NEW YORK — A judge has dismissed copyright lawsuits between an artist who created the Barack Obama “HOPE” image and The Associated Press but has left a March trial date in place for related claims between the news service and companies that sold merchandise using the artist’s image.

U.S. District Judge Alvin Hellerstein said in a one-page order publicly filed Tuesday that a “suggestion of settlement” led him to dismiss claims between artist Shepard Fairey and the AP. He said the claims could be reinstated within a month if either side requested it.

The judge said other claims between the AP and Fairey-related companies that manufactured or marketed products based on the image will be put before an eight-person civil jury on March 21. Lawyers on all sides did not immediately return messages seeking comment Tuesday.

The dispute stems from an AP picture taken in 2006 when Obama, then a U.S. senator from Illinois, was at the National Press Club in Washington.

Fairey used the photograph when he created his artwork during Obama’s 2008 run for the presidency. In 2009, he sued the AP, seeking a court declaration that he did not violate AP’s copyrights when he made the Obama image.

The news cooperative countersued, saying the uncredited, uncompensated use of its picture violated copyright laws and was a threat to journalism.

Last year, it was disclosed in court that Fairey was under criminal investigation after he said he erred about which AP photo he used as a basis for “HOPE.” He also had acknowledged that he had submitted false images and deleted other images to conceal his actions.

The red, cream and light-blue images show a determined-looking Obama gazing upward, with the caption “HOPE.”

It was unclear how a dismissal of claims between Fairey and the AP would affect legal fair use arguments over whether Fairey altered the original image of Obama enough that he did not infringe the AP’s copyrights.

Court papers submitted by lawyers for the AP and makers and distributors of apparel and other merchandise using Fairey’s image suggest that those arguments to some extent will remain part of the case.

Lawyers for clothing manufacturer One 3 Two said in court papers that the “total concept and feel” of the AP picture and the Obama image were different. They said that while the AP picture “depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey’s street art.”

The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey’s images as it sold apparel and other merchandise using the art.

In papers filed last week, the AP said the case presents “the straightforward question of whether a T-shirt company may use a nearly verbatim copy of a copyrighted image to generate millions in dollars of revenues for itself without securing the permission of the copyright owner.” The company called the legal issues “garden-variety copyright infringement matters.”

The AP said the T-shirt company, Obey Clothing, between March 2008 and September 2009 sold approximately 233,800 pieces of merchandise bearing an image that copied the Obama photo.

The AP wrote that Fairey’s image was a “nearly verbatim copy” of the Obama AP photo, incorporating the “protectable expressive elements in the photo almost entirely – down to the twinkles in then-Senator Obama’s eyes.”

Our PDFs are DRM free because we trust our customers to do the right thing. Reasonable sharing, as you would do with a print book, is allowed. You are free to copy and paste and print the document for your personal use. You are not allowed to place the content on a server for downloading, and you should purchase a site license if you wish to share the PDF with a group of developers on an Intranet.

If we could ask Christopher Marlowe, he might say “yes.” OTM’s Mike Pesca, however, argues that most readers today take an Elizabethan approach to intertexctuality:

“Plagiarism is constantly in the news these days, as it was in 2006 when Harvard student Kaavya Viswanathan’s How Opal Mehta Got Kissed, Got Wild, and Got A Life was exposed as less then original. But, as we know, claims of literary plagiarism go back centuries. So why do people still get so worked up about it? Mike Pesca reflects on the past, present and future of plagiarism.

Meanwhile, Slate editor Jack Shafer discusses the dirty dozen excuses for plagiarism cited by journalists who are caught out:

Slate editor-at-large Jack Shafer has been covering the plagiarism beat for some time and he’s found that throughout every scandal the excuses remain the same. On the heels of two plagiarism scandals last month, he talks about a list of twelve common plagiarism excuses he calls “the dirty dozen.”

Follow on Twitter: @on_the_media

via Columbia College Chicago : Glass Curtain Exhibition Archive.

Fair Use is a multimedia exhibition that looks at how the copying, sampling, and recycling of existing material is being used as a creative tool in contemporary culture. The exhibition sets out to foster discussion through the examination of work by contemporary artists and designers who develop alternatives to the way we share ideas, images and objects. Participating artists include:Tyler Avery, Sze Lin Pang, Line Langballe and Christina Okai Mejborn of Totem Collective, Guy Ben-Nur, Pratchaya Phintong, Seth Price, Mark Holmes, Ethan Huber,Joseph Willis, Superflex, Salter/Snowden and Siebren Versteeg. Curated by Brandon Alvendia.

As the song by Aqua goes, “Life is plastic. It’s fantastic.” You can quote that much and claim the protection of fair use. Appropriate much more of the song, or the iconic 50-something doll the song celebrates, and Mattel’s IP police may come knocking at your door. The Learned Fangirl makes a compelling case for teaching “an entire intellectual property class” based on  Barbie case law involving “copyright, trademark, and trade secrets.” Exhibit A is the New York Law Revue’s mashup of Bar/Bri Girl ,which conflates Aqua’s song with the Bar/Bri bar exam prep course. Who said kill all the lawyers?

In 1996, the U.S. Copyright Law (Section 121) was amended to allow authorized entities to reproduce or distribute copies of previously published nondramatic literary works if the copies were reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities. The AAP identifies the purpose of the Chafee Amendment as

“[elimination of] the need to compensate or obtain permission from a copyright owner, and thus save resources and provide greater efficiency, in the process of reproducing and distributing certain copyrighted works in formats that are accessible to persons who are blind or otherwise have difficulties making conventional use of print materials.”

Prior to the amendment, long delays often prevented blind and other students with disabilities from receiving accessible formats of the print material available to their peers and required for success in their educational program. The Chafee Amendment was passed to facilitate the creation of accessible formats of print materials for the benefit of these students.

Defining an authorized entity:

The Chafee Amendment defines an “authorized entity” as a nonprofit organization or governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities (emphasis added).9 Read broadly, colleges’ and universities’ disability services departments should be included within this definition. Colleges and universities are nonprofit organizations whose primary mission is to educate students, including students with disabilities. That mission can only be accomplished when full access is accorded all enrolled students.

The AAP argues that Congress did not intend the typical educational institution, solely by virtue of its legal responsibility to accommodate students with disabilities, to qualify as an “authorized entity.” To defend this proposition, the AAP focuses on the “primary mission” section of the statutory text, arguing that the Chafee Amendment was created to “expand the capabilities” of programs like the National Library Service for the Blind (NLS) and Recording for the Blind and Dyslexic (RFB&D), and not to specifically meet the educational needs of students with disabilities.

While the amendment did expand such programs, that benefit is collateral. The Congressional Record is clear that the goal of the amendment was to end the unintended censorship of blind students’ access to current information, to prevent the delays that created a barrier to blind students being informed and literate. The ultimate beneficiary of this amendment is not third-party organizations, but persons with disabilities. The focus should remain where Congress intended 10– on access to print-based materials and not on the “primary mission” of an organization that facilitates such access.

Colleges and universities, and especially their disability services offices, should be recognized as “authorized entities” as defined under the Chafee Amendment. Failure to do so prevents institutions from meeting their legal obligation to provide access to their programs and services. A decade ago, only the most visionary could have imagined the opportunities for ready and effective access provided by today’s technology. At that time students were generally limited to depending on human readers, obtaining Braille or linear audiotape materials from NLS, RFB&D, and other traditionally recognized authorized entities, or personally scanning print materials page-by-page to create non-navigable digital text. Today’s technology, fueled by digital files, provides far more effective, efficient, independent access to text resources. It would be the ultimate irony to conclude that students can have access to the technology that can provide access but not to the electronic files for use with the technology.

Colleges and universities can and should be held to reasonable standards designed to protect the rights of all the parties involved. Print impairments are certified. Students should sign agreements not to share or reproduce converted material. No economic harm should befall the copyright holder; AHEAD believes colleges and universities must require that students purchase the materials being reproduced.

The AAP argues that institutions should receive permission from copyright holders before any scan or other conversion occurs. Unfortunately, recent surveys indicate that requests to publishers for permission to scan books are frequently denied or ignored. If permission must be obtained and the publishing companies ignore requests or refuse permission to scan books, institutions are in a Catch-22 situation—they either risk a copyright infringement suit or risk violating students’ federal right to auxiliary aids and services under the ADA and Section 504.

Again, AHEAD believes the civil rights of students with disabilities must be considered superior to publishers’ contractual rights. In the end, it is the students–the intended beneficiaries of the amendment 11– who are damaged, not the publishers. It would be manifestly unjust not to allow colleges and universities to provide these accommodations in-house.

Covered disabilities:

AHEAD supports efforts to develop a Universal Design approach to education wherein a variety of formats would be available to all consumers depending on their preference and not dependent on disability status . However, the issue here (and that addressed in all state e-text laws) is not universal access, but access for students with disabilities that interfere with their ability to use standard print. If a market exists or develops for digital options, we trust publishers will recognize such and market accessible materials directly to consumers. At the point when any material is commercially available in an appropriate accessible format, therefore, this organization will recommend that no further institutional conversions be made.

The AAP appears to argue that the exemption in the copyright law only applies to blind and physically disabled students. However, that argument does not address the fact that there are students with other print disabilities who will be unable to access educational materials if the Chafee Amendment and other relevant statutes are read so narrowly. The majority of students needing alternate format print materials are identified with dyslexia and other learning disabilities. Additionally, as the biological and neurobiological bases of some learning disabilities that impair students’ access to print are better understood, a compelling argument is made for students with learning disabilities to be considered “physically disabled.” Similarly, no rational argument can be made for excluding students with traumatic brain injuries (or other organic brain dysfunctions), whose symptoms may be similar to those of students with learning disabilities. In fact, both RFBD and Bookshare currently serve these populations.

In 2004, the AAP and many large publishing houses agreed to the inclusion of the following language in the New York State Implementation Guidelines for Chapter 219 memo12:

“A print disability: The disability services coordinator or 504/ADA compliance officer should use professional judgment to determine whether a student has a disability that prevents him/her from using standard instructional materials. In general, a print disability results in the inability to effectively utilize print material and may include blindness, some specific learning disabilities, or the inability to hold a book.”

Colleges and universities are legally obligated to provide appropriate accommodations, such as e-text, to all qualified students with disabilities, not just blind or physically disabled students. Applying the AAP’s limited statutory construction would leave these students without the ability to access required educational materials. Congress could not have intended this result.

Covered formats:

The AAP contends in its memo that “digital text” within the Chafee Amendment refers only to the process by which scanned text may be used by blind persons with specialized text-to-speech translation software, rather than to digital text that might be freely transmitted via the Internet or burned into CDs. Thus, it claims that “digital talking books” and other current and developing formats that not only serve accessibility needs but may also prove attractive for use by persons without disabilities were not contemplated within the scheme of the Chafee Amendment. While this may be true, the AAP’s argument is unsubstantiated by current laws. As technology evolves and becomes more sophisticated, so do our laws. The VCR was not created nor thought of during the drafting of the copyright law, yet the Supreme Court held that consumers may video record programs.

Students with disabilities should not be relegated to using outdated technology simply because the latest technology was not contemplated at the time the Chafee Amendment was drafted. Students with disabilities must have access to the latest technology available to improve their access to text materials and permit them to compete equally on the academic playing field.

Whether the use of a copyrighted work constitutes fair use is determined on a case-by-case basis by applying the facts of each case to the four factors above.5 The four statutory factors are not to be treated in isolation; instead, their results should be weighed together in light of the purposes of copyright.6 Courts have held that the fourth factor, market harm, is the most important factor to be considered.7

Purpose and character of use. The purpose and character of the use in question is purely educational and nonprofit. These digital reproductions are undertaken solely to provide students with qualifying disabilities access to instructional course materials. In undertaking these reproductions, colleges and universities do not collect a profit; rather, they are performing their legal duty to provide appropriate accommodations for students with disabilities. The materials reproduced are educational texts used in conjunction with college coursework and are converted into digital formats for students’ individual study. Without such reproductions, students would be unable to access the course materials and could not benefit from the course materials they had purchased. The use is solely educational in nature and is restricted to students with disabilities that affect their ability to utilize standard print. This factor weighs in favor of fair use.

Nature of the work. The second factor looks at the nature of the copyrighted work and calls for the recognition that some works are closer to the core of intended copyright protection than others. Here the works being reproduced are highly protected literary works. However, even if this factor does not favor fair use, the totality of the factors does, since these factors are not to be looked at in isolation.

Amount and substantiality of the portion used. The third factor looks at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Although the entire work is being copied, that is the only amount of the original work that is appropriate for the favored educational purpose; nothing less could be taken and still meet the educational purpose.

Effect on potential market for or value of the copyrighted work. The fourth fair use factor, the most important in this context, addresses the potential market for or value of the copyrighted work and the extent of market harm caused by the reproduction. No market harm is created by allowing colleges and universities to reproduce works as digital text. As stated earlier, AHEAD advocates that the student buy the course materials at the same cost as that of other students (sometimes, in fact, necessitating purchase of an unusable format in order to obtain a usable one). Therefore, the copyright holder and publisher still receive any revenue generated from the purchase of the material. The market for hard-copy materials is not supplanted. Colleges and universities are not buying one copy of a book and reproducing it for all of their students; there is a one-to-one ratio of books to reproduction. Instead, this is a controlled reproduction for personal educational use by a particular qualified student with a particular disability. There is no similar product marketed by the copyright holder for the student to buy and use. Again, and most importantly, there is no market harm because the student has purchased the original text and is simply creating or receiving a reproduction in digital form in order to access the paid-for content.

The publishing companies and copyright holders should not control how a bona fide purchaser uses the material so long as the work is not reproduced for use by multiple people or for commercial exploitation. Reproducing hard-copy text into digital form for the educational use of students with disabilities does not economically harm the copyright holder. “Copyright was intended to increase and not impede the harvest of knowledge.”8 Authors will not be discouraged from creating literary works. Reproduction of instructional materials for this limited, educational use must be considered fair use.

Position Statement | AHEAD: Association on Higher Education And Disability.

§ 121. Limitations on exclusive rights: reproduction for blind or other people with disabilities63

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

(b)(1) Copies or phonorecords to which this section applies shall —

(A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities;

(B) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if —

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in specialized formats.

(d) For purposes of this section, the term —

(1) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(2) “blind or other persons with disabilities” means individuals who are eligible or who may qualify in accordance with the Act entitled “An Act to provide books for the adult blind”, approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other publications produced in specialized formats; and

(3) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act; and

(4) “specialized formats” means —

(A) braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities; and

(B) with respect to print instructional materials, includes large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities.

[See complete text of Circular 92: Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code]

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[See complete text of Circular 92: Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code]

… fair use in America simply means the right to hire a lawyer to defend your right to create.

Lessig, Free Culture, p. 187