Copyright: Special Cases:
Images, Video, Music, Software

Images of all sorts--photographs, prints, paintings, illustrations, diagrams, graphs, maps, film, videos, digital or not--are protected by copyright just as other materials are.
Music that is fixed in a tangible form--sheet music, scores, written notes, any sort of recording, whether analog or digital--is protected by copyright just as other materials are.

If the material you want to use is not in the public domain or available from a licensed resource, conduct a fair use analysis to see if your proposed use would require permission.

NOTE: If you are dealing with photos or video of people, you may also need to consider privacy rights. The University requires written consent from anyone included in an image.

Complicating factors:

• You may be dealing with layers of copyright. For example, an original illustration may be in the public domain, but the digital reproduction may still be covered by copyright or license. Illustrations in books and articles may be individually copyrighted separately from the book/article. A musical recording involves separate copyrights held by the composer, the performers, and the recording company. 
• The fair use principles allow for the use of a portion of a work, but the law does not define what is an acceptable portion of an image, piece of music, or film.
  The Fair Use Guidelines for Educational Multimedia suggest some limits, but note that these guidelines deal with amounts to be used within the time and space limits of mediated instruction. Wider distribution could have more impact on the value of the original, changing the fair use analysis.
  The Guidelines recommend:
  • No more than 5 works by the same artist/photographer or no more than 15 images or 10% from a collective work (whichever is less).
  • No more than 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work.
  • No more than 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work).
• Copyright protects creative expression, so a work that displays more creativity is more protected than a more factual depiction. A dramatic film is more protected than an instructional film or news broadcast. Dramatic musical works, such as opera or musical theater, are generally more protected than others.
• The purpose of your use is important. The use of materials integral for teaching, comment, critique, or to illustrate a point would be more favored than a merely decorative or supplementary use.  
   

Computer software is generally copyrighted just as a book is. Unlike a book, it is difficult to use just a small portion of it and call it fair use. Computer software can be sold, licensed or freely distributed. Just because software might be free, does not mean it is not copyrighted or that there is no license dictating terms of use.  

A license is a legal agreement between you and your software publisher. The license spells out what you can and cannot do with the software. It might specify the number of computers on which the software may be installed or address resale rights.  Software may include a validation feature as a check on proper use. There are several categories of software and licenses:

• Shared source - Microsoft developed “shared source.” There is not one standard license for shared source, there are several. When using this software, read the accompanying restrictions on use.
• Shareware is proprietary software that is distributed freely or at low cost as a way for users to test drive  copyrighted software they are interested in purchasing. Shareware will usually come with a license and registration. Shareware often distinguishes between commercial and non-commercial use.
• Freeware – Although free, this software is copyrighted. It may have proprietary code or it may be open source software. It could even be in the public domain. Look for possible restrictions on use.
• Open Source (OS) software is copyrighted, but the copyright holder ascribes to the OS license principles. OS comes with a license that uses special criteria known as Open Source Definition (OSD) established by the Open Source Initiative. See OSD for the ten principles. This is non-proprietary software. It can be downloaded, modified and redistributed. Commonly known OS software examples include Apache and Mozilla.
• Implied License - This sort of license may appear on the box or in the printed information that comes with purchased software. There will be wording that states that your use of the software implies consent to the terms of use. (Simpson 88)
• Shrink Wrap Licenses- These licenses are found after the buyer tears off the shrink wrap and opens the box. While “shrink wrap” licenses have been found to be unenforceable in some cases, one cannot assume this is will always be true.
• Click Wrap License- Also known as “click through,” this is similar to a Shrink Wrap license, but we find these all over the web or on CDs. The user is required to agree to terms before using the service.
• Copyleft License - This liberal license retains copyright for the creator, but allows the user to modify and distribute the software with the understanding that “downstream” users will be equally generous. GNU (General Public License) is a copyleft type of license.

Is reverse engineering of software legal?

This is an unsettled, technical and tricky area of law. Certainly the DMCA (Digital Millennium Copyright Act) prohibits overriding TPMs (technological protection measures) that prevent access to copyrighted work.  As shown in the 2004 Lexmark case, however, Static Control Components successfully reverse engineered a chip to work with Lexmark printers, with no consequences. Lexmark failed in its claim that this action circumvented its TPMs. However, no two cases are alike. The situational details of the Lexmark case present an interesting outcome, but the technical details in other cases may yield the opposite result. To read more about this case involving software copyrights and what defines TPMs, see Arstechnica or full 32 page opinion of the U.S. Court of Appeals, 6th District.

Are there any exemptions in the law regarding software?

Every three years the Copyright Office issues exemptions to the Digital Millennium Copyright Act. These exemptions address computer programs, DVDs, ebooks, film and more. These are listed as “Exemptions to Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works.” View the exemptions made since 2000. Read these to find out what is legal. You can also send your comments on newly proposed rules.

(Carol Simpson, Copyright for Administrators. 2008.)