Fair Use or Infringement
By Mark Donlan
Our Video Spotlight feature on Nicolas Rossolimo prompted a reaction from Edward Winter, who protested that the videos, originating on YouTube, contained material that was taken from his Chess Notes website without permission. The videos were first posted at ChessCafe in May 2011 and have been available in our archives since then; we only recently reprised them because of the new format. As we do not wish to condone misappropriation of material, we have removed the links, though the videos remain available on YouTube.
In an English Chess Forum post, brought to our attention by Mr. Winter, the videographer, Jessica Fischer, confirms some material in the Rossolimo video came from Chess Notes and asserts “All material in this video is presented under the fair use clause for non-profit educational presentation. This video is not monetized.” While promising to “go through all the rest of my chess history videos to make sure Mr. Winter is properly accredited for any material I originally found at his website.”
On that same thread Olimpiu G. Urcan wrote “In the Vera Menchik video I lost count of the number of pictures lifted from Edward Winter’s ‘Chess Notes’ site without a word of acknowledgement.”
And a later posting from Jessica Fischer states
“In lieu of just deleting the video, I’m going to add this to the introduction: ‘Many of the images that appear in this video first appeared on Edward Winter’s ‘Chess Notes,’ and I have included them in this video without first asking his permission. Mr. Winter has collected, scanned and posted many chess images on his website, often at considerable expense to himself, so he should at the least be properly accredited as the ultimate source for some of the images that appear in this or any other video. At the time I made the video I was not aware of this, as I found all of the images via a Google image search. I do regard the use of any images, music or film in this video to fall under the fair use for education purposes under current US, Canadian, and EU copyright law.'”
And then specifically,
“I do not think it is a copyright violation to use images from Mr. Winter’s site, without permission, for fair use in an educational project. I do, however, agree that it is rude not to accredit him when I know his site was where the original image appeared on the internet, so far as that can be determined.”
As for Mr. Winter, his feelings were made known in the post “C. N. 7743. A reminder”:
“A reminder should hardly be necessary, but readers are requested not to help themselves to whatever they please on the Chess Notes pages.
“The level of misappropriation can be remarkable. For instance, our feature article Books about Fischer and Kasparov has frequently been lifted en bloc, sometimes even without attribution.
“We wonder too when a certain Canadian grandmaster will remove from his website our copyrighted material, including the 2,000-word article A Catastrophic Encyclopedia.
“Nor does Chess Notes exist to offer a free scanning service for photographs (some of which we have acquired at considerable expense) to individuals who lack the relevant archive resources of their own.
“Finally, it is regrettable that discoveries and other information presented in Chess Notes (including valued contributions from correspondents) are often re-posted by people in a way which suggests that they themselves unearthed the material.
“Attention to these elementary points of fair play will be much appreciated.”
Thus, we have a debate on what constitutes fair use or infringement. Or do we? According to a page at Cornell University Law School the “U.S. Code for Limitations on exclusive rights: Fair use” is as follows:
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market for or value of the copyrighted work.
“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
Yet, the material in question is likely not under copyright protection to begin with, so is this fair use, infringement, or just a case of ethics and a failure to respect journalistic integrity. Is non-copyrighted material posted on an Internet website simply free for the taking without permission or accreditation?
The debate is not new. Author Christian Hesse has come under fire from both Mr. Winter and Tim Krabbe for some of the content in his book The Joys of Chess: Heroes, Battles & Brilliances, published by New in Chess. In C. N. 7083. Duped, Winter writes “many positions and other material are taken from Chess Notes, in exchange for a one-line mention of our website in a list on page 427.” And Tim Krabbe had this to say in 390. 13 December 2013: Emmser Hesse: “It’s about time Mr. Christian Hesse (ChessBase, books) wrote something he couldn’t first have read in my work.” Nevertheless, both Krabbe and Winter are given credit in Hesse’s eight-page “Index of literature consulted and further reading.” I, for one, enjoyed Hesse’s book very much. Should Hesse have been required to individually source each of the nearly 600 positions in his book?
Krabbe also complained about the content in the book The Most Amazing Chess Moves of All Times by John Emms in 70. 24 August: Amazing Emms:
“In his current column at The Chess Cafe, Richard Forster reviews “The Most Amazing Chess Moves of All Time” by John Emms. Forster doesn’t like the book very much, for one thing because Emms seems to have collected only from earlier collectors. I’m one of them. Forster writes: From Krabbé’s file The 110 Greatest Moves ever played sixty examples found their way into The Most Amazing Chess Moves of All Time. Add over forty from Krabbé’s other curiosity and classic files, and half the book is done.
“Emms would have liked it to be more than half. In January, he sent me an email about his book in progress, telling me my site “has been a very useful source for me”, and adding: “Are there any very recent new ones that have come to your attention?”
“Brilliant – the art thief phoning the gallery he has just pillaged: “Got any new acquisitions yet?””
Meanwhile publisher New In Chess has also been on the other side of the issue and took umbrage when a five-part DVD series by GM Ron Henley was based on GM Evgeny Sveshnikov’s book The Complete c3 Sicilian. The original DVD covers even featured a photo of the book.
Beyond borrowing of material there are many examples of clear-cut plagiarism, which is also rampant in the chess world both in print and especially on the Internet. Edward Winter devoted an entire essay to the issue in “Copying.” Some famous examples include the following:
- N.M. Kalinichenko’s book Encyclopedia of Chess Combinations, and subsequent software version Chess Combinations Encyclopedia, is said to be an exact copy of George Renko’s chess training CD Intensive Course Tactics published by ChessBase.
- Because of a review here at ChessCafe.com, Lubomir Kavalek discovered that Efstratios Grivas had copied an example from his Huffington Post column word-for-word on the DVD Chess Expertise Step by Step, Vol. 4, Endgame Magic. And, as noted on The Chess Mind blog, this example was also published in Grivas’s book Chess Analytics.
- In an article in Inside Chess magazine from May 3 1993, “The Sincerest Form of Flattery?”, IM John Donaldson wrote, “Examples of plagiarism are not unknown in chess literature, but Raymond Keene has set a new standard for shamelessness in his recent work, The Complete Book of Gambits (Batsford, 1992).” He gives details that “Virtually every word and variation in the four-and-a-half pages devoted to Lisitsin’s Gambit in Keene’s book was stolen” from Inside Chess, Volume 4, Issue 3, page 26.
An entire website, The Keenipedia Project, has been launched to document Ray Keene’s transgressions, and they even have a Twitter handle. The Streatham & Brixton Chess Blog has no less than four index topics devoted to Ray Keene. Other authors with unsavory reputations include Dimitrije Bjelica, Eduard Gufeld, and Eric Schiller to name just a few.
Even software code is said to have been plagiarized. The International Computer Games Association (ICGA) disqualified and banned the program Rybka from the World Computer Chess Championships for plagiarizing code from the programs Crafty and Fruit. And we never even touched upon plagiarism and copying in chess problem composition.
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I’d love to see these thieves get sued and get prosecuted. As to the thief Jessica Fischer, she is absolutely clueless about the law and the doctrine of “fair use.” Her use is not protected as fair use, and she is totally liable to the victim of her thievery. Attribution does not excuse infringement, nor does supposed “educational purpose” nor does lack of direct monetization. She could be, and should be, sued by the victim of her piracy.
I would appreciate comment on the following,as I am compiling positions for a book. While reading a book of a certain master’s games, many unavailable elsewhere, I detected many errors both in the game and in the author’s analysis. Would using these games be inappropriate use (they would represent less than 1% of the book’s content)? Analysis by the master would be quoted only to amplify points (i.e., point out errors).
Greetings, Thank you for your message. The chess games are in the public domain, much like scores of sporting events. Quoted analysis is OK when it is not a significant portion of the work. It would also depend how much original analysis you added. This is meant as a rule-of-thumb, not legal advice (smile).