or distinctive in appearance” with designs defined as “original” when “it is the result of the designer’s creative endeavor that provides a distinguishable variation over prior work pertaining to similar articles which is more than merely trivial and has not been copied from another source”.

Recently I was shocked to read a statement declaring a piece of jewelry unoriginal because “the technique has been around forever”. However, according to Chapter 13, Section 1302, protection extends to original creative works except when: “(the design is) not original; staple or commonplace, such as a standard geometric figure, a familiar symbol, an emblem, or a motif, or another shape, pattern, or configuration which has become standard, common, prevalent, or ordinary; different from a design only in insignificant details or in elements which are variants commonly used in the relevant trades; dictated solely by a utilitarian function of the article that embodies it; or embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 2 years before the date of the application for registration under this chapter.”

This means it is not the technique that is protected, but the original combination of techniques. And, quite frankly, the required “difference in design” is often an undefined specification determined only by a court of law. Though you can, of course, feel free to execute a design using an unoriginal combination of techniques, this design may not be protected by copyright law if decided it is a standard example of the art form or form of expression.

So, we know copyright covers the expression of an idea (Chapter 1) and covers an original design (Chapter 13), but does it cover the content of a tutorial? We know it covers the images and the verbiage, but Chapter 1, Section 102(b) states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”, therefore excluding the process of creation from protection. Here is an amazing and thorough article discussing why copyright is not extended to procedures and processes.

What does this mean? This means the finished design in a tutorial is protected (possibly) by copyright, the images and written instruction are protected, but the steps used to achieve the design are not. You could, legally, share (best in carefully controlled quantities), the process of creating a piece of jewelry, as described in a tutorial (or book even). You cannot use the images, or the verbiage, as set forth by the author, but you can express the process in your own words with your own images, in whatever platform you prefer. However, because copyright is transferable to the finished piece, sharing the process can be a slippery legal slope.

Also on the subject of tutorials, texts or books, can the author of a tutorial or set of instructions limit its use? In some cases, yes, and is best represented by the paragraphs on “Fair Use” already discussed. The reach of any legal action is determined per case and is based on the specifics of the use. In other words, why risk it?

And really, that’s where the discussion of copyright brings us. Inevitably, it is always a discussion of ethics. Can you alter 10% of a design and fail to credit the originator? Can you purchase and teach the tutorials of others for profit? Can you copy because “there is nothing new under the sun” or “it’s all been done before?” Perhaps. But why would you?

I refuse to believe, in a world as full as ours, in a society of unique individuals with budding creative spirits, that there are no new things. There is always another direction to take an existing idea which doesn’t infringe upon the rights of another. To say otherwise is to perpetuate a cloak of laziness which smothers the spirit of creativity. Though technique has been around, in many cases, for centuries, eons even, there is always an innovative combination of techniques waiting for discovery.

Alternatively, don’t jump to conclusion that your rights have been maliciously violated. Take a deep breath. I know it’s a natural knee-jerk reaction to protect the creative project and the energy with which it was born, but not everyone is a greed goblin riding the coat tails of success. Don’t insist that because this one bead is placed in this one position, just like yours!, that you have been violated by the lawn gnomes of duplicity. Don’t insist everyone credit you with “inspired by” because their designs are swirly and your designs are swirly so they owe you a perpetual string of praise. Accolades are nice, and deeply appreciated by most everyone, but sometimes, voices are simply similarly expressive.

Or, how about this? Just ask. Has your design been copied? Would you like to copy a design? Ask for clarity. Ask for permission. Ask for ideas and the right to utilize those ideas. Encourage a conversation with other creative minds, and don’t be afraid to just ask. Every artist or teacher supplies a Terms of Use and, whether legally binding or not, it is never beyond our capability to extend a little human courtesy and respect that someone else, quite frankly, did it first. There is a world of inspiration waiting for you to notice it, to give it form. Move on and embrace it.

Or, simply put, just ask.