• LAW: Copyright, fair use and trademark

The freedom to write and publish is not unlimited.

One area in which that freedom is limited is that of copyright and trademarks, which are part of a larger area of law known as intellectual property. People who create what we might term generally as “intellectual property” – books, musical works, art, sculpture, articles, poems, etc. – have some protection in the way that those works are used by others. If you draw a picture or write a poem, that picture or poem is yours (at least for a limited amount of time), and no one else can reprint it without your permission.

There are things that copyright does not cover, however.

Facts cannot be copyrighted. Let’s say you are the only writer covering your high school basketball game, and you write a story about it for the high school paper. Another publication can take the facts that you have described – the details of the game, the score, etc. – and use them in its description of the game.

That publication, however, cannot use your account of the game. The expression of facts can be copyrighted, but the facts themselves cannot.

Like facts, ideas cannot be copyrighted, but the expression of those ideas can. For instance, you can paint a picture of a tree, and that painting will be copyrighted. Someone else can paint a picture of the same tree. That’s ok, as long as they do not use your painting.

The protection of a copyright is limited in two important ways. One is that it does not last forever. Currently, copyrights last for the life of the creator, plus 70 years. If the copyright is owned by a corporation, the copyright lasts longer. A copyright does not last forever. At some point, all creative works become part of the “public domain”; that is, everyone owns them. Consequently, the works of William Shakespeare, for instance, are in the public domain, and Shakespeare can be quoted at length without anyone’s permission.

The second limitation of copyright is through the concept of fair use. This concept has been developed to encourage the dissemination of ideas and information without either putting a great burden on the user or infringing on the rights of the creator of the work. Fair use means that in certain limited circumstances, a copyrighted work – or more likely, some portion of it – may be used without the permission of the holder of the copyright.

Courts have look at four things in considering what is fair use:

• the nature of the copyrighted material – how much effort it took to produce it;

• the nature of the use – for instance, material used in an educational setting for educational purposes is more likely to be thought of as fair use;

• the extent of the use – how much of the copyrighted material is used, just a few words or a whole passage;

• commercial infringement – most importantly, how much does the use hurt the commercial value of the work.

Unless material is being used in a very limited way, you should always get permission to use copyrighted material. Holders of copyright can be very aggressive about enforcing their copyrights, and the unauthorized user of a copyright can be fined substantially. Many people in education believe that they can use any material in any way they wish, and it will be considered fair use. That is not the case. Educators are bound by copyright laws as much as anyone else.

Note: Being in school or teaching in a public school does not protect you from being charged with copyright violations. Teachers sometime think they are immune and make multiple copies of copyrighted material (such as a chapter out of a book) without seeking permission from the publisher. Doing that, even for the noble purpose of educating student, is a violation of copyright laws.

Another note: Material on the Internet has as much copyright protection as anything else. Some people believe that whatever is on a web site is in the public domain, and that is not the case. Just because material is easy to access does not mean that it does not have copyright protection.

Trademark

A special protection for the commercial use of words, phrases and symbols is trademark.

Many companies go to great lengths to protect their trademarks because that is how the public identifies their products. What if, for example, a shoe company named Nuke started using the Nike symbol, the swoosh, on its shoes? Consumers might become confused about what product to buy, and Nike, which holds a trademark on the swoosh, might be hurt by that.

Journalists generally do not run into much of a problem in using trademarks in what they right or print. If a newspaper used the Nike swoosh to illustrate a story about the company, that would probably be considered fair use because it would not be infringing on the commercial aspects or the swoosh or confusing consumers with it. But journalists should be careful about certain words they use that designate particular products. For example, “Xerox” is the name of a company, not a verb that means “photocopy.” It should be capitalized and not used as a verb.

The following is a list of commonly misused trademark names and the generic words that you should use instead:

Baggies, plastic bag

Band-Aid, adhesive bandages

Brillo, scouring pads

Chap Stick, lip balm

Clorox, bleach

Cool Whip, dessert topping

Dictaphone, recorder

Drano, drain opener

Fed Ex, overnight delivery service

Fig Newtons, cookies

Frisbee, flying disc

Hi-Liter, color markers

Hush Puppies, shoes

Jacuzzi, whirlpool baths

Jell-O, gelatin pudding

Kitty Litter, cat box filler

Kleenex, tissues

Kool-Aid, drinks

Krazy Glue, strong adhesives

Levi’s, jeans

Lysol, disinfectant

Mace, tear gas

Pampers, diapers

Ping-Pong, table tennis

Plexiglas, see-through plastic glass

Rollerblade, in-line skates

Seeing Eye, guide dogs

Tabasco, pepper sauce

Teflon, non-stick coatings

Vaseline, petroleum jelly

Windex, glass cleaner

Winnebago, motor home

Wite-Out, correction fluid

X-Acto, knife

Xerox, photocopier

Ziploc, resealable bags

Zippo, cigarette lighter

 

This module was adapted from James Glen Stovall, Journalism: Who, What, When, Where, Why and How, Allyn and Bacon, 2005.