The Limits of Fair Use in Military Scholarship: When, How, and From Whom to Request Permission to Use Copyrighted Works

Summary

---

[...] a recent search in the LEXIS-NEXIS® "military law reviews combined" database revealed only eighteen citations acknowledging publishers for permission to reprint material.19 Among this group of articles, authors mainly requested permission only when reproducing entire articles from other legal publications.20 In a handful of instances, authors requested permission to reprint existing compilations of data, such as charts reflecting statutory trends across the nation.21 Only one author acknowledged a publisher for permission to reprint images.22 In hundreds of other articles, frequent citations to blocks of text, figures, charts, photographs, websites, song lyrics, jokes, and other content are accompanied by mere citations.23 While, certainly, not all unauthorized citations infringe upon an author's intellectual property rights,24 some may,25 and this is a reason for concern.

See the full content of this document

Extract

---

The Limits of Fair Use in Military Scholarship: When, How, and From Whom to Request Permission to Use Copyrighted Works

I. Introduction

Scholarly legal writing is a key component of law practice throughout the military.1 Specialty journals, such as The Army Lawyer, and the Military, Naval, and Air Force Law Reviews (combined military publications), jointly embody the philosophy that scholarly legal writing not only serves to develop the skills of judge advocates, but permits the transmission of vital knowledge on legal issues and developments unique to military practice.2 A substantial amount of scholarly work will emerge in combined military publications solely as a result of mandatory writing requirements in military educational programs.3 In 2008, for example, student-published work accounted for twenty-eight percent of The Army Lawyer and fiftyeight percent of Military Law Review.4 Aside from students, faculty members, military practitioners, and military judges account for the majority of remaining publications, with non-military law professors and practitioners accounting for a much smaller number of contributors.5

Among the diverse authors in combined military publications, technology has enabled access to a variety of source material, creating legal considerations.6 Most articles cite to webpages, and many cite to transcripts of cases, guidelines and standards of professional organizations, interviews, television broadcasts, and even movies.7 Many articles begin with quotations from popular films or plays for the purpose of grabbing the reader's attention.8 In addition to copyrighted works, the titles of articles and attention-grabbing excerpts sometimes include material protected as trademarks. Rarely are these uses ever accompanied by indications that the author first received permission to use such material.9

Military legal practitioners who produce published works are likely to encounter the same legal issues as university professors concerning the use of intellectual property for educational purposes. Chief among these concerns is the notion of "educational fair use," which potentially permits unauthorized use of copyrighted works for the purpose of expanding knowledge on an issue through criticism or review.10 In general, copyright experts warn all authors to err on the side of caution and seek permission to use copyrighted material,11 particularly because the concept of fair use is one of, if not, the most complex areas of copyright law.12 The concern relates to the fact that there are no automatic standards to determine when one's use is fair.13 Where infringement does occur, copyright owners can be enjoined from publishing a work or distributing already published work.14 Judge advocates publishing scholarly work, in fact, have special intellectual property obligations based on the nature of their status in the military.15 Furthermore, academic standar...

See the full content of this document

---