FAIR USE AND QUOTING
FROM COPYRIGHTED SOURCES
WHAT IS FAIR USE
• Notwithstanding the provisions of sections 106 and 106A,
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 purpose such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. (Title 17
Section 107)
• (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 copyrighted work. (Title 17 Section 107)
WAYS OF QUOTING COPYRIGHTED
WORKS
CITATION FORMATS
• APA (American Psychological Assoc.)
• AMA (American Medical Assoc.)
• MLA (Modern Language Association)
• Uniform
• Chicago/Turabian: Author-Date
• Harvard
CITATIONS & REFERENCES
IN ACADEMIC PAPERS
• Organize potential references during the writing. (Prior publications
that help you define your topic or contain details of methods you
applied or support your results) (Annesley, 2011)
• References in your paper should be accurate and add to its value.
(Annesley, 2011)
• Make sure every citation has a reference and every reference has
been cited appropriately before submission. (Annesley, 2011)
SHEPARD FAIREY
Shepard Fairey
Street Artist & Graphic Designer
• Born: February 15, 1970
• Education: Rhode Island
School of Design
• Internationally recognized
artist with work in The
Smithsonian, Museum of
Modern Art and the
National Portrait Gallery.
http://orig09.deviantart.net/5229/f/2009/036/3/c/shepard_fairey_by_zombieaters.jpg
https://designerspotlight.files.wordpress.com/2014/09/shepard_3.jpg
http://bomit.com/stickerblog/wp-content/uploads/2011/03/4.jpg
• Came to prominence with the Andre The Giant Has A Posse sticker
campaign.
• Fairey began this campaign as a experiment in phenomenology (Fairey,
1990).
• In 1993, Titan Sports Inc. (now World Wrestling Entertainment, Inc.)
threatened a lawsuit against Fairey. Titan Sports owned the copyright to
the Andre The Giant character (Vallen, 2007).
• Fairey responded by significantly altering the Andre the Giant image
and adding the title “Obey” to the poster.
• Fairey based this campaign on the John Carpenter film “They Live.”
• This campaign became the basis for Fairey’s company and career
(Vallen, 2007).
http://www.andysowards.com/blog/assets/obey-giant-graffiti-sticker.jpg
https://cellbcondominiums.files.wordpress.com/2015/02/obey-logo.png?w=194&h=300
• One Big Union, artwork
created for the Industrial
Workers of the World labor
union in 1917.
• Original image created by
Ralph “Bingo” Chaplin.
http://libertyalliance.com/wp-content/uploads/2013/06/laborunion.jpg
• Image altered by Fairey for
his Obey Clothing line.
• Chaplin was not credited for
his original work.
• Fairey then had this altered
imaged copy written (Vallen,
2007).
http://www.art-for-a-change.com/Obey/obey_iww.jpg
• Poster created by Rupert
Garcia for the African
American Civil Rights
Movement in 1969,
juxtaposed by Fairey’s
altered image (Vallen, 2007).
http://www.art-for-achange.com/Obey/obey_rupert_garcia.gif
• Photograph by Pirkle
Jones taken for the Black
Panther Party in 1968,
juxtaposed with Fairey’s
altered image (Vallen,
2007).
https://digcopright.files.wordpress.com/2008/12/
picture-10.png
• Poster created by Rene Mederos
depicting Cuban revolutionaries
Che Guevara and Camilo Cienfuegos
in 1972 (Vallen, 2007).
http://www.art-for-a-change.com/Obey/mederos_che.gif
Statement sent to Fairey and the
Bombing Science Outlet by artist
Lincoln Cushing:
"Please be advised that the 'Cuban
Rider' t-shirt you have listed for sale
is a direct copy of a poster by Cuban
artist Rene Mederos, and is an
unauthorized violation of his work. I
work closely with the Mederos
estate and have represented them
in several arrangements for use of
his work. Given that your item is
violating the intellectual property
rights of another artist, you can do
one of two things - either negotiate
with Rene Mederos' estate for a fair
royalty (assuming that they will
grant it) or you can immediately
stop production of this item and
remove advertising from the public.
Please let me know how you wish to
proceed."
Altered image by Fairey:
http://www.art-for-a-change.com/Obey/obey_moderos.gif
• Design was pulled from the website.
• All royalties were sent to the Mederos
estate.
• Fairey never publicly apologized or
admitted to stealing the artwork for his
purposes (Vallen, 2007).
Obama Hope Poster by Shepard Fairey:
• Created in 2008 independently by
Fairey but later endorsed by the
Obama Election Campaign
• Distributed both digitally and through
physical mediums (posters, buttons,
etc.)
• Acquired by the Smithsonian Institute
in 2009 (bbc.co.uk, 2009).
Image Courtesy Esquire Magazine : http://esq.h-cdn.co/assets/15/22/1432843145obama-hope-poster1.jpg
• The Associated Press brought a civil suit
against Fairey which was settled out of
court.
http://www.wired.com/images_blogs/threatlevel/2009/10/picture-32.png
• Criminal charges were brought against
Fairey for the creation of false
documents and destruction of evidence
during the civil trial.
• Fairey was ultimately sentenced to two
year probation, a $25,000 fine and 300
hours of community service .
(thesmokinggun.com, 2012).
http://blog.livebooks.com/wpcontent/uploads/2009/02/mannie_garcia_obama.jpg
Suggested "best practices" for
using the graphic artwork of
others :
• Admit that you are using
preexisting art.
• Anticipate the exposure of the
piece.
• Do your research.
• Ask for permission.
• Give specific credit on the final
piece (Cushing, 2007).
Writers (or their estates) often charge
very high fees for inclusion in works
like anthologies
For one anthology, the WH Auden estate
charged approximately $20/line of poetry
W.H. Auden by Carl Van
Vechten. Public domain
photo.
Sylvia Plath’s estate wanted $3500 for 4
poems, so her poems were cut from the
final product
Kevin Dettmar argues that the estates are
influencing the canon (in potentially
negative ways for the writers they
represent)
Source: Dettmar, 2006
JD Salinger sets precedent
In 1987, Salinger sued over an
unauthorized biography that quoted
from unpublished letters (Coughlin,
1989).
The letter recipients had donated the
letters to universities, which is how the
biographer had access to them (Marks,
1997). The federal appeals court
“seriously limited the ability of
researchers to quote from unpublished
documents in their work” (Coughlin,
1989, p. 2). Judges decided that
because letters are unpublished they
have “virtually unlimited copyright
protection” (Coughlin, 1989, p. 2).
Photo by Ryan McGuire. Gratisography.com. Used under CC0.
Copyright is often used for privacy
rather than economic reasons
• Valerie Eliot, wife of T.S., “has withheld the
balance of his letters…for almost two
decades” and has resisted any biographies
being written (Max, 2006, p. 36).
• Marianne Moore’s niece “demanded that a
biographer remove all quotations from the
poet’s unpublished letters” (Max, 2006, p. 36).
The James Joyce estate, managed by Joyce’s
grandson Stephen fiercely protects Joyce’s
intellectual property.
“If you want to write
about James Joyce and
plan to quote more than
a few short passages,
you need Stephen’s
consent” (Max, 2006,
p.35).
Public domain image
Examples of Stephen Joyce’s
management of Joyce’s works
• Stephen Joyce wouldn’t allow a composer to use 18 words
from the 600+ page Finnegans Wake because he “did not like
the composer’s music,” causing the composer to lose his
commission fee (Spoo, 2012, p. 89).
• An Irish anthology wanted to include an excerpt from Ulysses,
but the estate wanted over £7000. Publishers included the
excerpt anyway so Stephen sued them; they ended up
publishing blank pages saying that the text was missing due to
a copyright dispute (Spoo, 2012, p. 93-4).
• “Rejects nearly every request to quote from unpublished
letters” (Max, 2006, p. 35).
Photo by Andrew Pons used under CC0
• One academic worked on a multimedia Ulysses over 7
years; Stephen refused to allow the project to go
forward; wanted $1.5 million in fees (Max, 2006, p. 36).
• Stephen said: “’You should consider a new career as a
garbage collector in New York City, because you’ll
never quote a Joyce text again’” (Max, 2006, p.36).
Debate over whether Ulysses was
already in public domain in US
According to Robert Spoo, copyright
law at the time Ulysses was
published in France (1922) required
that Joyce send a copy to the US
copyright office within 2 months,
and then publish the book in the US
within 4 months. Due to charges of
obscenity, the book was not
published in the US until 1933. Joyce
“testified in 1926…in Paris that he
had never tried to secure American
copyright” (Dettmar, 2006, p. 2).
Source: Dettmar, 2006
James Joyce [Public domain], via Wikimedia Commons
• In the late 80s Stephen Joyce claimed he
destroyed the letters his aunt wrote him, as
well as correspondence to his aunt from
Samuel Beckett. Said that he had not “yet”
destroyed any letters or papers James Joyce
had written. Source: Max, 2006, p. 34
Carol Loeb Shloss, a Stanford professor, wrote a
book about James Joyce’s daughter Lucia.
Stephen threatened litigation over letters
included in the book, so she removed them from
the publication. Feeling that many of her
arguments were blunted due to the removal,
she sued the Joyce estate. Lawrence Lessig was
one of the lawyers who represented her.
Source: Max, 2006
• Shloss used a new defense: “Copyright misuse”
• Stephen Joyce’s threatening letters helped her
case
• Shloss won the ability to use the material as well
as $240,000 in lawyer fees, $10,000 of which
went to a fund for her scholarship
Source: Spoo, 2012
• In 2012, all of the works Joyce published in his
lifetime entered the public domain in Europe.
(Not included: posthumous publications,
anything unpublished) (O’Connell, 2012).
• In the US, Dubliners & A Portrait of the Artist
as a Young Man are out of copyright
(O’Connell, 2012).
Video production company The Glossary took the
audio from David Foster Wallace’s 2005 Kenyon
commencement address and made a video
https://vimeo.com/68855377
Photo
Photo
by Ryan
by Ryan
McGuire.
McGuire
Gratisography.com.
gratisography.com.
Used
Used
under
under
CC0CC0
.
Source: http://www.adweek.com/adfreak/story-behind-water-inspiring-video-people-cant-stopwatching-149324 (5/9/13)
Adweek asked The Glossary about how they got
permission. They replied, “Sometimes it’s better
to ask for forgiveness than permission.”
Source: http://www.adweek.com/adfreak/story-behind-water-inspiring-video-people-cant-stopwatching-149324 (5/9/13)
The David Foster Wallace Estate asked
them to remove the video.
Source: http://www.adweek.com/adfreak/story-behind-water-inspiringvideo-people-cant-stop-watching-149324 (5/9/13)
Best Practices
for Quoting
from Works
Photo by Ryan McGuire. Gratisography.com. Used under CC0
•
•
•
•
•
Ask permission
Know the estate’s temperament
Do the 4 part Fair Use Test
Be careful in regards to unpublished letters/works
Know your rights
FUTURE OF FAIR USE
NEW HORIZONS FOR FAIR USE
• Fair use might become more broadly applicable in later years of a
work’s copyright term. (Samuelson, 2015)
• Courts might characterize the fair use doctrine as creating “user
rights”, not just providing a defense to claims of infringement.
(Samuelson, 2015)
• Fair use law might be made acceptable (again) to speak of First
Amendment interests and values in fair use cases involving critical
commentary. (Samuelson, 2015)
• Future fair use cases might take into account fair use best practices
guidelines that have been developed by certain communities of
practice, even when the guidelines were not negotiated among all
interested stakeholders. (Samuelson, 2015)
CONCLUSION
• Uncertain future.
• Evolve continually.
• Keep approaching the proper balance between copyright
owners and the public interest. (Samuelson, 2015)
• Legislative reformulation and private industry-wide
agreements between users and owners are necessary.
(Leaffer, 2001)