Permission of an Author or Copyright Owner is NOT always required

From: Roland Cole <cole[_at_]>
Date: Fri, 27 Jan 2006 15:20:00 -0500

Speaking as a lawyer, who has taught Copyright Law, and as a writer - several books, numerous articles - one MAY have a right to use copyrighted material WITHOUT the copyright owner's permission. (Note that the copyright owner is often NOT a "starving artist" but a giant publishing company.) 17 USC 106 sets forth the exclusive rights of the copyright owner, "SUBJECT TO Sections 107 through 122" [emphasis added]. All of the items in sections 107 through 122 are LIMITATIONS on the copyright owner's exclusive rights. NONE of them require the permission of the copyright owner.

The question here is whether the student's use falls within one of the exceptions, and the closest appears to be "fair use" set forth in 17 USC 107. Courts balance the four factors set forth in 107, and the illustrative purposes set forth there (criticism, comment, teaching, et al.) in various ways, so one is always making a probabilistic prediction of how a judge or jury would rule, but there are strong arguments that the student is using the images to comment on them for teaching purposes, and the harm to the copyright owner, whoever that is, might be slight.

But the statement that permission of the author is "always required" is just completely wrong on legal grounds - it is the copyright owner, who may not be the author, who is involved, and the owner's exclusive rights are subject to limitations. I would argue that requiring permission of either the author or the copyright owner in all cases would be wrong on moral grounds as well - one should not expect the author or the copyright owner to consent to someone writing a scathing criticism of the work, and quoting portions of it to demonstrate why the criticism is valid, and the law, wisely in my view, does not require the critic to get such permission.

Roland J. Cole, J.D., Ph.D.
Executive Director
Software Patent Institute
5315 Washington Blvd
317-727-8940; cole[_at_];

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]] On Behalf Of Dodi Schultz Sent: Thursday, January 26, 2006 12:40 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Distribution of personal study guide

"Amy" writes:

>> Student has created a word document that contains images from the
>> web and added his notes to it. He did not credit the web sites that
>> he obtained the images from. He originally created this as his
>> study guide for an art class. He now would like to give a CD of
>> this to interested classmates (under 30 copies) to assist them with
>> their studies. He is not charging them for it. Does this fall
>> under acceptable use under the copyright laws?

Speaking as a writer, not a lawyer--no way. Whether he lifted words or images and whether or not he is charging a fee to the folks to whom he's distributing this material that isn't his: He has no right to use the material without the copyright owner's permission.

--DS Received on Sat Jan 28 2006 - 01:20:00 GMT

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