Can You Use Copyrighted Material?

An explanation of fair use and the difference between copyright, trademark and patent.

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Public Domain

Copyright law is quite a complicated beast and can be open to quite a lot of individual interpretation. What this means for people like us is that it’s a minefield that could end up with legal action.

Firstly, copyright only covers certain things. The main confusion with copyright law is not understanding the difference between copyright, trademark and patent.

Copyright

This is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. In other words, the protection of artistic creation from copy, theft, plagiarism, or unlicensed use.

Trademark

This is a symbol, word, or words legally registered or established by use as representing a company or product. In other words, the protection of a name, brand, logo, or combination thereof from copy, reproduction, or being exploited through similarity designed to intentionally mislead others.

Patent

This is a government authority or licence conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention. In other words, the protection of an idea or concept from duplication or unlicensed manufacture or sale.

 

Under UK law, everything created as artistic expression is copyrighted unless stated otherwise. If it has been created then it is protected under copyright law. It doesn’t matter whether the creator has registered with a body, paid to have it copyrighted or anything else like that. I could write something on a napkin and shove it in a cupboard never to be seen or heard of again and I would still own the copyright to that piece of writing.

Copyright does expire, however, and the time that takes varies depending on your country and what the material is. Just because something is old doesn’t mean that it’s fair to use. If you want to use anything that somebody else has made you need to look at that specific thing to see if it’s public domain or still owned by somebody.

“I believe in copyright, within limited precincts. But I also believe in fair use, public domain, and especially transformation.”

David Shields

This quote by author David Shields is a good sentiment to highlight, but it also is a fantastic way for me to make my next point: fair use.

Within copyright law there is a section dedicated to fair use. What this means is that people can use your work for very specific things without asking for your permission and there’s nothing you can do about it. Those specific things that you can do with the copyrighted work change depending on what country you are in but, generally they allow you to use it for comment, criticism, review or in a transformative/parody way.

Fair use is a term that is often massively misunderstood or misused, by both sides of the argument. There are the creators who use other’s material and it’s very clearly not fair use – that’d be like me writing a review for Harry Potter, copy-pasting half of the book into it and only saying “it was alright” – and there are those that try and stop anybody using their work despite it being fair use – that’d be like me suing somebody who quoted a line in a short story of mine to review it.

To properly use fair use, you need to bring something new and original to the table, like I have done above. I have used David Shields’ words to make a point, comment upon it and to educate. Therefore, I am using the quote under fair use. I still acknowledge and credit the original creator, however.

One mistake with copyright that I see with more frequency than I should is people using Google Images. People appear to be under the assumption that everything there is free to use because they don’t cost money. Or they haven’t got a watermark on the image. This is never okay. If you want to use an image then you need to find one that’s under a very specific license that allows you to use it as you please. You can find a lot of content under a Creative Commons license, however make sure that you check that there are no further requirements. Some will require you to credit in a specific place in your work, others won’t require anything.

One point that I also see a lot of people use to justify using copyrighted material is that they’re not charging for the final product. This is not a defence. It will never be a defence.

Using other people’s work is fine as long as it’s properly acquired. Speak to the original creator and make them an offer. If you can’t find that person then don’t use the material. If you’re unsure if it’s copyrighted still or public domain, don’t use it. It really isn’t worth destroying your reputation for. And that’s not being overdramatic. Amazon and publishing companies like them won’t just remove the book, they’ll remove your account and ban you from every using their service again. It really just isn’t worth it.

David Chitty was born and raised in Thanet in the 90s. He devotes most of his energies to writing fantasy fiction novels.

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