In each case the question of whether there is a copyright infringement requires a review of the law and the facts of the case. We did this after a few minutes of enquiry last month triggered by a Google Alert informing us that one of our articles has been adapted.
Questions arose. Was the unauthorised adaptation an infringement? Should prior permission have been sought from us? We’ll discuss these in the context of copyright law applicable to adaptation of copyright material made without permission.
This post ends with a practical copyright infringement checklist.
To begin with, to make a copyright claim you need a copyright work.
A copyright work is a literary, artistic, musical or other work which is not in the public domain. Usually this means that copyright has not run out, like it did at midnight on 31 December 2008 for certain Popeye works.
To make a copyright claim, the copy must be an infringement.
At the mundane level, the extent to which a copyright work can be copied or adapted varies with the context, including:
- how much is copied or adapted (eg number of words etc)
- the use for which it is copied (private study or research, news reporting etc)
- the applicable industry conventions or standards (if any) for the relevant industry or sector.
Frequent changes in technology, copyright law and copyright-related practices make the question of copyright infringement more complex.
With safe harbour laws, trackbacks, deep linking and hyperlinking a clear shift is taking place. Where once copyright law and practices compelled users to first seek and obtain permission before any use or adaptation, now the belief (usually false) has arisen that it’s OK to copy or adapt a copyright asset without prior permission and to then remove the infringement if the asset owner issues a take down notice.
This shift empowers copyright users relative to copyright owners. With digital recordings (especially on the internet) the sting (ie financial and legal threat) is gone. With analogue recordings or recordings on physical media (eg video tapes, CDs, DVDs, printed books, printed magazines and other merchandise) the sting is potentially there because a copyright user may have to pulp its unauthorised or infringing merchandise. Further, until a matter is resolved, the merchandise may be blocked from transit out of customs or out of a warehouse.
So what is an adaptation under copyright law? A copyright work which recently came out of copyright helps explain.
Coming out of copyright at the same time as Popeye was the 1915 Australian classic book, The Songs of the Sentimental Bloke, by C. J. Dennis (1876-1938).
The work helps us illustrate the notion of adaptation in business and in law.
The 1915 Dennis book has been adapted numerous times. It earned revenue from the:
- 1919 Raymond Longford and Lottie Lyell silent film
- 1932 Frank Thring film
- 1950s musical by Albert Arlen
- 1976 TV adaptation
- 1985 ballet adaptation based on the Arlen musical.
I’m familiar with this history because in my first job, as in-house counsel at Angus & Robertson Publishers, I negotiated or drafted contracts for the book and licensing of the 1985 ballet adaptation.
So here’s our recent experience of being adapted or copied on the web. A new item on the web uses several blocks of text copied or adapted from a Dilanchian article. The text is from our long timeline – Digital music technology and copyright timeline.
The adaptation is a nicely illustrated, minimal text slide show style timeline. It has been created with parts of our text combined with text and graphic material from others. It is titled Technological and Legal Changes in the Music Industry.
If we were not happy with the adaptation, we could threaten legal action under copyright law. We have an arguable case. Arguably prior permission should have been sought. These observations answer questions posed at the beginning. Their legal basis can be stated briefly.
- Copyright law includes a right to make a fair dealing with a copyright work (the similar, but more user-empowering American copyright law concept is “fair use”). There are many limitations on what can be copied under the Australian concept of fair dealing.
- A credit has been given to us for our article. However, credit or promotional exposure provides no “get out of jail” card for infringement of copyright.
- The law gives copyright owners the legal right to block an adaptation of their work. Under the Australian Copyright Act 1968 (Cth), one of the exclusive rights of a copyright owner is “to make an adaptation of the work”. It is contained in section 31(1)(a)(vi). This adaptation right is commonly used when for example a book is made into a film (see the Dennis examples above), or a film into a video game.
- Under US copyright law, adaptations are referred to as derivative works.
It seems the concept of adaptation or derivative work is broader than the more recent concept of mashups.
In common use the term mashups seems to be used very broadly. The most relevant Wikipedia definition of mashup (it has a number) is mashups (digital). Interestingly this definition restricts mashups (digital) to works which largely use a common Application Programming Interfaces. If you agree with the Wikipedia definition, then the astonishing Fair(y) Use Tale on YouTube by Professor Eric Faden of Bucknell University is an adaptation or derivative work, not a mashup, of copyright works by Walt Disney.
If you are unhappy with copying or adaptation of your work here’s a checklist. There are six key questions to ask to determine whether a formal permission is needed for use of the literary work of another, or to determine whether there has been infringement, or to determine how much of a work can be legally copied.
|Copyright Infringement Checklist|
If the answer to all these questions is “yes” then infringement exists. Demand the infringer to cough up. If pain persists call your lawyer.
The first photo is of C.J. Dennis and is from Australia’s National Film & Sound Archive .
The illustration is from The Sentimental Bloke, a CD with a score by Jen Anderson for the 1919 silent film.