Copyright in Your Personal Life

This post is based on a talk I gave/conversation I had today at the “Enhancing Quality Staff” symposium. I love this symposium, because I get to wander away from academic copyright issues, and there’s always a ton of cool people who want to wander with me! This time, the session description promised discussion of yearbook photos, family papers, and crafts and hobbies. Here is (roughly) what we talked about – apologies for the all-about-me-ness of the examples – but hey, it’s about your -personal life-, right?

Legal Super-Basics

You are currently a copyright owner. So is everyone else. Copyright owners and consumers are not actually separate groups, it’s all cyclical.

cat sprawled across two pet beds captioned Dis mine dis also mineA lot of people get very possessive about “their” stuff, but want to easily use other people’s stuff. Realistically, you can’t have both of those things. IMO, owners relaxing ideas about what they want to control usually works out better for everyone, including the owner.

(Incidentally, I intentionally used the lolcat image -because- I could not figure out who owned it or where it came from. I did a search to try to find the original, but there are just too many copies of it (with a bunch of different pieces of text) out there in the world.)

Copyright owners get to control roughly four things: making copies, distributing copies, public performances or displays, and making derivative works. But they do not -always- get to control those things.

Finally, the law does not care very much about attribution or credit. But -people- do care A WHOLE LOT about that. In a lot of copyright situations in your personal life, community norms and practices, individuals’ feelings, and interpersonal relationships may well be more important than law.

Familiar-ish Reasons You Might Be Able To Use Stuff You Do Not Own

Not a copyright issue – i.e., you’re doing something that isn’t one of the things owners get to control. Reading a book aloud at storytime at a library is a public performance, and may be a copyright issue (though it may be legal as a fair use or for other reasons.) Reading a book aloud to your kids, grandkids, cousins, babysittees, and/or their friends in someone’s home seems like a very similar activity, but because it’s not -public-, it’s just not a copyright issue.

Explicitly legally permitted: the thing you’re using is in the public domain, or there’s a narrowly-tailored copyright exception that covers your activity, or your activity is fair use, or you have a license or explicit permission!

We also side-tracked here, thanks to an insightful audience comment, into the fact that, sometimes, a license may -prohibit- uses that would otherwise be permitted by copyright law. Worth noting when you agree to terms of use!

More Obscure Reasons You Might Be Able To Use Stuff You Do Not Own

De minimis use

large blob of blue-grey pixelsI copied the above image from an image related to a current blockbuster movie! I did not think twice about the copying, because that is -just so little of the original- that if anyone were to complain about it, I could respond that “de minimis non curat lex” – “the law does not concern itself with trifles.” (Thanks to Greg Cram for the pixel-copying as an example of de minimis use!)

We actually have moved away from the de minimis doctrine in copyright law, especially with the music sampling cases that developed the theory that a single-note sample required a license. But recently courts have actually been a bit more receptive to it: the District Court judge in the Georgia State case said that readings that had been copied and uploaded to a server, but which had not demonstrably been downloaded or used by any students, were de minimis uses – wiping out the infringement claim without even considering fair use. (P. 93 of the opinion PDF.)

Still desperate to know what those pixels actually are? Benedict Cumberbatch’s eye.

Some Stuff Is Not Copyrightable

Specifically, facts, data, ideas, and useful objects. Recipes are a great example of this: you can own the pictures you take of your dish, you can own your lyrical description of the smell of it baking, or the texture of the ingredients between your fingers. You cannot own the basic information that if you put these various things together in this order and in these ways, and then heat (or chill or freeze or whatever) them for this long, you get this food.

I think this is a lot more applicable in the crafting and hobby worlds than the community practices of those worlds recognize. I’m pretty sure, for example, that this excellent sewing pattern is not copyrightable.

pattern drawing for sewing a swiffer cover

The blog post with all the great pictures showing how to put together your eco-friendly reusable reversible swiffer cover, on the other hand, is definitely copyrightable.

The crafting community has a lot of people in it who are very certain they own their sewing, knitting, crochet, cross-stitch, cabinetry, or other patterns. Many of those creators do freely share the patterns for personal use but ask that folks not use them for products for sale. Others (including commercial pattern producers) are extremely possessive of their patterns or instructions, even when there is little difference from a recipe. Community norms and practices are pretty important here, as is giving credit (though sometimes the community norms about that are quite different from, say, academic attribution standards.)

Implied license

When a content owner provides you with tools to perform a certain action:
NyTimes sharing menu

(Every New York Times article includes tools to save, email or print the article.)

…or a product that contains copyrightable content is sold with a particular intended use:

handmade gift tag

(My friend Leah uses scrapbooking supplies to make gift tags & greeting cards.)

…you get to do those kinds of things with it. Implied licenses are messy, because they rely on what the reasonable expectations are of the various people (owners, users, etc) involved. But they’re actually pretty important to a lot of silly little incidental uses, especially at the personal level.

Applications: Family and/or Personal History

I know I own one of these four images of me:

several photos of meAppearing -in- a photo is actually a good indicator that you may not -own- the photo – technically, the photographer usually owns the copyright in a photo. I took the upper-right photo, the bottom two were taken with my camera, but by (right) a stranger, and (left) a friend (although I’m not sure whether Matt, Kathleen, Ruben, Erin, or…) The top left photo was taken by a family friend, who sent me a print, that I later scanned.

I guess my point with these images is that in our personal papers, and those of our family members, there are going to be a lot of things that neither we nor our relatives legally own, copyright-wise – but which are -ours-, in a lot of very meaningful ways. Most of these technical “copyright owners” will not care at all what I do with these images. Sometimes, trying to get all the little copyright details right, especially for personal mementos like these, is just a little ridiculous.

But there’s also a lot of personal mementos that might be owned by people – or companies – who might care just a little bit more. School pictures, studio portraits, newspaper clippings – these may also feel “ours” – but they may have real owners that really care what we do with them. My understanding is that most school photos these days come with instructions that you’re not supposed to share them on social media, for example.

Older school photos, though…

two school photos of me

(First Grade, Eighth Grade – is putting these online fair use?)

What about old family portraits (painted or photos)? Or letters from your grandpa to your grandma? Inheritance law affects who actually owns copyrights to stuff -created- by your family members – but family papers may include tons of stuff that no one in your family owns, but everyone feels they have a right to control. Interpersonal relationships are really key with this stuff – you know your family best. And, as one session participant said today, you know best whether you want to get along with them, or tick them off!

Applications: Crafts and Hobbies

To the extent that patterns or instructions are copyrightable at all, it’s because of whatever original creative expression they contain. I don’t think either this onesie (embroidered by me for a friend’s daughter)…

red baby onesie embroidered with the words commie punkOr this cross-stitch pattern (which I created by tracing a map of the Mississippi River through Minneapolis)

cross-stitch chart of Mississippi river…contain enough original expression for me to own any copyright in either (though each was quite a bit of work.) When I added hearts plotting the locations of my friend’s favorite bars in Minneapolis, that maybe would reach copyrightability.

But, by and large, that is not really how the crafty community thinks about patterns. I’ve seen patterns clearly inspired by pop-culture, with very little additional expression from the creator, that had “I own this, you can only use it on my terms” written all over them.

baby onesie embroidered to look like a star trek uniformI’m pretty sure that various parties that own the rights to Star Trek, own the rights to this – (and yet, since ownership and legal use are two entirely different issues, I’d go so far as to suggest that that’s possibly a de minimis use of Star Trek copyrights.)

This kind of thing can get ugly and messy, as with the recent situation when nerdy retailer ThinkGeek started selling “officially licensed” Jayne hats (from the TV show Firefly) – and the rightsholders (not ThinkGeek) then started shutting down the booming crafty microbusinesses that had been selling handmade Jayne hats. The semi-commercial nature of selling a craft product based on a cultural reference – especially when those sales are tolerated (even encouraged) by rightsholders for years – makes the legalities very cloudy, and can upend community norms and mess with people’s reasonable expectations.

There are lots of other wonderful examples of craft works based on third-party content – more than half of the “Sunday Sweets” cakes featured on present fascinating questions of fair use and transformativeness – the more so when they’re created by a commercial bakery. Are cosplayers who strive for authenticity on firmer, or more questionable legal ground than those who put a creative (transformative?) spin on a character?

We didn’t have time to get into many questions, though one great one that was posed to me afterwards was – does my kid need to get a license when he and his friends play music at a nursing home? Our personal lives extend in many directions, and intersect with copyright almost everywhere we go!

In summation…

This post, and today’s talk, barely brushed the surface of all the many ways copyright may rear its head in our personal lives, but I think these various examples demonstrate the many ways in which copyright law is not well-constructed to deal with individuals – as owners, as users, and in all the other ways we interact with content.

Right about now is when I’m thankful for the clarity of Creative Commons licenses.

embroidered stick-figure comic stripAdapted (yes, by me) from “1337: Part 4” CC by-nc Randall Munroe.

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