Law in regards to copyright is often confusing and under-researched. When someone utilizes another person or organization’s creative work, whether there are specific licensing agreements listed or not, the product is copyrighted under The Copyright Act of 1976. The defaulted copyright laws are pretty restrictive, which is the foundation for creating Creative Commons licensing agreements [1, References]. This paper looks at the use of Creative Commons licensing in a theorized scenario; “College Guy(CG) is being sued by “Cooperation Sues A Lot, Inc.(CSAL Inc.)” for copyright infringement on a piece of software they sell. In a startup product of his own, CG used some music and pictures that the program sold by “CSAL Inc.” produced. Now he is being sued for copyright infringement. The original content of the media was released under creative commons. CG’s startup took the material and repackaged it into what they claim is ‘significantly different, so much so, that it is not the same media anymore but proprietary.’”
Under the Creative Commons, there are seven variations on license agreements that a creator can adopt for their creations. Six of these licenses have one commonality: the creator must be credited when using their work for a project. This is defined as ‘BY,’ one of four elements to specify restrictions on creative works. The six licenses are variations of these four restrictions chosen by the creator. The other three options are; SA, NC, and ND. SA, sharable alike, defines that all adaptations to the original work must inherit the same license agreement as to the original. NC, non-commercial, specifies that the original work may not be used or modified for commercial purposes (modification is still allowed under this restriction), and ND, no derivative works, defines the condition against all remixing and modifications of the original work [2, References].
The outlier license of the seven is an agreement to give the work to the public domain. Creative media in the public domain are not subject to copyright laws and are free to copy, remix, and distribute without repercussions of copyright infringement. Every copyright license has an expiration date, and upon this time, the copyrighted work becomes public domain. Most commonly, the copyright of works lasts for the author’s life and an additional 70 years following the author’s passing. Anonymous works created after January 1, 1978, are copyrighted for 95 years following the publication of the work [3, References].
All creative works, whether bound by copyright or not, all fall under the doctrine of fair use as described in section 107 of the Copyright Act [4, References]. After the creation and enactment of the Copyright Act, it was added to the Code of Laws of the United States of America, a database containing 54 titles that thoroughly detail specific regulations, guidelines, and laws for sociopolitical relations.
Fair use is a set of guidelines that permit the unlicensed use of copyrighted content. While creative content may be free to obtain, this does not mean using the content is within fair use guidelines. Section 107 of the United States Code (U.S.C) defines the term ‘fair use’ and explicitly states that “purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright” [4, References]. These are derived from the terms described in sections 106 and 106A. These terms define the author’s exclusive rights regarding the use of their work. These terms inherit their definition from section 102, which states what can be copyrighted and how the original copyright holder’s license is protected only under the original creation. While this is the very bare-bones definition of fair use, the following sections further expand on this concept. There are detailed standards for each media platform, and each medium has a different section. Within section 107, four defined paragraphs allow interpretation of whether something falls under fair use, and 107(3) is the section most often argued in disputes over copyright infringement [5, References].
When thinking about the scenario described in the introduction, it is clear that CG is using the work without the proper licensing agreement; however, one must consider many aspects. Any lawsuit carries extensive litigation and costly fees and can continue well beyond the initial lawsuit. When analyzing this case study, one must identify the specific license CSAL Inc. uses under the Creative Commons.
First and foremost, assuming CSAL Inc. has not chosen to make their work public domain, all licenses under the Creative Commons require the user to cite the author or company which holds the copyright. If CSAL Inc. has the CC-Attribution license, then this case should be able to reach an expeditious settlement where CG cites the work accordingly, and there should be little to no further legal battles. If the license contains the ND element, this case will extend into an uphill struggle for CG. If CG explicitly modified the original creation and published this derivative work, it violates the license directly. This would be a worst-case scenario as CG commercializes the composition and is subject to CSAL Inc.’s incurred damages. This outcome will also be a possibility if the license contains the NC specification. While the modified work is allowed, commercialization is in direct violation of the license agreement. If CSAL Inc. used a restrictive license, the SA option would not necessarily result in significantly excess damages but could dismantle CG’s startup business. This is also under the assumption that CG can continue his work and was not served a cease and desist notification.
The above section handles this lawsuit in direct violation of the Creative Commons license that CSAL Inc. has applied to their work. These are all in favor of CSAL Inc. and offer little to no room for CG to pay minimal expenses while also maintaining the state of his startup. CG could claim he is utilizing the copyrighted work under fair use, which would have the best possible outcome. However, the process will continue much longer than any option in the above section. Furthermore, if the case is lost, the fees incurred would be monumental in comparison.
When approaching a case that claims copyrighted content is used under fair use, one should provide sufficient evidence to showcase the work within every aspect’s guidelines. As stated previously, section 107 of title 17 is the legal dictation of fair use, and it is vital to understand the statements as defined by the Federal Government. For example, when describing purposes that do not infringe copyright, the terms defined after ‘such as’ are not limiting statements. Thus, an argument that CG’s utilization was not infringing copyright but fell under fair use.
The first listed paragraph determines the ‘purpose and character of the use’ regarding commercialization [4, References]. A judge tends to find work that is not commercialized or used in a non-profit organization to fall under fair use more regularly than commercialization, but this is not a determining factor if work falls under fair use [5, References]. The following paragraph is in regards to the copyrighted work. Both of these paragraphs provide a basis for interpreting the law. If the copyrighted work is based on more factual or re-creatable topics, this could prove that the work in question falls within the fair use guidelines. The third paragraph is where the direct comparison between the two creative pieces is conducted and determines what percentage of the original work is present in the use of the work. The last paragraph evaluates the extent of damages that have been established or may be incurred in the future if the work in question falls within fair use. For this case, since CSAL Inc. distributed the original work for free, there should not be much consideration at this step.
All four guidelines are evaluated together and used in conjunction, determining whether the defendant is breaching copyright. For CG, the second and third paragraphs will be the most influential. To create a case with the highest odds of a positive outcome, one should make a defense for each creative work as an individual. The musical compositions will probably be the hardest to claim under fair use [5, References]. As stated in “More information on free use,” as it pertains to the third paragraph, the amount of the original maintained in CG’s composition will have a mixed result with determining fair use, and no case is a guaranteed win nor loss. All judgments are based on the interpretation of the law and should be delivered in detailed, fact-based arguments with evidence to provide the most compelling statement.
Copyright lawsuits are becoming pervasive in the modern world, as everyone can access anything posted by anyone. As such, content creators must obtain a deep understanding of both federal and international laws to keep themselves out of litigation. For CSAL Inc., this lawsuit is probably a drop in the bucket cost-wise and is not their first lawsuit on copyright infringement (Company Sues A Lot). For CG and any other private creator or startup company, this lawsuit can be devastating financially and is probably the first time they encounter a case.
Creative Commons licenses allow everyone to loosen the tight restrictions set forth by the Copyright Act; however, nefarious organizations can abuse the system for financial gain. Both large organizations and private groups can distribute media under a false pretense that their content is licensed under Creative Commons, then sue others for breach of contract or willful copyright infringement [6, References]. This deception can give copyright licenses a notorious reputation, even though these licensing agreements are supposed to make copyright laws easier to comprehend and utilize for one’s creative work. The user must investigate everything, and due diligence is necessary to prevent litigation.
Researching the topic of copyright was dumbfounding as the legal jargon and lengthy documents made navigating the laws exhausting. I was relatively familiar with the U. S. Code, but I never investigated the copyright laws. As I was reading these articles, I made connections to famous lawsuits on copyright and fair use in mainstream media, such as the case Matt Hosseinzadeh v. Ethan Klein and Hila Klein. This case was a lengthy battle between two YouTubers, H3H3 Productions and Matt Hoss Zone. Matt Hosseinzadeh sued Ethan and Hila Klein for copyright infringement as there were many videos on H3H3 productions which had videos of Hosseinzadeh. The case ended as a victory for the defending party, as H3H3 Productions used the original media for commentary and criticisms. However, this victory did not protect the defendants from tens of thousands of dollars in legal fees, not to mention the years it took to reach a verdict. This example is just one of many about copyright infringement, and lesser-known people are prey for this type of frivolous litigation.
[1] Creative Commons. Creative commons certificate for educators, academic librarians and GLAM, (2021). Accessed: September 21, 2021. [Online]. Available Here.
[2] Creative Commons. “About CC licenses.” Creative Commons. Available Here (Accessed on September 21, 2021).
[3] “10 Copyright laws you have to know.” Laws. Available Here (Accessed on September 21, 2021).
[4] United States Code. 17 U.S.C., Copyrights. [Online]. Available Here.
[5] U. S. Copyright Office. “More information on fair use.” Copyright. Available Here (Accessed on September 21, 2021).
[6] S. Vondran. “Is violation of creative commons license a breach of contract or copyright infringement?” Vondran Legal. Available Here (Accessed September 21, 2021).