In my work as an instructional designer, I often have to figure out what I can and can not use in the training materials I develop. Some times I have to approach authors and developers to ask permission to use their work in mine. I'm not always successful but my requests have been treated with respect and usually approved. Most authors are flattered to get a request and, in my experience, willing to work with me to figure out a way to grant the request. My experience doesn't include a law degree, but I've gained some practical knowledge that may be useful to you as you try to decide what you may and may not do and how you can request permission if you need it.
First, a bit of background.
The balance between authors' rights and society's rights is so essential that, in the United States, it's a part of the Constitution. And not an amendment, either. It's in the actual Constitution. Article 1, Section 8 says, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The U.S. Copyright Office's mission is "To promote creativity by administering and sustaining an effective national copyright system" (
http://www.copyright.gov/about.html).
Copyright is in place to promote creativity and innovation.
To begin work on this post, I grabbed several books scattered around my office and sewing room. My little stack included:
• a technical manual for a piece of software I'm learning,
• a novel by Jodi Picoult,
• a research methods textbook used at universities,
• a popular sampler quilt book, and
• a children's book called "
The Quiltmaker's Gift" by Jeff Brumbeau and Gail de Marcken.
I deliberately chose a variety of books to look at copyright protection. The children's book is highly original with a story from the author's imagination accompanied by fanciful illustrations. The technical manual and the research methods book have a lot of text written by the authors, but the books primarily explain facts, procedures, and principles. Finally, the quilt sampler book compiles traditional quilt block designs and patterns for making those blocks.
When I think of a "typical" copyright notice, I think of something like this:
Copyright <Year> by <Publisher>. All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission of the publisher.
What did the copyright notice in these books say?
The technical manual said "All Rights Reserved" and didn't elaborate all of the means listed in the sample. The three word phrase, "All Rights Reserved" was the entire copyright notice. The novel's copyright notice replaced the list I see so often with "in any form whatsoever." The remaining copyright notices (children's book, research methods book, and quilt sampler) were mostly what I expected to see and what you would probably see if you pulled a handful of books from your shelves, too.
Although publishers often add some extra text, "all rights reserved" says everything they need to say. For the technical manual, they left it at that. (That book has almost 900 pages. I guess they had to reduce word count somewhere!)
Let's look at what the phrase "All Rights Reserved" means. The Copyright Act is a good place to start and section 102 outlines the general terms of what is protected. (See
http://www.copyright.gov/title17/ for the original source).
§ 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
This section let's us know that "original works of authorship" in a variety of categories are protectable. If I grab a pen and a piece of paper and sketch a diagram to illustrate an idea, I have reached the bar for original work of authorship. My sketch is an original because I made it. Since the sketch is retrievable, it's "fixed in a tangible medium of expression."
But is this protectable under the copyright law? Look to paragraph (b) for the limits. It turns out that ideas are not protectable under copyright law. Anyone can use my idea - they just can't use my sketch without asking. If they want a drawing to illustrate the idea, they will either have to create their own or get permission to use mine.
Of course, people with integrity will credit me for the idea. In my field, we call that academic integrity. People lose their jobs and their reputations for failing to appropriately credit ideas.
What about quilt blocks? The copyright has expired on many of the traditional quilt blocks but original expression of the blocks abounds! The quilter’s choice of fabrics, her placement of the fabrics in the blocks, the placement of the blocks in the sampler - these things may be protected. Look at the
Flickr photo pool for The Farmer's Wife Sampler Quiltalong for one example after another of original expression (protectable) on traditional block designs (not-protectable)
Let's go back to my stack of books to see how the differences between protectable and non-protectable play out there.
- The Quiltmaker's Gift - This book strikes me as the most original book in my stack. (That's my subjective impression. You might not agree!) The story itself is protectable as are the gorgeous illustrations! But, here's where the limitations on authors' rights come in. No one else is barred from writing another fable extolling the benefits of generosity just because this author did! And lots of stories can have rich, beautiful illustrations! The idea of illustrating children's books doesn't end with this book. Placing these limits doesn't harm the market for children's books. It makes it possible to have more books!
- The novel by Jodi Picoult is almost 400 pages of protectable text and a dozen or so protectable illustrations. According to the blurb on the back cover, it's a story about a teenage girl's first love and her relationship with her father. I haven't started it yet, but the idea of using a teenager's first love as the setting for a story is hardly original. I'm counting on Picoult's original expression of that idea as being a page-turner. This novel is possible because we allow more than one book on a teenager's first love.
- The research methods book and the technical manual I chose focus almost exclusively on non-protectable items listed in paragraph (b). Despite this, many authors offer their version of how to approach these subjects. Their words and illustrations are protectable even if the ideas and procedures they describe are not. I benefit by shopping in a vibrant market for these books (over 33,000 choices at Amazon when I typed "research methods" and dozens of choices to help me learn my new piece of software) and so do the authors. Some of the research methods books are in their 11th editions!
- A popular quilt sampler book - I have several of these. In all of them, the authors/compilers use quite a bit of material from other places. The original source material might be protectable by the originator, but it's not by the author who re-used it. What they DO get to claim protection for is the specific placement of the blocks in the quilt; placement of the fabrics in each block; the photos and illustrations; and whatever narrative they actually wrote in the book. They can also claim protection for templates and patterns they provide but can't block someone else from providing templates and patterns of their own. (I'll come back to the collective nature of these sorts of works in the next post).
These examples illustrate that granting authors' rights while simultaneously limiting those rights, leaves a lot of space for creativity and innovation. Talented authors who write good books can make a living selling their books. Consumers benefit from a vibrant market filled with high-quality choices.
The next time you see "all rights reserved" in a copyright notice, remind yourself that those rights are subject to the limits expressed in the law. It just might be that you can follow up on a bright idea you have for a design or a blog post.
In the next post, I intend to look at what copyright law says about compilations and derivative works. We have a lot of those in the quilting community so the topic deserves a post of its own. And, I'll walk through my thinking about an idea I had as I reacquainted myself with
The Quiltmaker's Gift to see whether or not I am infringing someone else's copyright if I follow through with it. After all, I'm a big fan of authors' rights!
As always, comments are welcome.
