Trainer's Guide to Copyright, Pt 1

This is not legal advice

As a lawyer and a trainer, I've often been asked what use trainers can make of someone else's work, assuming they give credit where credit is due. But I was a state and federal prosecutor - not a copyright lawyer. In fact, when I needed to know what rights I was selling and retaining while negotiating with a book publisher, I paid a lawyer with copyright expertise.

That said, I have researched the use I can make of the work of wiser people than myself (or of people I disagree with) in my training of law enforcement recruits and officers. Given that, and the times I've been asked the same question by other trainers, I thought I'd share what I've found.

DISCLAIMER: The opinions expressed in this article are NOT intended nor should they be taken as legal advice. They are for discussion purposes only. Consult a qualified attorney for specific questions. (How's that for lawyer speak?)

Copyright law fills volumes. This article intends to provide a few points that will help the law enforcement trainer frame the issues.

Copyright basics

Copyright is a form of intellectual property law (which also includes patents and trademarks). It protects original literary, dramatic, artistic and musical works including, but not limited to:

• Poetry
• Novels
• Movies
• Songs
• Photographs
• Art
• Sculpture
• Computer software
• Websites
• Dance choreography
• Plays
• Architecture

If you can see it, hear it, read it, or watch it, chances are it's protected by copyright law.

Copyright does NOT protect facts, ideas, systems, or methods of operation, but it may protect how these things are expressed.

A work is under copyright protection the moment it is created and fixed in a tangible form. It does not have to be registered nor does it have to contain a copyright notice. However, to sue for copyright infringement the work will have to be registered first.

The department or employing agency may be the copyright owner

Before we venture into fair use, one narrow issue for law enforcement trainers who are employees of a department or agency - as distinct from private, independent contract trainers - is who owns the copyright of materials they create.

Generally, the person who creates the work is the copyright owner. But if you created the work as an employee, acting within the scope of your employment, your creation may be a "work made for hire." In that case, the employer is the copyright owner. This could apply to computer software, training curriculum and manuals, training videos, photographs, etc.

The Fair Use Exception

Most copyright questions for law enforcement trainers center around their fair use of existing works. Fair use can allow trainers to clip, quote, scan, share and make other common uses of protected works. The law of fair use does not provide exact answers. Instead, fair use has conditions and limitations and depends on a balanced application of four factors:

1. The purpose of the use
2. The nature of the work used
3. The amount used
4. The effect of the use on the market for the original

The purpose of the use
Copyright law favors nonprofit educational uses over commercial uses. Fair use is also more likely when the copyrighted material is "transformed" into something new rather than merely reproduced. Examples of this latter include quotations incorporated into a larger work, pieces of a work mixed into a multimedia product for teaching, and use of works in the context of criticism, critical analysis or comparison. For teaching purposes, multiple copies of some works may be specifically allowed (e.g., handouts), even if not "transformative." Nature of the copyrighted work.
Courts more readily favor the fair use of nonfiction than fiction. They disfavor the fair use of unpublished material reasoning that copyright owners should have the right to determine the circumstances of "first publication." Courts split on whether a work that is currently out-of-print should receive special treatment. Commercial audiovisual works generally are less like to be covered by the fair use exception than printed works. Amount of the work used.
Amount is measured both quantitatively and qualitatively - neither with any exactness. Acceptable quantity is evaluated relative to the length of the entire original. One article in a larger journal or one chapter in an anthology may be considered an entire work. Courts are more sympathetic when the amount copied is limited to the amount needed to make the educational point, so any effort to edit portions of an article may help with finding fair use.

Images are tough because a user nearly always wants the full image. However, a thumbnail, low-resolution version or a small-sized replica of a poster might be an acceptable amount for training purposes.

The qualitative aspect is also a challenging call. Even short clips of a movie may borrow "the heart of the work" or the most extraordinary or creative elements.

Effect on the value of or market for the work.
Basically, if your use impacts the purchase of an original, this factor may weigh against fair use. Occasional quotations or photocopies may have no adverse market effect. If you sell the copied material, adverse effect may be presumed. Copying a workbook, textbook or other commercial work meant for the educational market, even if you don't charge for it, is disfavored because that can have a direct effect on the intended market. Likewise, reproductions of software and videotapes can adversely impact the potential markets for those works.

A handy fair use checklist based on these factors may be found at the web link below.

The use of titles

Generally, copyright law does not protect the single title of an original work. Federal trademark or unfair competition law may, however, protect a series title. In fact, federal trademark law permits the registration of a series title. And unfair competition might occur if you used a specific title in a manner that might create a likelihood of confusion regarding the source of the publication in the minds of the purchasing public.

I don't know if the Chicken Soup series has been registered but if you want to publish a collection of humorous and inspiring cop stories, I recommend T-Bone Steak for the Cop Soul. Since I thought of it first, however, if you beat me to the book you ought to give me credit for the title. Not because it's the law but because it's the right thing to do.

Uses with permission

Let's not forget consent - in searches and seizures and in the use of copyrighted material. If the use you want to make of a copyrighted work is not within the fair use exception, try getting permission. A web link below will take you to instructions for requesting permission and a model permission letter.

There is also a link below to the Copyright Clearance Center (CCC). CCC is a nonprofit organization that provides content licensing services to creators and users of content. Corporations, universities, law firms and government agencies purchase licenses from CCC for the rights to use and share published material. CCC collects and then distributes royalties to copyright holders.

It goes without saying...

But I'm going to say it anyway: always give credit to the author or creator even if your use of her materials falls within the fair use exception.

Next month...

We'll look at some actual scenarios that law enforcement trainers might find themselves in and what the case law has to say about them. And because law enforcement agencies are governmental - not commercial or nonprofit educational - we'll look at special guidelines for their reliance on the fair use exception.