Feb 232015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Today, we tackle the third criterion of the Fair Use doctrine: the amount and substantiality of the copyrighted material used in the new material.

The amount of the original used is pretty straightforward. If you use the entire copyrighted work, you need a license or legal permission. If you aren’t, then courts will review how much of the original copyrighted work you are using against how you’re using it and why you’re using it. For those who enjoy gaming systems, there really is no magical number here; it really does depend on how you’ve met other Fair Use criteria. I’ve seen people try to claim “points of difference” (enumerating the ways your work deviates from the original), but there’s no actual law supporting that. If you find yourself trying to argue points of difference in your work, stop. The only reason someone does that is because they know they’re in the wrong and trying to assuage their guilt. Your best options are to make right what you know is wrong, or to drop it and move along.

Substantiality is a bit more challenging, and not just because that’s a hard word to say…or type out, for that matter. What’s really being looked at here is how important or significant is the selection from the original copyrighted material. If your material is incorporating the most important or significant parts of the original, you’ve created a situation that threatens the original’s market value (which we’ll cover in the next post). If someone can see the best parts of the original in your new creation, why would they need to see the original? You’ve effectively just spoiled it for them.

The best advice I can offer here is: If your gut is telling you you’re doing it wrong, you probably are. Stop. Take a step back from your work. See if there’s another way to accomplish your goals without violating someone else’s copyright and without trying to turn yourself into a whiny victim.

Feb 162015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

The second criterion for the Fair Use doctrine concerns the nature of the work. The new work, that is. How will this new material be used? Why is it being created? These are important questions in establishing whether or not something is Fair Use.

Is this new material being created for factual purposes, like research or teaching, or is being created for artistic reasons, like adaptations or remixes? Historically, new material being created for factual purposes have legally secured the right to use copyrighted material under Fair Use more often than material being created for artistic reasons. It’s almost easier to see and understand when something is being used in a limited, factual manner than when it is being used in a broad or creative manner, making the ruling easier.

If the material, factual or creative, is intended to be consumed, like workbooks, then it is not protected by Fair Use, and the creator has to go through licensing channels if they want to use the material. If the source material is unpublished, then the author’s right of first publishing comes into play and it becomes much harder for the creator of the new material to prove Fair Use.

Feb 092015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

In this section of our discussion on copyright, we’re looking at components of the Fair Use doctrine. Today, we’ll focus on how the purpose and character of the use affects whether or not it’s covered by Fair Use. When we talk about purpose and character in this context, what we’re really talking about is the purpose the copyrighted material is serving in the new material, and whether or nor the new use brings a new meaning to the copyrighted material.

Ideally, this criterion is designed to protect legitimate uses of copyrighted materials in news reporting, research, and teaching, situations where a verbatim copy might be necessary for accuracy or citation purposes and as such, could be seen as not infringing on the original’s copyright. But even scholarly and nonprofit groups using copyrighted material can find themselves running afoul of the Fair Use doctrine if all they are doing is copying without bringing any sort of commentary or transformative use to the original material. It is interesting to note that you can quote a source verbatim with all of the appropriate citation conventions, and still violate the source material’s copyright.

Those incorporating copyrighted material into commercially available projects can fall under the Fair Use doctrine if they follow all of the rules, but historically they have had a more difficult time securing that protection because the new project has the potential to affect the original material’s market impact, which we will be looking at in another post. If the creator can prove that they are using a copyrighted material in a transformative manner that conforms to the Fair Use criteria, then they do have a chance of gaining that protection.

Feb 022015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

So far, we’ve looked at copyright and ways to legally work within a copyright holder’s rights. Now, we’re going to turn our attention to one of the most confusing aspects of copyright law: the Fair Use doctrine. Under Fair Use, copyrighted material may be used under certain conditions for a specific set of reasons without requiring the copyright holder’s permission or procuring a license.

To be eligible for Fair Use protection, copyrighted material must be copied verbatim, and only used for criticism, comment, news reporting, teaching, or research. In each case, the use must be limited and transformative. For example, creating a parody or satire where the purpose is criticizing or commenting on a given situation can potentially be protected by Fair Use as it transforms the work by providing commentary. Using someone’s music in a YouTube video cannot because it in no way transforms the music, nor is it a limited use of the music.

If the material is being used in one of the acceptable ways, then other considerations come into play. The nature of the copyrighted work and the purpose of the copying material are taken into consideration. The amount of the original work used in the copying work is considered. And the effect of the existence of the copying work on the marketability of the original piece is looked at, including the author’s right of first publishing in cases where the copied work is unpublished.

The next few posts will be looking more closely at these considerations, but there are some outstanding resources on Fair Use that you ought to give a look if you are a remixer looking to stay on copyright holders’ good sides.

And finally, BYU has a Fair Use checklist that does a pretty fair job of helping those incorporating copyrighted materials into their own work sort out what is most likely Fair Use and what isn’t. Even if you’re feeling pretty confident, take advantage of this great resource!

Jan 282015

I know this comes as a great shock to longtime readers, but I keep lists of things I want to learn (organized by general skillset). And periodically, when I find myself with an opportunity to start a new project, I will peruse the list to see if I can make the project a learning experience. One of the skills that’s been on the lists (because it really applies to most of my working skillsets) forever is “learn how to develop an episodic story”.

This might seem a bit odd. I mean, I used to release stories chapter by chapter to FFNet and Fiction Press. And Dead Bunny was a long series, built piece by piece.

But neither of those was particularly “episodic”. In the case of the chaptered stories, the story was usually written all together before I started posting it (the exception being my fanfic “After Hours”, where chapters were often written just hours before they were posted because Writer’s Block and I were uncomfortably chummy at the time) and I was just posting each part. In the case of Dead Bunny, while some skills link together and build off each other, it’s not strictly speaking an episodic project.

I did take a stab at organizing an episodic project several years ago. But having a framework to play with couldn’t make up for the fact I couldn’t make up my mind over the story I wanted to tell. The project was eventually trunked, and is now in pieces all over the place. If I ever get it into my head to try that project again, it’s going to be painful.

When I decided to motivate myself to start writing again, I fell in with a group where some people shared parts from current or old works-in-progress and others create serial projects specifically for the group. As the point of this group is to help support, encourage, and critique each other, both types of project made sense. Lessons learned on one project should be applied to other projects.

I started out sharing scenes either from a work-in-progress I’m trying to reboot or from writing prompt responses written for other groups. But I quickly ran into problems. The work-in-progress isn’t rebooting smoothly for a number of reasons, and some weeks I just couldn’t get excited about the offered writing prompts. It left me with nothing to post, and that felt counterproductive to my intent to get back on a regular writing schedule.

So I took a story idea I’d had lying around forever, decided to help my work-in-progress by setting the story in the same world, and started working on a short-term plan to begin a serial story. At the time, my notes on how to build an episodic story consisted of: An episode has four parts – beginning, middle, end, and hook. I decided if I just wrote the story like a chaptered short story (Yeah, I know.) with each “chapter” being written and posted each week, it would be about the same thing.

For two arcs (as I call my “chapters”), it held up pretty well. But as I’ve been working on my digital presence, I’ve wanted to share the story more places. And that led to several conversations with myself recently about whether or not to try to catch up the newer spaces, or continue to let them lag behind. But this has become an issue because, as any writer knows, the longer you let writing lie around with the belief it’s not finished, the more you want to pick it up and give it just one more edit. It’s writer nature. And it’s not the most productive thing when you’ve got a fair number of projects on your plate.

But playing catch-up isn’t always the most efficient thing, either, and that led to my sitting down recently with a calendar and mapping out where the first set of postings are in the story versus where the second set of postings are, and what it would take to get them into a better position. That meant figuring out what the typical life cycles of an arc and the episodes within are, and what could be adjusted to make everything fit together well.

It turns out that I have to do very little to bring the two into a better schedule, so I’m going to spend February working on that. But in finally sitting down and working on these life cycles and my writing schedule and my production schedule (because part of developing these arcs is trying to sort out the cover art for some of the sites) has me now thinking about adding a production calendar dedicated solely to this project to help keep things cycling right along.

Jan 262015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Despite the fact digital and new media have been around for over a decade, in the grand scheme of things they’re still a very new frontier and as a result, copyright mistakes happen frequently and often. Most of them stem from a misunderstanding (or a flat out lack of education) about how copyright affects digital media. But it’s thanks to digital media that so many of us are getting an education in how copyright really works at all.

Why is digital media such a thorn in copyright’s side? Remember that copyright is assigned at the moment an artifact becomes tangible. Digital artifacts never really become “tangible”. We can hold printed versions of online material. We can hold artifacts that house this material. But we cannot actually hold the material itself. Digital media never achieves a tangible form. In 1976, the copyright law was modified to accommodate other non-tangible artifacts, namely broadcast media, movies, and music, by adding the condition “fixed”. So, for the last almost forty years, the moment something is fixed, or set into a given medium, it gains copyright protection. The precedent was there to extend the same rights to digital media, but it took longer for non-technical governing bodies to wrap their mind around the idea that fixing something in bytes wasn’t much different than fixing it in celluloid. In fact, it wasn’t until 1998, when the highly abused, highly controversial DMCA was signed into law, that digital artifacts gained the same status as broadcast media, movies, and music and were guaranteed copyright protection.

Ideally, that should have been that. The five rights granted to non-digital creators were extended to digital creators. Done.

Not so done. While the law exists to protect digital media, none of us is born with that knowledge and for some reason we’re reluctant to teach it beyond a “Don’t plagiarize Wikipedia” lecture in English and history classes. Outside the classroom, copyright education seems to come when someone gets caught violating someone else’s copyright, and even then we don’t turn it into the learning moment it needs to be. That’s not entirely helpful. I will never forget working with a high school student one day, who told me she had copied information from the internet because it’s public information. I had to explain to her the difference between public domain (an aspect of copyright we’ll get into later on in this series) and publicly accessible. It was difficult for her to wrap her mind around, and she was an intelligent kid, because she had never been exposed to that before.

Even in the public domain narration work I’m doing, there are adults who don’t understand that difference and find themselves challenged when they try to perform something that is protected by someone else’s copyright. Pinterest users also get friendly little reminders periodically when they pin something a copyright holder would prefer not be shared through any site they cannot personally control. Pinterest is pretty good about honoring the copyright holder’s request and gently reminding users who have the pin to respect copyright.

What’s important here is to remember that digital artifacts are considered “fixed” and therefore have copyright protection, even if the copyright symbol is not visible. That means you cannot legally distribute, perform, copy, or create derivative works from a digital artifact digitally or otherwise without the copyright holder’s permission. It also means that you cannot legally take a non-digital artifact and recreate and distribute it digitally. If it’s not yours, keep your life simple and don’t copy or share without permission.

Jan 192015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

While many creators are grateful to have the protection offered by copyright, some creators aware of this remix culture that’s been developing over the last couple of decades find them too restricting. You can either enjoy the full protection of copyright, or you can release your creation to the public domain. It’s just not a practical situation for creators, remixers, or consumers.

Fortunately, in 2001 Creative Commons was established. (This site is an excellent resource for questions about copyright, public domain, and all levels of protection in between.) The goal of Creative Commons is to offer creators the ability to tailor a creation’s copyright to best suit the copyright holder’s intentions, and they make a point of keeping up with remix culture trends to help navigate those rights. Under Creative Commons, a creator can choose to retain all of their rights, or to share a set of rights. Anyone wanting to use a work protected by a Creative Commons license can only use it under the conditions set by that license. For example, if the license is by-sa, then another person can use your work only if they attribute it to you and share their work under the same Creative Commons license. (Notice that all Creative Commons licenses require that users keep the source attribution with the work.)

It’s nice because it opens up an artifact to become part of the creative conversation legally. Even nicer, some creative repository sites (like YouTubedeviantArt, and Flickr) support Creative Commons and have the licensing baked in, meaning when you post to one of these repositories, you can choose to release your work under the license appropriate to your needs.

Sadly, although Creative Commons has been in existence for nearly fifteen years, there are still a lot of misconceptions about how it works. Not surprising, given the confusion people generally have regarding copyright. So, if you aren’t sure, either just abide by the full copyright laws, or contact the copyright holder and ask.

Jan 122015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

I admittedly don’t have practical experience with licenses beyond Creative Commons, so anything from here is derived from research. Fair warning.

If the previous posts have got you down about using copyrighted materials in your own work, never fear. There are ways to use a copyrighted artifact legally. First, if the artifact is released under a Creative Commons license, you can use the artifact if you abide by the license. Second, you can contact the copyright holder and ask to license the artifact. Like the Creative Commons license, a license secured directly from the copyright holder will tell you what you are and are not legally allowed to do with the artifact. Licenses will often also tell you where and how long you may use the artifact. If you use it in any other way, you have violated the license, and the copyright holder might not react favorably.

Licensing an artifact can give it a new life, which can be helpful when the artifact is passed from cultural memory. But no matter how much the licensee alters and brings more to the artifact, the copyright holder can revoke the license (revisions included) at any time. Licensing can be a treacherous road, but it can also be worth it. Tread cautiously.

I realize that was really a glossover. If you would like to read more, here are some great links on licensing and transferring rights.

Jan 072015

I don’t know what’s going on in these “Social Media Best Practices For (insert your creative field here)” webinars and courses I see listed, but I’m somewhat confident that they don’t actually teach best practices for hanging out on social media. But that’s just based on the clumps of people I run into on social media who all seem to use the same moves. The problem seems to stem from not understanding the difference between marketing and networking, and being generally uncomfortable using social media for some reason other than sharing with friends and family . (At least, I’m hoping this isn’t how they use social media with friends and family.)

Let’s start with marketing, since I see a lot of this on a daily basis as fellow creatives follow me on social media spaces. I’m one of those weirdos who doesn’t just follow back people who follow her (and I don’t expect to be followed back when I follow). I take the time to go look at the person’s profile, read their posts, and see who we have in common. But if the person’s stream is nothing but various takes on “Buy my work”, clearly posted by some automated service, or punctuated by replies that thank people for following/sharing, then no number of people in common will encourage me to follow back. And if the other person thought about it, they’d probably realize that they don’t follow people who do that (or do, and resent that person for filling up their stream with all of their marketing posts with no other posts whatsoever).

The other type of marketer that confuses me no end is the creative who posts “Buy my work” links to industry groups. It’s great that you’ve completed something and released it into the world, and fellow creatives who aren’t battling self-esteem issues will be happy for you. But unless your new release is something that would benefit the development of their own work and career (and you’re posting to a space that allows for that kind of promotion), they aren’t your target audience. And you’ve just told them you aren’t even competition because you don’t know how to accurately identify a target audience.

There’s a difference between, “This is my new project. Go buy it and tell all your fans, family, and friends to buy it,” and , “So, I just did this. It was really (adjective) because (opaque process talk).” One you say to your fans; the other you say to fellow creatives. If you can’t sort out which is marketing and which is networking, read other people’s posts and don’t say anything until you figure it out. Because you know when you are being marketed to, and you know you don’t necessarily enjoy it. It works both ways. Keep that in mind.

And while we’re on the topic of knowing whom to market to, don’t be this guy. Earlier this year, I auditioned for an audiobook because it was the right genre, age group, and performance requirements for me, and offered an acceptable compensation. I continued auditioning and working, and eventually received a generic rejection note for this project. Such is the life of an audiobook narrator. Some months later, the author sent me a message that effectively read: I don’t know if I sent you a personal rejection letter, but you’re clearly a fan of my work because you auditioned for this project. My narrator is awesome and we just released this awesome audiobook, and you should buy it and tell all your fans to buy it. (Parts of that are sadly not paraphrased.)

There aren’t words for how many things are wrong with this marketing approach, but it’s an excellent illustration of misunderstanding your audience. Unless someone who has expressed an interest in working with you has explicitly expressed an interest in the actual project itself beyond just working on it because the Help Wanted ad sounded interesting, don’t assume they’re some mega-fan and don’t market the product you rejected them from to them. That’s just tacky.

All right. One last point, and then I’ll stop. I want to talk about the act of serial adding and dropping. You’ve seen these people on nearly every social media platform. You might even be one of them. These are the people who go through tools, “friend of a friend” lists, and topic lists add everyone in sight, and then drop anyone who doesn’t add them back within a given (usually short) period. There are a few reasons people do this. They want to build their numbers by snagging anyone who autofollows or manually follows back everyone who follows them, or by snagging bots. There is no connection. And more often than not, the serial add/dropper suffers from some of the behavior I described above. It’s annoying to watch it happen on your own list, and I’ve recently noticed Twitter has started identifying people who engage in that behavior as trolls and suspending or terminating their account. (Sadly, I noticed it because two serial add/droppers who have been dogging my digital footsteps for the better part of a year have both started adding and dropping me from whole new Twitter handles.)

The thing about social media is that it’s really about building relationships. Having the most bots follow you, or annoying people you’d rather have as allies, isn’t how you “win” at social media. If you’re ever unsure about that, find someone you feel gets the results from social media you wish you were getting, and quietly watch their moves. You’ll learn a lot, and alienate fewer people.

Jan 052015

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Between narrating public domain audiobooks, reading fan fiction, and just creating and publishing work on internationally available platforms, I have some experience dealing with copyright. Experience I find myself sharing regularly. So, I thought I’d make my life easier, and just create a series of blog posts sharing what I know (or am aware of, in some cases) about different aspects of copyright. But it turns out there are a lot more facets to copyright than I thought when I first sat down to work on this series, so…this is going to take a while. If it helps people better understand copyright, and what their rights are as creator, remixer, or consumer, then it’ll be worth it.

Since we’re at the beginning, though, why don’t we start with the basic question: What is copyright?

Copyright is essentially a legal protection extended to creations that lays out a specific set of rights for creators. Copyright is conferred on a creation when it is fixed in a tangible form, and remains for a period laid out by copyright law at the time the creation came into existence. (This is the single most challenging aspect of copyright, because the laws have changed quite a bit over the last century. At the time that I’m writing this, copyright lasts for the duration of the creator’s lifetime, plus ninety years.) A creation’s copyright exists, regardless of whether or not the copyright symbol is visible.

Under current copyright law, a creator (or copyright owner, if it isn’t the creator) has the exclusive right to make copies of the work, to make derivative copies, to distribute the work (original, copy, or derivative), and to perform or display the work. If you are not the copyright holder and you do anything on that list, you have violated the copyright and may or may not be in for a world of legal hurt. Some creators take copyright violation very seriously.

Over the next several posts, we’ll get more into various aspects of copyright, including ways to work legally with a copyrighted work, how copyright affects digital media, and how copyright affects international distribution of material.

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