Trainer's Guide to Copyright, Pt 1

When, how and how much of someone else's material may a law enforcement trainer use? Val Van Brocklin lays out the Fair Use exception to copyright in easy to understand terms.

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.

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