Copyright and Pagans

There’s recently been another round of discussion about copyright and Pagan uses, so this is a good time for me to rummage in my files and do the post on Pagans and copyright I’ve been meaning to do for a while. The following is based on the notes I used for a handout at a panel discussion at Paganicon in 2012, but I’ve expanded the explanations.

If you remember nothing else, remember this:

  • Copyright law is very complicated. (Even for people who specialise in it.) There are a lot of exceptions, and a bunch of things you’d think were common sense, but are more complicated than that.
  • Fair use or educational use is even more complicated. (There’s a section below on it.)
  • In many cases, a court is the only thing that can determine whether a particular use is legal if it doesn’t involve the copyright holder giving permission.
  • Getting permission is always a great choice. Many people give permission in advance via a Creative Commons license or something similar.

What is copyright?

Basically, copyright law developed to ensure that creators got benefit from their works, and were encouraged to make more of them, while giving reasonable exceptions to allow for research, scholarship, and other learning.  However, over the centuries, a lot of exceptions have been added, or things that made sense in the world before Internet make less sense now.

Copyright is about who can:

  • make copies of the copyrighted work (that includes posting it online)
  • distribute copies of the work to the public (also includes posting it online)
  • make derivative works based on the work (use it in other ways)
  • perform the work in public
  • display the work in public.

Derivative works include things like making an audio recording of a text-based work (there are some provisions for things like ‘audio versions for visual impairments’ but they’re also a bit complicated.)

Basics:

  • Copyright law is complicated (and many people feel it’s increasingly broken).
  • Copyright is automatic as soon as you put an original work in a fixed or tangible form (save it to a file, write or draw it, make a video or audio recording, etc.)
  • However, to get some kinds of damages, your work must be registered.
  • Copyright protects the expression of ideas, not the ideas themselves. (Patent law covers inventions or discoveries, and trademark law covers names, logos, and short phrases used by a business or entity to identify itself.)
  • Rule of thumb: if a work was created since 1923, chances are very good it’s under copyright. (There are a wide variety of exceptions, though.)
  • The creator is not necessarily the copyright holder – you need to check. (Sometimes a publisher, a legal heir, etc. actually holds the copyright.)
  • The creator does not need to indicate that the item is under copyright (there used to be such a requirement: there isn’t anymore.)

You may see the term ‘transformative works’ used – these are works that riff on the creations of others, but that add (in some form) new content, new ways of looking at the content, etc. Fan-fiction, vidding, and other art forms are all transformative works. The legal status of transformative works is even more complicated than copyright as a whole, but many creators and copyright holders have said they’re fine with it, some are fine with it within certain limits, and some are really uncomfortable with it.

 Examples:

1) “Beltane celebrates the coming summer and the love of the God and Goddess” is a general idea. A discussion of planning a ritual with that idea isn’t under copyright (because it’s not a fixed form). But the actual ritual script, a video of the ritual, or an audio recording of the discussion would all be under copyright law, because they’d be a fixed form.

2) An artist makes a picture, using a combination of a photograph they took and adding some effects in an image editor. They post it to their social media site. Even though it doesn’t say Copyright Artist Name 2013, it’s still a copyrighted image.

3) A Pagan group comes up with a ritual to celebrate the winter solstice. They share it on their website. While they’ve given permission for it to be used by members of the group, they do not give permission for others to copy it to their own sites (distribution or display).

4) Some things are automatically in the public domain. In the US, this includes things created by government or government agencies. For example, all the Astronomy Photos of the Day from NASA (but not necessarily other sources in the APOD site) are public domain because NASA is a government agency.

Key resources:

Creative Commons allows users to give blanket permission for certain uses – for example, that people are welcome to share a work as long as it’s properly attributed to the author. They have some standard licenses: you can pick what you want and easily link a little badge indicating what you grant permission for.

Nancy Sims: Nancy is the copyright librarian at the University of Minnesota. She has a blog that has very reader-friendly explanations of common copyright issues (as well as some more academic implications.) Check out her posts. I’ve linked some particularly relevant ones here, but there are other great ones in her archives.

Fair use:

Remember that I said copyright is complicated? Fair use is even more complicated. Basically, the only way to determine if something’s fair use is for a judge to rule on it – ‘fair use’ is a potential defence in court, not a set of standards that anyone can follow absolutely. There are times when a very small number of words have been deemed to be infringing, and times when a large portion has been deemed to be fair use.

 What is fair use? It…

  • Is meant to help encourage conversation about and development of ideas in copyrighted work (reviews, criticism, responses to a work, research, etc.)
  • Does not give you the right to use large portions of a work, or to directly use the heart of the work. How much can be used is the subject of lots of legal wrangling.
  • Can only be fully determined in a court setting. Courts look at four factors (the transformative factor, the nature of the original work, the amount and substantiality of the part used, and the effect of the use on the potential market.)
  • Has some greater exceptions for educational settings (by which the law mostly means structured classes with a start and end date and a limited audience).

There are exemptions for educational settings, but they mostly apply to things that look like conventional school or college classes. (Distance learning is complicated. Wide open course materials are complicated. Things that are a small group of people meeting face to face.) One-time workshops generally don’t count, but something like a coven’s structured training program might.

Educational use does not give blanket permission, just more options – more things that can be shared on a timely basis without advance permission, for example. Limited audience means that materials are not available to the general public – a password protected website limited to the class might be fine, however. Depends on the details.

What does this mean for Pagans?

Let’s look at some common kinds of uses in our community. (Note that I am not a lawyer, and that’s why these are hedged around with ‘quite possibly’ and ‘depends’ in a lot of places.)

Quite possibly a violation

  • Republishing of work without permission, without any additional commentary/material. (Permission might include a Creative Commons license.)
  • Quoting large portions of a work, even for purposes like review. (This would include the core of the work, extensive portions of the work, etc.) Generally a few sentences here or there from a work of non-fiction is considered acceptable.
  • Posting an image to your social media site if you do not know the original source/creator and have permission (either directly or via something like a Creative Commons license.)

Gray areas: depends on the specifics:

  •  Pieces used in ritual (especially public ones) such as chants, invocations, ritual dramas, full rituals from print sources. (These might be covered by implied license – the idea that people shared them in the first place because they wanted them to be shared in the larger community. In these cases, it’s still best to know where they came from, and share the creator’s name/etc.)
  • Spells (recipes are a complicated situation in copyright law – a list of facts, steps, etc. is generally not copyrightable, but something like a poetry verse in a spell generally falls under copyright.)
  • Sharing materials in a closed setting like a coven or small group meeting, and making sure they are not shared in openly available sources online. (This falls under some of the educational provisions, which get complicated. In general, if you want to share things year after year, you want to get permission.)

 Permitted uses:

  • Putting material in a Book of Shadows (or other personal religious compilation) that is not shared with others (whether in person, through print copies, or online). Including your sources is always a good idea.
  • Sending yourself an article in email from an online database or website, for your own reference and study. (A copy for yourself is fine. Sharing that copy would be a problem.)
  • Passing down material through oral tradition (one person talking to another is not a fixed or tangible form.)
  • Casual discussion, review, or comment on works without extended quotations. (“I liked this book because of these things” is just fine. So is “I didn’t like this book.” It’s the quotations that are the copyright issue.)
  • Citing the source for an idea, even if the expression of the idea is new. (For example: you like someone’s approach to the myth of Persephone, but rewrite it entirely in your own words.)
  • Linking to a source or document online. (Linking does not affect the original, and is not a copyright issue.)

Clarifications:

You may see people saying things like “250 words is okay”. Actually, no one knows. There are educational guidelines that suggest 250 words from a book-length work is probably a reasonable use. If you’re working outside a structured educational setting, you want to be cautious.

What happens if there’s a copyright violation? 

In the United States, this is covered by the Digital Millenium Copyright Act, but many places around the globe have roughly parallel protections these days. For items hosted by US companies or on US servers, there should be, somewhere, information on how to report a copyright violation. Under the DMCA, this can only be done by the copyright holder or their legal representative (aka lawyer – you as a random fan can’t do it for them) because it’s a formal legal process with some legally binding statements. For example, the Facebook information on reporting copyright violations has a series of answers that explain how to, and various other important pieces of information.

If you’re looking at someone’s site, and there isn’t information, you can go upstream to their hosting provider. Usually you can identify this by searching for their domain name in a WHOIS tool. (I use whois.net) If you look up gleewood.org it’ll tell you that my hosting provider is A Small Orange. It’s generally best to start with the person themselves, though, especially if you think they may just not understand copyright law.

If you have posted something that’s a violation, and it is reported to your hosting site, generally the site will either remove it or ask you to remove it within a limited time frame. If you don’t, they may take further action, like suspending your account. If you repeatedly post copyright violations, the DMCA talks about removing access from repeat offenders (however, sites have their own internal policies about how to define ‘repeat’ – it’s not very well codified in law yet.)

If you feel a use legitimately falls within fair use (for example, you quote someone’s book as part of an extensive review, they don’t like what you said, they file a copyright complaint) you can file a counter notice under the DMCA – however, at that point, you’re basically saying you’d be fine taking it court to resolve the issue. Since you and the creator of the work may be in vastly different locations, this can be very expensive and time consuming to resolve. (This is one of the current flaws of the DMCA.)

Larger questions

What customs do we want to grow as a community? I don’t know about you, but I’d rather be part of a larger religious community that respects the time and effort that authors, artists, musicians, crafters, and many others put into their work. Getting permission before sharing it (either directly or through a more general license) is the method that’s both in keeping with the law and with building a community where creators do share awesome things more freely.

How can we behave in a way that encourages creators (and publishers) to do more of the stuff we like? We can leave reviews about or recommend things we love. We can make sure we give credit whenever possible to the creator. We can let creators know of problematic uses, so they can follow up if they choose.  (even if a license doesn’t require it) (Reviews, recs, credit, alerting them of problematic uses.) We can model the kind of behaviour we want in the community – by giving credit, not using material unless the creator has given permission in some form, making sure we trace an image back to the original creator before we share it.

(Yes, this is a bit more work. But you are more likely to find other awesome things that author, artist, musician, or whatever has done, so there are rewards.)

How can creators help? The big one is by making their preferences clear and making it easy for others to understand. (I have a page on my websites about permissions, some people just put a Creative Commons link/badge in all the appropriate places.)

Creators who want to educate as well as deal with problems can work up a brief standard thing (“Hi, I’m the creator of [thing you posted]. I have not given permission for it to be shared in other ways, so can you please remove it? If you do not remove it by [reasonable date – at least 3-5 days in the future], I’ll need to take this up with [service/hosting provider/etc.]”) but are not required to (and this can lead to some wear and tear. Feel free to link to this page if you want to provide an explanation of copyright to others.

What you can do:

 Keep good notes of material you use for personal learning or practice – it makes later uses of the material much easier and simpler.

If you see a use of a work that you think is a violation, the best thing you can do is contact the creator or copyright holder. (For example, if someone posts an entire book online, contact the author and publisher.) Only certain people are legally able to do anything about a violation.

If you have permission to use a work, make that clear, and make sure the original creator’s name is as visible as the use of the work.

Model good practices in your own work, especially if you are teaching, leading a group, organising events, etc.

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