When you use the images, sounds, stories, texts, or techniques of others you are using intangible materials. Often such materials are protected by intellectual property rights, and when they are not there may be ethical, political, and/or cultural issues to consider before you decide to use the materials. These issues may also dictate particular treatment of intangible materials when you do use them.
We have become particularly conscious of the legal issues raised by the use of intangible materials both because of digitization and because of growing demands for self-determination of the use of cultural materials from around the world. The latter is often referred to as “cultural heritage” – or even just “heritage” – when discussed legally. The use of intangible materials created by the government is a legal issue known as “access to information.”
U.S. copyright law does allow artists to use the intangible materials of others, even when protected by intellectual property rights, when certain conditions are met. When those conditions do not apply, you must acquire the right to use copyrighted material. And when you acquire those rights, you must be specific about what you are going to do with the material because copyright protects five different aspects of works.
Fair Use
An introduction to the law regarding fair use and related rights. This website contains a number of additional detailed guides pertaining to various aspects of copyright; all will be of value to artists who use intangible materials.
Fair Use Network
http://fairusenetwork.org/reference/freeexpip.php
A portal to discussions of fair use specific to different art forms, including collage, parodies, and those who distribute their content via podcast.
Fair Use Network
http://fairusenetwork.org/reference/usersubjects.php
Many artists today prefer to shape their own conditions under which their works can be used rather than using a standard copyright agreement. Flexible tools created by those in the “commons” movement make this easy to do. This site explains the commons approach and the diverse types of licenses available as well as offering the tools you need to use a commons license for your own works.
Creative Commons
http://wiki.creativecommons.org/FAQ
This searchable database makes it possible to find intangible materials you are free to use either for commercial purposes or to create “derivative works” – works that use these materials in the creation of your own works.
Creative Commons
A 2003 overview of the range of intellectual property rights of importance to documentary filmmakers. The same issues are of importance to a lot of other content creators.
Center for Social Media
http://www.centerforsocialmedia.org/documents/Intelprop_kizirian.pdf
An explanation of decisions made by a documentary film-maker regarding when to claim fair use and when to purchase rights for use in the course of making a specific film. Includes pertinent film clips.
Center for Social Media
http://www.centerforsocialmedia.org/news/refrigerator_mothers/
Numerous film associations have endorsed this set of fair use best practices for documentary film-makers. Every example of a case in which a documentary film-maker lost in court over claimed fair use involved a decision of which those documentarians who developed these best practices would not have approved.
Center for Social Media
FAQ:
Full report: Documentary Filmmakers’ Statement of Best Practices in Fair Use
Teaching Scenarios:
Because there are so many different types of copyrighted works and the lengths of time when a copyright might be in effect, it can be difficult to determine whether or not any given work is in the public domain or not. This is a chart summarizing what material was in the public domain in the United States as of January 1, 2005.
Center for Social Media
http://www.centerforsocialmedia.org/rock/backgrounddocs/copyrightterm.pdf
Digital rights management (DRM) technologies, which prevent users from downloading or sharing materials to which copyright owners believe the users have no right, are explained here. The discussion also introduces a number of dimensions along which different approaches to DRM can be compared. The “quick reference chart” summarizes these dimensions on one page.
Center for Democracy and Technology
full text:
quick reference chart:
The “broadcast flag” is a combination of technical and legal techniques for preventing unauthorized redistribution of televised programs. This primer explains how the broadcast flag works and what its implications are for fair use.
Center for Democracy and Technology
http://www.cdt.org/copyright/20031216broadcastflag.pdf
Trademark
Sometimes the intangible materials an artist may want to use are protected by trademark law rather than by copyright.
Basics of trademark law as they affect how artists might use material protected by trademark.
Fair Use Network
http://fairusenetwork.org/reference/tm-claims.php
Access to Information
Freedom of information – meaning the right to access government records and the necessity to conduct government meetings in the open – is a matter of law. This website provides information about the basics of the pertinent laws, discusses how they affect areas such as privacy and the courts as well as how they can be used in your own life, and explains how to go about getting access to information.
Society of Professional Journalists
http://www.spj.org/opendoors1.asp?
The current status of the law regarding declassification of documents dealing with national security-related aspects of U.S. history.
National Security Agency
http://www.nsa.gov/public/publi00003.cfm
Cultural Heritage
A review of law and policy dealing with cultural heritage in the United States. Pages 7-20 offer an executive summary.
Keith Donohue/Center for Arts and Culture