The Ultimate Guide to Copyright
Introduction: What is Copyright?
Copyright is a topic with a lot of misconceptions and urban legends surrounding it.
This makes it both simple and complicated to understand at the same time. Simple, because a fairly straightforward set of principles governs how it works; complicated, because there are a number of contradictory, conflicting, and confusing ideas to deal with.
This guide will deal with all of those in subsequent chapters, but for now let's focus on what copyright is fundamentally.
- Copyright is the legal and exclusive right to copy, or permit to be copied, some specific work of art.
- If you own the copyright on something, someone else cannot make a copy of it without your permission.
- Copyright usually originates with the creator of a work, but can be sold, traded, or inherited by others.
Why you should care
If you run a website you may have to deal with copyright law and related issues from two different sides: as a producer and as a consumer.
If you blog, take photographs, publish music, or otherwise produce copyrightable content, you legally own that content. Whether you want to let other people use it or not is your decision, and there are things you need to know and do in either case.
If you want to use other people's content, you have to understand permissions and licensing, what is legal and what isn't.
This dual-role of producer and consumer is somewhat unique in history. It is a relatively recent phenomenon that regular people published their own writing, music, video, and other artwork. Copyright law, and the practical applications of it, have been racing to catch up with this new world. Not everything is settled yet, but there are enough firm principles that you can protect yourself if you take the time to learn about it.
This guide will walk you through the most important issues concerning copyright law and its practical applications to you as a web master.
The History and Philosophy of Copyright
What will you learn in this chapter?
This chapter provides a brief overview of the historical context and philosophical foundation of modern copyright law. If you're just looking for the practical details, you can skip it. But knowing why the law is how it is may help you understand it.
Permission to Publish
Modern copyright law is usually talked about as if it a protection for authors against others "stealing" and profiting from their work without the original creator being rewarded.
But the original conception was quite a bit different.
Copyright developed originally as a privilege granted to approved printers of books, who were given an exclusive license to print some particular work. It was a whitelist form of censorship: no one could print anything unless they had been granted the copyright to do so.
This was at a time when sovereign rights (the rights of rulers) were considered to be more important than the rights of individuals. There was no conception of "Freedom of Speech" as we know it — you literally had to have permission to print something.
Freedom of Speech
By the 18th century, and especially after the American Revolution, the conception of Free Speech had become a mostly accepted fact.
Copyright law could no longer be about granting special permission to print something, because the assumption of Free Speech is that anyone is free to print anything.
Rather than a license to print something you otherwise wouldn't be allowed to, copyright became a right to stop other people from printing things they otherwise would be allowed to. In an era of restriction, copyright was a permission. In an era of freedom, it became a restriction.
The reason for copyright changed also. Rather than being a form of censorship, the idea became an economic incentive to create. The idea behind modern copyright law is that if artists can control who is allowed to copy their creations, then artists can charge for that permission and make money.
Intellectual Property and Ownership
So the situation is that without copyright, but with Freedom of Speech, anyone would be able to copy anything they want, even if someone else had created it. This might make it difficult for artists to get paid for their work, which might mean that there is less art created (because artists are having to do other things to pay the bills).
This is the situation modern copyright seeks to correct, and it does so by assigning the exclusive right to make use of a work to the one who created it. It acts as a necessary and justified infringement on Freedom of Speech.
But a secondary cultural effect occurred because of this solution. Because copyright grants exclusive rights to works created by artists, the works themselves came to be regarded as a form of property. Hence the term "intellectual property."
Strictly speaking, the only property at issue in intellectual property is a legal right to produce something. This is an asset in a financial sense, so it can thought of as property. But the metaphor to real property is so strong that people often talk about copyright infringement as a form of "stealing."
Why does this matter?
The common shorthand of referring to copyright as "ownership" and infringement as "stealing," while possibly effective as a deterrent, gives a false impression of the nature of copyright law.
Having a proper conception of copyright law helps make certain practical applications of it — especially fair use, for example — easier to understand.
How to get a copyright, and what registration is
What will you learn in this chapter
This chapter explains how copyright protection is obtained, how to register a copyright, and the benefits of copyright registration. Alternative registration options are also considered.
Copyright is automatic
One of the most common misunderstandings of copyright is how to get it. There is a persistent myth that copyright is something you apply for or obtain from a government agency. One of the weirder compliments you may get from people if they like your artwork or writing is, "You should be sure to get a copyright on that!"
This is all wrong.
Copyright happens automatically, the minute you set something into a "fixed form" — even if that fixed form is pen scratches on a legal pad. You automatically own the copyright to any creative work of art you produce, the minute you produce it.
That © sign
Another misconception is that you have to put the copyright symbol on something, or else it isn't copyrighted. This used to be true, but is not the case any longer.
In a related myth, some people think that you can't use the copyright symbol unless you have registered the copyright. Also untrue.
The copyright symbol carries no legal weight and has no magical effect on the status of your copyright. Forgetting to use it does not cause you to lose your rights related to something you created.
The purpose of the copyright symbol and dated copyright notice to inform people that a piece of art is copyrighted, who owns that copyright, and under what terms is the present copy being made available.
Copyright notices are not required for any reason, but they are certainly useful and ought to be included.
By the way, the best way to display the circle-C copyright symbol is to type
© into your HTML. This should be followed by the year of creation and the name of the current copyright holder (usually the creator). If you want to add additional notices (such as "All rights reserved." or a Creative Commons release, do so after the name.
Copyright happens automatically, so you don't need to register a copyright. However, you may wish to do so.
Registering a copyright allows you to do three things:
- Legally establish yourself as the copyright owner of the work.
- Legally establish the date of creation.
- Take legal action against someone who infringes on your copyright.
That last one is key. You cannot sue someone for infringing your copyright unless your copyright is registered.
If you expect to be suing people for infringement, you may want to register your copyright. Likewise, if you have no other way to prove the date of your creation (which may be the case for unpublished works), registration may be a good idea.
Registration of a copyright does not need to be immediate. If you can definitively establish the date of your authorship by other means, you can (in theory) wait to register your copyright until there is a reason to sue (that is, once someone has begun infringing on your work). However, the processing time for copyright registration filings can be up to a year long, so this may not be a feasible option.
Alternative Copyright Registration
The most important thing to say about alternative forms of copyright registration is that there are no legitimate alternate forms of copyright registration.
There are a handful of companies that bill themselves as if they provide some form of copyright protection, but these are not substitutes for actual copyright registration. Two in particular standout as good examples of this:
- Myows.com — Myows allows you to upload works, which can help establish your authorship and the date of creation. This is not, however, an adequate substitute for registration if you actually need to bring an infringement lawsuit. They do offer a service that useful, though. They search the internet constantly, looking for possible violations of your copyright, and report this information to you. They also provide assistance sending Cease-and-Desist and Takedown notices, and a handful of other similar DIY legal services. They aren't a substitute for registration, but they do a provide a potentially valuable service.
- Copyright Registration Service / Intellectual Property Rights Office — CRS, which is supposedly a service provided by the IPRO, also provides its own form of work registration. However they apparently provide no other services. Their marketing implies that your work is protected through registration, but they provide no indication that they actually register the copyright on your behalf with any government of any country. Moreover, their fees are much higher than actual copyright registration in the U.S., and their supposed registration is temporary (so they can charge more for renewals). Nothing about CRS passes the "sniff test," and we recommend you avoid them.
These not-quite-legitimate alternative registration services exist because people think it is too expensive or too difficult to register a copyright.
It is not.
As of the time of this writing, the fee for registering a work online is only $35 (and it's been that for a long while). There's really nothing to be saved by using an alternate registration service.
Poor Man's Copyright
This is another urban legend that won't seem to go away.
There is a widespread belief that you can effectively obtain a copyright by sending yourself a copy of your work via registered mail. The idea is that you have proof that the contents of the envelope existed at the time you sent them, and this can help establish your ownership over the work.
The U.S. Copyright office is very clear that mailing a copy of your work to yourself has no legal effect.
(It seems reasonable to assume that this could still be used to prove a date-based claim to copyright ownership, but the safer route would be just going ahead and registering.)
Copyright is granted the moment you create something and set it down in a "fixed and tangible" form. You do not need to register a copyright to have one — you have it automatically. However, if you expect to sue someone for infringement, you will need to have your copyright registered. Alternative forms of copyright registration are not recommended.
Registration forms, and additional information about U.S. Copyright can be found at the U.S. Copyright Office.
What can be copyrighted and what can't be
What will you learn in this chapter?
This chapter discusses what types of material is eligible for copyright protection.
Types of works
Copyright protection extends to works of artistic creation. This includes:
- Music — songs, arrangements, scores, recordings, etc.
- Writing — novels, poems, stories, journalism, plays, blog posts, etc.
- Visual art — painting, drawing, photography, sculpture, etc.
- Dance choreography
- Computer software
Fixed and Tangible
Copyright protection is only available for works that have been set into a "fixed and tangible" form. This means that you can't copyright an idea or a concept, only its tangible expression.
For example, let's imagine you have a brilliant idea for a movie — Zombie Stockbrokers from Outer Space. The idea itself is not eligible for copyright protection.
You can write a screenplay, and that screenplay is protected by copyright. No one else can copy or produce your movie without your permission
But the underlying idea still isn't under copyright protection. If someone else wants to write a screenplay about Undead Financial Planners from Alpha Centauri, you can't sue them. You own the work, not the idea.
Other types of protection
Some types of intellectual property are protected through means other than copyright, namely Trademark and Patent.
- Trademark covers words, names, symbols, designs, slogans, logos, or combinations of such that identify commercial entities. A picture or a set of words is eligible for copyright if it is primarily an artistic, not a functional, work. It is a Trademark if it is used to identify a business.
- Patent covers inventions, both physical and virtual (software), as well as business processes.
The laws governing Trademark and Patents, and the processes for registering them, are very different than those for Copyright.
Computer Software — Yes
Computer software is an interesting point. There is a complex intersection of copyright law and patent law that covers computer software. Broadly speaking, novel and non-obvious software technologies may be patented, while a software application as a whole is subject to copyright. This is a tricky field where case law is still developing, so if you think you have patentable software invention, you should talk to a Patent Lawyer.
(Interestingly, the bar for copyright protection is much lower than the bar for patents, but copyright offers potentially more protection for a longer period of time.)
Architecture — Yes
Architecture seems like something that would qualify for a patent, but only the individual inventions associated with it are. Architectural designs themselves are covered by copyright.
This is actually a somewhat new rule, and only applies to buildings designed after 1990.
It is worth noting that even though architectural designs are under copyright protection, photographs of them (taken from a publicly accessible location) are not considered an infringement of copyright.
Recipes — No
Recipes themselves, including lists of ingredients and basic instructions for preparation, are not eligible for copyright protection.
A detailed editorial about your experience making a dish and eating it, as well as any photos you take during the process, are eligible for copyright, though.
Fashion Design — No
Clothing design, even though it is considered a form of artistic expression by the people who practice it, continues to be considered a utilitarian product and not eligible for copyright protection.
Fabric prints are eligible for protection, and novel manufacturing methods may be eligible for a patent.
Jokes — No
Jokes are not eligible for copyright protection, because the essence of a joke is the idea itself, and ideas cannot be protected by copyright.
Humorous stories and monologues are copyrightable works, however. This partly explains why comedians tend toward longer stories in their comedy rather than simple one-liners.
Old works you found — Maybe, maybe not
If you find an old diary at an antique store, you don't own the contents just because you own the book that holds them.
If the author is still alive, he or she retains the copyright on the work. If deceased, and the work is recent enough to still be under copyright, it is owned by the heirs to the estate.
This applies even if you cannot find the heirs or don't know who they are.
If you find an old journal in your mother's house after she died, and you are the heir to the estate, the copyright on the contents does indeed belong to you.
Boat Hull Designs — Yes
Oddly specific, but you might want to know that as of 1999, the designs of boat hulls are protected under copyright law.
Only works of artistic — not utilitarian — expression are eligible for copyright protection. Works must be set down in a fixed and tangible format, which means that ideas themselves are not protected. If something is used primarily to identify a brand or organization, it is protected by trademark, not copyright. Inventions are protected by patents, not copyright.
What is Fair Use?
What will you learn in this chapter?
Fair Use is the allowance made for the use of copyrighted material for the purpose of commentary, criticism, or parody. This chapter discusses the legal framework for Fair Use and the specifics of when Fair Use does and does not apply.
Copyright is a restriction on free speech
In the United States, we have a constitutionally guaranteed right to Freedom of Speech and also of the Press.
At its most basic, this means that you can say, write, or publish anything you want to and the government is not supposed to be allowed to do anything to restrict that.
However, we know that this is not completely true. Certain forms of speech are restricted because society has determined that the benefit of restriction far outweighs the infringement on freedom.
For example, fraudulent advertising, libel, false accusations, and other types of lying are considered criminal behavior. The classic example of yelling "Fire!" in a crowded theater falls into this category. These are restrictions on free speech put in place to protect the public from certain types of harm.
Copyright functions similarly, except it doesn't protect form harm. Rather, it promotes a benefit — artists having control over their work and being able to profit from it.
The restriction occurs because if someone had absolute freedom to publish whatever they wanted, that would include the ability to publish something originally written by someone else. The benefit of artist control comes at the cost of a restriction on freedom.
However, the restriction carries its own costs which may be harmful to society. If you need someone's permission to quote them in order to argue against their position or expose them as a liar, you would likely never get that permission. And this type of criticism is precisely the purpose of Free Speech and Free Press rights in the first place.
Fair Use restores lost benefits
Fair Use is a solution to this problem. It exempts certain types of uses from the restrictions of copyright in order to recover the benefits of Free Speech.
Fair Use allows you to make copies of a copyrighted work for the purpose of comment, criticism, or parody.
In some ways, it might have made sense if this had been called "Fair Mention," because the circumstances where the exemption applies are really cases of mentioning the work, rather than using it.
Fair Use is a gray area. There are no bright line tests that definitively determine whether a usage is Fair Use or infringement. There is, however, a four-fold list of criteria that judges are directed to use when determining whether a specific instance is Fair Use or not.
The four criteria are: > 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.
Point 1 is probably the most important — the context of the use itself. If you include a copyrighted poem into a collection of poems for sale, that is quite different than including the same poem in an essay about the poem.
Point 2, the nature of the work, is generally understood to deal with issues such as the cultural importance of the work, its newsworthiness, and whether it is a published or private work.
Point 3, the amount of the work used, has obvious reasonability. It should be noted, though, that use of a complete work (such as a reproduction of an entire painting) does not disqualify a determination of Fair Use.
Point (4), the market effect, is second in importance only to Point 1. A perfect copy of a work thinly disguised as a commentary may divert sales away from the original. On the other hand, an excerpt included in a positive review may increase the work's value. This criterion has everything to do with the extent to which the usage can serve as a substitute for the original work. Negative criticism that adversely affects market value can still be Fair Use.
Fair Use is gray
It cannot be stressed enough: fair use is a gray area. There are some uses that are clearly Fair, and some that are clearly infringement, but ultimately Fair Use is determined by a judge if and only if a case is brought to trial, which rarely happens.
One specific type of Fair Use that is almost never a gray area is parodies. Song parodies, movie parodies, book parodies. All of these are protected by Fair Use.
Weird Al Yancovic doesn't have to get permission before rewriting a song. (He usually does though, but that's just being polite.)
You should note, though, that a song cover is not the same as a parody. Changing all the words to make a song funny is Fair Use. Changing the voice to your own is not, no matter how funny you sound.
Using and Abusing Fair Use
Some people try to turn Fair Use into some sort of loophole for using copyright material without being guilty of infringement.
Often, people will claim that something is Fair Use if only a specific amount is played: "You can use six seconds of song, but not seven."
There are no such provisions. If you are engaging in this sort of loophole hunting, the chances are good that you are trying to infringe copyright.
There is no "technically its not infringement" loophole; Fair Use is a matter of human judgement, and that judgement involves considering motivations and intentions, as well as context and outcomes.
If you want to actually use something, get permission and pay for it. If you want to comment, criticize, or parody, then its Fair Use.
More on Fair Use and Fair Dealing
The secret of life is honesty and fair dealing. If you can fake that, you've got it made.
— Groucho Marx
What will you learn in this chapter?
This chapter will review the requirements for Fair Use and help you understand when it does and doe not apply to a particular circumstance.
Practical Understanding of Fair Use
Fair Use (or "Fair Dealing" in some countries) is an exception to the rules of copyright for the purpose of criticism, commentary, or parody.
The Fair Use exception means that you can reproduce a protected work (or a portion of it) if primary reason in making the copy is criticism, commentary, or parody.
Examples of Legitimate Fair Use
Suppose you wrote an essay that examined a famous poem by Maya Angelou, whose work is still under copyright. In your essay, you reproduce the entire poem, but do so one line at a time, with several intervening paragraphs of your analysis between them.
This would likely constitute Fair Use, because the purpose of your usage is specifically literary criticism and commentary.
Clips of a movie in a video review
Video reviews of a movie or television show frequently include clips of the original work in the video itself, even though this material is under copyright.
Because the video is a commentary on the movie, the video clips would qualify as Fair Use.
If you write new lyrics to an existing copyrighted song, and the lyrics are intended to be humorous, that constitutes a parody, and falls under Fair Use.
Reporting on a speech
When someone delivers a prepared speech, sermon, or other spoken performance, the text itself is copyrighted. However, if the speech or sermon is given in the context of a newsworthy event, portions of the text may be reproduced as part of a report on that event.
Linking to a news story
If you link to a news story or a blog post from your own site, it is customary to include a quote or two from the source material.
In this case the context of your link to the original material probably constitutes commentary, and the quotes are covered under Fair Use.
Things that are definitely not Fair Use
Posting clips or entire videos of movies and televisions on YouTube
You can include short clips in a larger commentary or criticism of a work, but simply reproducing a movie or TV show (or other work) does not qualify, even if it is a very small amount of it.
Using an image from Google to illustrate a blog post
It is very popular today to illustrate blog posts and other online stories with images that capture the themes of the story, even though they aren't always directly related.
Using a quick Google Image Search and pulling any image you find onto your blog is likely going infringe on copyright, unless the image itself has an Open License. It does not count as Fair Use, because you are using the image to illustrate your post, not commenting on the image itself.
Rewriting song lyrics for a serious (non-parody) purpose
Suppose you want to write a musical, but you aren't good at writing music. So you take songs that exist already and rewrite the words to fit your story. Unless you got permission from the copyright holder, that's infringement.
For rewritten lyrics to be considered Fair Use, they must be a parody, which means they need to be funny or satirical in nature.
Quoting all or most of a news story
Quoting a few lines of a news story in order to provide some context to a link is just fine, but what about copying the whole thing? That's infringement.
So where's the line between infringement and Fair Use in a case like this? Can you post half the story? Ten percent of it?
There isn't an obvious line. It isn't as if there's a specific word limit or article percentage that makes the difference.
The best question yourself in a case like this is whether your post will realistically function to send traffic to the original post, or if it is substantial enough to act as a replacement for it. If your post effectively replaces the original, then it isn't Fair Use — it's infringement.
Fair Use Guidelines
The previous chapter on Fair Use covered the four-fold test used in the U.S. to determine whether something counts as Fair Use or not. To briefly sum that up, the four areas of concern are:
- the purpose of the use, including whether it is for commercial or educational reasons
- the nature of the original
- the amount reproduced
- the effect of the usage on the commercial viability of the original.
Other countries have more or less specific guidelines, but they all tend toward the same basic reality: you cannot exploit someone else's intellectual property for your own commercial gain.
For example, in Australia, "Fair Dealing" allows for usage in the following specific circumstances:
- Research and study
- Review and criticism
- Reporting the news
- Providing Legal Advice
- Parody and Satire
This is a bit more prescriptive than the broad guidelines in the U.S., but the effect is the same.
Canada, to provide another example, is more like the U.S, and has a six-fold test to determine whether something qualifies as Fair Dealing:
- The Purpose of the Use
- The Character of the Use
- The Amount of the Use
- Alternatives to the Use
- The Nature of the Original
- The Effect of the Usage
These guidelines are remarkably similar to the U.S. rules, with the addition of the "Alternatives" test, which asks whether there was a way to achieve the same goal without reproducing the protected work.
In England and the United Kingdom, the guidelines are more specific than in the U.S. or Canada, similar to the Australian rules. Fair Dealing there is limited to:
- Non-commercial research and private study
- Criticism, review, and quotation
- News reporting
- Satire and parody
- Illustration for teaching
Different Rules, Same Result
The specifics of Fair Use (or Fair Dealing) are the different from country to country, but the specifics are not really what is ultimately important. They all converge on extremely similar guidelines regarding what type of reproduction should be considered Fair Use, and what amounts to Infringement.
Fair Use can only be invoked for purposes of commentary, critique, reporting, and parody.
Things that DO NOT make something Fair Use
There are a number of common misconceptions about what circumstances might cause a particular usage to be considered "Fair" or not.
- Age of the work — It does not matter if the work is about to go out of copyright next year. It does not matter if the author has been dead for a long time. Copyright is binary: something either is or is not under copyright.
- Out of Print — Unfortunately, copyrighted material is sometimes very hard to obtain. Books go out of print. Recordings might only be available on old phonograph records. Movies might have never been released into modern formats. None of those reasons have any effect on the nature of the copyright protection, or bear any influence on whether your usage is Fair or not.
- Religious Use — If you want to copy sheet music for a church service, that does NOT qualify as Fair Use.
- Non-profit Use — A non-profit organization may be given a little more deference or benefit of the doubt in unclear cases, but a non-profit organization isn't exempt from copyright law. You can't sell copies of protected material for a fundraiser or perform a copyrighted play without paying for it.
- Personal Use — The fact that you aren't planning to sell copies or use it for a commercial purpose does not automatically qualify something as Fair Use. You can't copy videos, albums, or books from the library or your friends in order to add them to your personal collection.
Summary: Stop looking for loopholes
Fair Use and Fair Dealing are exceptions to copyright law, and the exceptions were put into place for a specific purpose. Ultimately, it is the actual purpose of your own use that determines whether it is Fair or not. You cannot exploit someone's intellectual property for your own commercial or personal uses and then look for a technicality or some specific legal reason why it "counts" as Fair Use.
Digital Millennium Copyright Act
What will you learn in this chapter?
This chapter explains the important details of the DMCA and its implications for website owners. There is a special focus on what you should do if you are targeted by a DMCA takedown notice.
What is the DMCA?
The Digital Millennium Copyright Act law that was passed in 1998 and signed by President Bill Clinton. It's effects were far reaching, because its scope was exceedingly broad.
It is divided into parts:
Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act
Implements the WIPO treaties signed in 1996. Among other things, it criminalizes the development, production, or use of technologies that are designed to circumvent technical protection measures.
This means, for example, that if a media publisher includes technology designed to make copying difficult, and you circumvent that protection, you are guilty both of making the copy and also of circumventing technical copy protection.
It also gave an effective monopoly to a single manufacturer of copy-protection devices, by specifying that all analog video recorders support their proprietary solution.
Title II: Online Copyright Infringement Liability Limitation Act
This section lays out the specific requirement which service providers (like web hosting companies and ISPs) must follow in order to be safe from prosecution for copyright infringement conducted by others using their service.
This is the section which is most concerning to web site owners and people using the internet generally. It will be covered in more detail below.
Title III: Computer Maintenance Competition Assurance Act
Allows for copies of copyright-protected material to be made in the course of backing up data storage for repair and maintenance purposes.
Title IV: Miscellaneous Provisions
This sections covers a number of specific provisions relating to: the functioning of the Copyright Office itself; distance education; exception for libraries; exceptions for "ephemeral recordings"; streaming sound recordings online; and collective bargaining rules dealing with the transfer of rights in movies
Title V: Vessel Hull Design Protection Act
Adds copyright protection for the designs of boat hulls.
Notably, it only applies to boats under 200 feet in length.
Title II and You — Takedown Notices
Title II of the DMCA exempts service providers from liability for infringement that happens on their service as long as they follow certain rules. Chief among those requirements is the service provider block access to or forcibly remove content if they receive a Takedown Notice claiming that the content violates copyright.
This almost sounds reasonable, and probably sounded very reasonable to the drafters of the legislation: Afterall, if YouTube knows that your video is infringing someone else's copyright, shouldn't they be responsible for removing it from their platform?
Unfortunately there's a problem with this.
There is no burden of proof connected to the Takedown notice. The content in question may be infringing, but it may not be. No court decision or definitive proof is required when issuing a takedown notice.
This is particularly problematic in the realm of Fair Use. Fair Use includes, among other things, an exemption from copyright restrictions for the purpose of criticism or parody. But not everyone likes to be criticized of parodied. Legally, no suit can be brought against this kind of use. However, a disgruntled copyright holder can issue a takedown notice to a hosting company, a social network, or a search engine, and effectively remove the offending content.
This mechanism can also be abused by commercial entities that want to harm their competition. In 2009, Google reported that over half of the takedown notices they received were from competing businesses, and a third of them were not legitimate copyright claims.
Some service providers take the time to look into these claims, requiring at least some clear evidence of infringement. But many others do not. Some misunderstand the nature of Fair Use. Some simply find it easier to comply.
What to do if your content is removed because of a takedown notice
If your content is affected by a takedown notice, you may or may not realize it, and you may or may not ever be told about it.
Search engines are subject to takedown notices, and may simply de-index a URL that contains infringing material. You may notice a sudden drop in traffic, or a loss of search engine placement if you track that sort of thing, but you may not know why. Since Google and other search engined adjust their rankings regularly, you might just assume you are a victim of the algorithm.
Other service providers, especially web hosting companies, tend to notify their customers when removing content after a takedown notice. They may give you advance warning, or not tell you until after the fact. They may or may not provide information about why your content infringes on copyright, or even whose copyright is being infringed upon. They usually will not explain your rights.
The whole situation is very frustrating. There are, however, steps you can take to remedy the situation.
Step one: Determine whether you really think you were infringing or not
So you put up a video on YouTube of a Beatles song you ripped from iTunes, with pictures of your cat. You are probably infringing.
Be honest with yourself about whether the removed content really was infringing. If it was, let it go. Feel lucky the takedown notice was accompanied by a lawsuit, because it could have.
If you are certain that the content is not infringing:
Step Two: File a counternotice
You can send a counternotice to the service provider, explaining why you think the content should be left alone or restored. The reason is usually that the material is not actually under copyright (and so the takedown notice was issued in error) or the usage of copyrighted material is protected under Fair Use.
New Media Rights, a non-profit organization that educates and advocates on intellectual property issues, provides sample counternotice letters which you can customize to your situation. They also provide a much more detailed guide to dealing with DMCA takedown notices.
Alternatives to Fighting DMCA
If you are certain that you are not infringing, but you cannot convince your hosting company, you may be able to seek refuge using an offshore hosting company.
Certain countries are considerably less compliant with U.S.-based takedown notices and subpoenas than others. Sweden in particular has a very strong system of protection for journalists, which is why Wikileaks is hosted in that country.
Of course, if you are a U.S. person, you can still be sued for infringement, even if the content is held on a Swedish server. Hosting offshore only protects your content, not you.
Takedown notices are serious business. Even illegitimate claims can become extremely problematic if the claimant is particularly aggressive.
Be aware of who is sending the notice, what their reputation for prosecution is, the tone of the letter, and any additional demands which accompany it.
If you plan to hold your ground, be prepared to contact a lawyer.
The DMCA creates a number of copyright provisions which can have adverse effects on web site owners and other internet users. The biggest impact of the DMCA on most people is the use of takedown notices sent to service providers such as web hosts, social networking sites, and search engines. These takedown notices may or may not be legitimate, but service providers will generally comply either way. Targets of takedown notices can lobby for restoration of removed content by filing a counternotice with the service provider. You could even move your content offshore to protect it from DMCA takedown notices, though that will not impact your legal liability. Beyond that, you should speak to a lawyer.
Length of Copyright Protection
The length of a copyright depends mostly on when the work was originally created, and is affected by whether the registration was renewed and other factors. Copyright law has changed over the years, so rules that apply to works created today (most of what is discussed in this guide) do not always hold true for works create in the past.
- Works published in 1978 or later (including today) — Life of the original creator plus 70 years. For anonymous works, 120 years from the date of creation or 90 years from the date pf publication, whichever is shorter.
- Works published between 1964 and 1977 — 95 years from the date of publication.
- Works published between 1923 and 1963 — 28 years from date of publication unless it was renewed, then 95 years.
- Works published before 1923 are no longer protected by copyright and are in the public domain.
Works published before 1923 are open for reuse. Works published after 1963 are still protected, unless they have specifically been released into the public domain. But works published between 1923 and 1968 may or may not still be protected. This depends entirely on whether the copyright was renewed.
Unfortunately it is only possible to verify that a copyright has been renewed (by finding the renewal notice). It is very difficult to prove that a copyright was not renewed, because there is no complete and centralized, computer-searchable database for copyright renewals for works from this period.
Two partial databases are worth mentioning, if you are trying to track down this information.
- U.S. Copyright Office Online Records — Digitized records from 1978 onwards.
- Stanford University Copyright Renewal Database — Records of all copyright renewals made between 1950 and 1992, for books originally published between 1923 and 1963.
If you need something that cannot be found in one of these two databases, you will need to conduct a manual search in the Copyright Card Catalog, or pay an hourly fee to Copyright Office staff to do so. Additionally, many large public and research libraries may have a microfiche edition of the Catalog, which was published between 1979 and 1982.
Open Content: Giving and Taking for Free
What will you learn in this chapter?
This chapter introduces the concept of Open Content, which is a way of giving away or using other people's intellectual property for free. The main Open Content licenses will be discussed, along with how their permissions interact with conventional copyright law.
Using Free Resources
There are a number of useful compilations of freely-available content which you may want to use on your website. Images, sounds, music, video. All you have to do is add the word "Free" to a Google search for whatever you're looking for and you'll find more than you'll ever know what to do with.
You should know, though, that not all "free" content is equally free. There is such a thing as a free lunch on the internet, but there's also such a thing as a surprisingly expensive lunch.
Therefore, it's a good idea to understand the different common types of free licensing.
Giving away your own content
This guide is not primarily about Open Source or Open Content, so this is not the place to try to convince you that giving away (at least some of) your own content (writing, images, music, video) is a good idea.
However — it can be a really great idea. Allowing others to copy, remix, and adapt your work can give it a wider audience that you would otherwise be able to get. It provides value to the larger community. It can serve as advertising for other work you are producing which you do not give away for free.
If you're thinking about sharing your work in this way, it is a good idea to know a bit about the different potential Open Content licenses available, and their implications.
Open Content does not mean without Copyright
Some people think that Open licensing is somehow anti-copyright, or that you "lose" copyright when you release something into the Commons.
This isn't entirely true.
Open Licensing, in all its forms, rests on top of Copyright Law. It depends on it.
Some people — notably Richard Stallman — advocate the use of Open Licensing precisely because they are against copyright law. Other people think that Open and Proprietary (Closed) licensing can coexist and enrich each other.
Open Licensing is morally and philosophically neutral, you don't have to believe anything in particular about copyright law in order to use it, and using it doesn't suggest anything to others about where you stand on any issue.
When using a Open License for your work, you do not "give up" the underlying copyright. Copyright states that you have the right to grant anyone permission to use your work, and without your granting of that permission others cannot do so. Open Licensing provides that permission to others all at once, for everyone. You still own the copyright.
What's tricky about this is that once you have granted that permission, it cannot be revoked. You don't lose your copyright, but you do give up some of your specific rights related to it.
This is one of the reasons you should think carefully about different types of Open Licensing, and understand the different types of licensing available.
Creative Commons Licensing
The most common family of Open Content licenses is maintained by the Creative Commons organization.
Creative Commons provides several different licenses that each specify a different set of permissions being granted and conditions under which the permissions are granted.
The most basic and non-restrictive Creative Commons license is:
- CC BY — Attribution — Anyone using the work under this license must provide proper attribution to the copyright holder.
The only restriction places on CC BY works is that anyone using the work must credit the original creator.
All other CC licenses include the BY restriction, and then add some other condition.
The following add one additional core restriction:
- CC BY–NC — Attribution – Non Commercial — The work may not be used under this license for commercial purposes.
- CC BY–SA — Attribution – Share Alike — Works which include the licensed work, or are derived from it, must be released under the same license. This is the license which is most similar to Open Source software licenses.
- CC BY–ND — Attribution – No Derivatives — The work may be copied in its entirety, or included in a collection, but derivative works may not be created.
The following combine two of the above restrictions with the Attribution requirement:
- CC BY–NC–SA — Attribution – Non Commercial – Share Alike
- CC BY–NC–ND — Attribution – Non Commercial – No derivatives
In case you were wondering, the ND and SA restrictions are never combined because it wouldn't make any sense; if there are no derivatives allowed, then they can't be released under a similar license.
Creative Commons drafts these licenses and makes them available for content creators in a very easy-to-use format. You simply select the license you wish to use, and provide a link to it. They give you the exact words to use and even little icons. It's very convenient.
Open Publication License
The latest version of the OPL was drafted in 1999, by the Open Content Project. It is one of the earliest content-specific Open licenses in existence.
The license allows for derivative works and commercial use, and does not have a "share alike" provision. The Free Software Foundation considers it an acceptable license for documentation, but it is not compatible with the GNU Free Documentation License.
The Open Content Project maintains a copy of the license text, but currently recommends against using it. They suggest Creative Commons licensing.
GNU Free Documentation License
This is a license originally developed so that Open Source software released under the GNU General Public License could have documentation released under similar provisions. There is no reason that it cannot be applied to text of any sort; it is not limited to software documentation.
This license, however, does only apply to "documents" — that is, something primarily in text form. The license also specifies that it covers "functional and useful documents," so it is unclear if it could be used for "non-useful" genres like fiction or editorial.
The GNU FDL is a "copyleft" license, and has a "share alike" provision. In this way it mirrors the GNU GPL.
It is possible, at least in the U.S., to give up all intellectual property rights over a work and release it into the Public Domain.
Possible, but not recommended. This dangerous territory, so if you want to pursue it you're going to have to do you own research.
Roll your own license
If none of the existing Open Content licenses fit your particular needs, there's nothing stopping you from creating your own.
Be careful, though. Copyright law is complicated business. The successful licenses have been drafted by professionals, proofed by other professionals, revised, refined, and constantly tested. Creative Commons licenses have been upheld in court. Are you sure you're qualified to do that yourself?
A (somewhat) safer option for creating a specialized license is to use the Creative Commons CC+ framework. The idea here is that you use an existing CC license, which restricts more freedoms than you intend to, and then provide an addendum that grants additional permissions.
(Note that the reverse does not work. You cannot begin with a less restrictive license and then use the addendum to add additional restrictions.)
An example of this might be releasing a work under a Non Commerical license, and then specifying the terms under which commercial use may be permitted.
Using Open-licensed material
Just because something is "free" doesn't mean you can just copy it and put it on your website. Many free works include specific requirements that you need to follow in order for your usage to be legal.
The most common restriction is that you have to attribute the work to the original creator. Be sure to do this. Not only is it required, it's polite.
If you make money on your website, even if it isn't very much, you are engaged in a commercial endeavor. In this case, you are not permitted to use works licensed with a Non Commercial restriction.
If you wish to use a work that has a Share Alike restriction, you are going to have to release your derivative work under the same license. Be sure you are prepared to do so.
If a work has a No Derivatives restriction in place, be sure to use the work AS IS, without modifying it in any way.
Choosing a license
The Creative Commons licenses are the most well-known and well-understood content licenses, and you would likely do well to use them.
As to which "flavor" of CC license to select, that depends entirely on you. You have to balance your desire to control how your work is used with the value of giving up that control. Only you can decide where you fall on that spectrum.
Open Content licenses allow content creators to release their work for free, while retaining certain rights and placing specific restrictions on their use. The most popular licenses for this are the Creative Commons licenses.
If you are using work released under such a license, or thinking about releasing your own work, be sure you understand the terms of the license.
Differences of European Copyright Law
What will you learn in this chapter?
This chapter will explain some of the main differences between copyright law in Continental Europe and Copyright Law in the United States and other English-speaking countries.
Purpose and Limitations of this Chapter
This guide, as a whole, is oriented toward copyright law and related issues in the United States.
Copyright law is specific to each country, so different rules apply in different places. However, the basic principles are the same: Don't use content without permission.
What is different about the law in each country has to do with specifics of implementation: length of copyright, method of registration, specific classes of works covered. There are also some philosophical differences which affect the rules concerning fair use and moral rights.
This chapter is only intended to provide a brief introduction to these differences, and is by no means a complete guide to International Copyright law.
International vs. National Copyright Law
There is no such thing as International Copyright Law. All copyright laws are specific to a particular country.
However, the Berne Convention and the WIPO Copyright Treaty sets forth a minimum framework of copyright protection which all signatory countries must adhere to. Most member countries go above and beyond the requirements set forth in these treaties.
Automatic Copyright Protection
One of the requirements of the Berne Convention is that copyright protection must be automatic, without the requirement of registration.
The United States technically complies with this rule, but requires registration in order for someone to sue for damages related to infringement. In more complete accordance with the Berne Convention, most other countries do not have this requirement.
Length of Copyright Protection
The Berne Convention sets the minimum length of copyright protection for most works (excluding photography and motion pictures) at the life of the author plus fifty years. Photography is protected for 25 years from creation; motion pictures, 50 years from their first showing.
Most countries in the European Union exceed that requirement by protecting works for the life of the author plus 70 years.
The specific length of any particular copyright will depend on when the work was made, in what country, and when that country amended their laws to accord with the terms of the Berne Convention.
Conflicting Public Domain
Because of the different rules governing copyright length that are currently in place, or have been in place in the past, some works are in the Public Domain in some countries, while still being under copyright in others.
For this reason, if you run a website that compiles Public Domain works from around the world (like Project Gutenberg or the Choral Public Domain Library), it is important to declare which countries rules the collection abides by. This should be the country where the physical server is located, and it is usually better if this also is the country where the web site's owners or managers reside.
Additionally, you should make this country of jurisdiction known, and provide a warning that some works may not be in the Public Domain in all countries.
Continental vs. Anglo-American Copyright
As mentioned in the chapters on History and Fair Use, copyright in the United States is essentially a restriction on Free Speech, intended to provide a benefit to society at large.
England and its other former colonies share this fundamental philosophy of Free Speech, and so copyright law is implemented in a similar way.
Continental Europe, on the other hand, approaches copyright not from the standpoint of societal benefit from a belief in the inherent rights of the creators of a work of art. From this conception, the societal benefit is secondary, and the important thing is the protection of the rights of the artist.
This has implications for two areas of copyright implementation at the national level.
Moral Rights vs. Economic Rights
European copyright law recognizes the Moral Rights of a creator of a work of art. These rights are codified in different ways, but generally cover:
- The right to be recognized or identified as the creator of a work.
- The right to allow or forbid the alteration or distortion of the work and the making of derivative works.
- The right to decide whether the work should be made public.
Anglo-American countries tend to minimize or eliminate the conception of Moral Rights. For example, in the United States, moral rights only apply to unique works of visual art, such as painting and sculptures — and even this provision was only introduced in 1997.
For countries in the English tradition, economic rights are emphasized over moral rights. These rights include:
- The right to reproduce.
- The right to distribute.
- The right to communicate.
- The right to transform.
- The right to profit from the work.
- The right to allow or disallow others to engage those activities.
While these two different conceptions of creator's rights lead to a different emphasis in the crafting of national copyright law, the overall effect of copyright is similar under both philosophies. That is, economic protection generally ensures moral rights, and the protection of moral rights generally ensures economic rights are retained.
Because of the different understandings of copyright in European and Anglo-American culture, two different understandings of Fair Use (or "Fair Dealing") have developed.
In the U.S. and England, Fair Use is a fairly broad restoration of Free Speech and Free Press rights curtailed by copyright. (See the Fair Use chapter for more details.) In Europe, on the other hand, Fair Use is a set of specifically limited restrictions on the rights granted to copyright holders.
The effect, in both cases, is largely the same: Copyrighted material can be used for the purposes of commentary, criticism, or parody.
Copyright law in English-speaking countries tends to be based on a different philosophical and legal framework than copyright law in Continental Europe. Anglo-American culture has a stronger emphasis on the economic rights of creators, while Europe upholds their moral rights.
However, due to the influence of international treaties such as the Berne Convention, most "Western" countries have developed fairly similar legal protections for intellectual property rights.
Generally speaking, the day-to-day rules of dealing with copyright issues are the same: - Do not use content without permission. - Fair Use is not a loophole.
US Copyright Law Under Berne Convention
What will you learn in this chapter?
This chapter provides a broad overview of the Berne Convention Implementation Act of 1988 and its implications for US copyright.
A Brief History of the Berne Convention
The Convention for the Protection of Literary and Artistic works was signed in 1887 in Berne, Switzerland. For brevity, it's usually referred to as the Berne Convention. In most member countries, it provides automatic copyright protection for various types of works for the lifetime of the creator, plus an additional 50 years.
As of February 2016, 169 cooperating countries and states, known as Contracting States, have adopted the Berne Convention. Everyone who creates copyrighted work is protected in all countries that have ratified the Convention. This means that someone who creates a work in one country will get the same protection in all Contracting States.
Prior to 1988, the US was not part of the Berne Union, and its copyright laws were very different. All US works had to have a copyright notice or they would be available for copying by anyone. Additionally, any works protected by the Berne Convention, within the Berne Union, were not protected in the US. This led to copies of books being made and sold in the US, and accusations of lax control and scant regard for intellectual property followed.
Pressure mounted on the US through the 20th Century, until it finally adapted its laws and joined the Berne Union. While there is no international definition of "international" copyright protection, the Berne Convention is the next best thing.
The Berne Convention has three basic principles.
- Works created in any member country, called a Contracting State, get the same protection in all Contracting States.
- Works get automatic copyright protection. You don't need to do anything for copyright to be in place — it just is.
- A Contracting State can award extra copyright protection, beyond that provided by the Berne Convention. But if the State then drops its protection, the protection afforded by the Berne Convention may also become invalid.
Parts of the Berne Convention directly conflicted with pre-existing copyright law in the US. In its Berne Convention Implementation Act of 1988, the US was forced to make significant changes to its laws to modernize its approach and allow a compatible set of laws with the Convention. Congress tried to retain what it could of its pre-existing copyright laws, while adopting the same standards followed in the rest of the developed world.
What's So Different About the US?
In adopting these three principles, Congress had to strike out some of its old laws and flex some of the others to fit.
To be compliant with the second principle in the Berne Convention, Congress had to remove the requirement for a formal copyright notice for all works published after March 1, 1989, which was the date the Act came into being. But there are some complications to this.
The US changed some of the wording within the Convention, including the definition of the US as a Country of Origin, and the implications arising from that. For example, Congress decided that copyright could not be enforced in a court of law without being formally registered with the Copyright Office first, as a way to encourage copyright notices to be included as they had before.
There were also some other small changes in the Implementation Act. The US explicitly included architectural drawings as copyrighted items, for example, where this protection did not exist in the original wording of the Convention.
What you need to know
The technicalities and amendments in the Berne Convention Implementation Act of 1988 are lengthy and legally complex. However, there are some basic things you need to know about US copyright.
- The Berne Convention provides automatic copyright protection without the need to formally claim copyright on work;
- When it comes to the Berne Convention, the US is a Contracting State and member of the Berne Union, but it's also a special case and has amended some if its terms;
- US works that originated between January 1, 1978 and March 1, 1989 are only copyrighted in US law if they have a copyright declaration;
- US works published before January 1, 1978 are still covered by the Copyright Act of 1909;
- Work can be published, or republished, in any Berne Union State within 30 days of its original creation in order to be protected by the Berne Convention;
- Technically, US works have to be registered with the Copyright Office to provide full legal protection. However, the work may have protection without registration if it is published in another Berne country within 30 days of its publication in the US;
- Work published in a Berne Union country by someone who is not a resident of a Berne Union country may not be protected; protection may also be reduced in line with their native country's laws;
- If the Country of Origin is in doubt, the first country of publication is usually considered the Country of Origin;
- If a work is published on the internet, it's technically published in every country at the same time — the implications of this are complicated, because the Country of Origin is very difficult to determine.
The Berne Convention offers automatic copyright protection in 169 countries and states. In the US, there are some cases where the Berne Convention does not apply, or may be applied differently to other member states and countries.
International Copyright for US — Beyond Berne
The Berne Convention is the most important document in US Copyright law, spanning 172 countries. But many countries have separate agreements outside of the convention, and different rules apply.
Geneva Phonograms Convention
The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (known as the Geneva Phonograms Convention) was adopted in 1971. It has been ratified 78 countries or states, and governs sound recordings. Initially, it was created to prevent the piracy of music on audio cassette.
The Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite was adopted in 1974. It was ratified by 37 countries and states, and came into effect in 1979. It's part of a wider commitment to the various activities taking place in outer space, and specifically governs the transmission of TV signals via satellite.
Universal Copyright Convention
The Universal Copyright Convention was adopted in Geneva in 1952. In 1971, it was revised in Paris. This was an important convention when it was originally conceived. It was designed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) to offer an alternative to the Berne Convention, since many countries and states were unhappy with the its contents. They perceived it as prioritizing the rights of developed nations, while the Universal Copyright Convention covers many undeveloped countries, plus the Soviet Union (from 1973 onward).
The Universal Copyright Convention has now been superseded, in most cases, by the newer Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS (see below). That's because most countries are now members of the World Trade Organization, which oversees TRIPS.
WIPO Performances and Phonograms Treaty
This treaty was adopted in Geneva, in 1996, and ratified by 96 members of the World Intellectual Property Organisation. It was designed to protect the performers and producers of phonographic recordings.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is perhaps the most important outside of the Berne Convention. It was specifically intended to control cross-border intellectual property rights, and applies to all 162 members of the World Trade Organization. As such, it has rendered many older treaties obsolete.
TRIPS has wide-reaching implications for copyright in broadcasting, design, trademarks, patents, and biological classifications. It sets out the methods by which disputes can be raised and investigated. All members of the World Trade Organization must ratify TRIPS as a condition of membership, which means that it covers countries that have previously rejected the Berne Convention.
Beijing Treaty on Audiovisual Performances
Adopted in 1992, the Beijing Treaty on Audiovisual Performances sets out acceptable use of audiovisual performances under copyright law, including the rights of participating performers. It has not yet entered into force, as it has not been ratified by the minimum 30 states and countries.
Marrakesh VIP Treaty
This treaty was formerly known as the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. It was adopted in 2013, and bypasses copyright in the production of accessible books and materials, ensuring that the visually impaired can access them more readily. This is a new treaty, having been ratified relatively recently by the required minimum 20 states and countries. It is effective as of September 30, 2016.
Use of Pseudonyms With Copyrighted Material
Writing under a pseudonym is not an uncommon practice. Pseudonyms have been used throughout history by various people: writers, actors, monarchs, and even popes, either to conform to social norms of the time or to conceal their true identity.
In the case of writers specifically, it was pretty common for women authors to write under male names to increase their chances of getting published back when writing was considered to be a male profession. Nowadays, many authors continue to use pseudonyms for various reasons.
When it comes to writing under a pseudonym, you have to consider many factors, one of them being copyright.
Can You Copyright Work Published Under a Pseudonym?
The short answer to that question is yes. The Copyright Office allows you to register copyrights to anything you've published under a pseudonym with or without disclosing your real name. However, your decision on including your real name will affect the duration of the copyright term.
Usually, copyright lasts for the duration of author's life plus 70 years if you choose to disclose your real name. If you choose to publish your work under a pseudonym without disclosing your real name, the copyright term lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter; as outlined in The Copyright Office Fact Sheet FL101 (PDF).
How to Register Your Copyright With a Pseudonym
The Copyright Office considers a work to be pseudonymous as long as the author is identified on the copies or phonorecords of the work by a fictitious name.
They offer several ways to register pseudonymous works. The easiest and the safest method is to record your legal name under "name of author," followed by your pseudonym. You should also check "yes" next to the question "Was this author's contribution to the work pseudonymous?"
If you don't want to disclose your true identity, you have two options. You can provide only your pen name and state that it is a pseudonym or you can leave the author space blank entirely. Your pseudonym can also be used in the "copyright claimant" line but be warned that doing so can have legal ramifications when it comes to establishing the ownership of the copyright.
You will also have to provide a non-returnable copy of your work along with the corresponding fee. The application can be filed electronically or you can submit all the required documents through the regular mail.
Finally, bear in mind that a pseudonym will not protect you from any legal action that might occur as a result of your writing. Your pen name is not a legal entity and the final responsibility for your work always rests on you.
What About International Copyright?
Copyright laws differ from country to country. There is no unified law that would protect your written work internationally (PDF). As such, the copyright protection in a particular country depends on the laws of the country itself.
There is a silver lining, though. Many countries offer protection to foreign works under certain conditions which are greatly simplified by multiple international copyright treaties and conventions. The United States is a member of many treaties and conventions which deal with copyright and intellectual property laws so the scope of copyright protection available in foreign countries depends on the provisions outlined in those treaties as long as they are also available under that country's law and practice.
Get Legal Help
Before making the final decision whether or not to use a pseudonym, bear in mind that you cannot copyright a pseudonym itself just as you cannot copyright any other name. You can, however, be entitled to trademark your pseudonym (PDF) if it becomes identified with you or the books and other works authored under it.
Considering copyright issues can be a very gray area, when dealing with anything copyright related, pseudonyms included, you are strongly advised to seek legal counsel.
Problems With the DMCA's Anti-Circumvention Provision
Most of the time when you hear the Digital Millennium Copyright Act (DMCA) referenced, the focus usually revolves around how it's used to help copyright holders pull infringing works off the web. But there is a complicated provision built within the DMCA that many people are not aware of.
The anti-circumvention provision was originally written in order to help the entertainment industry fight piracy in the digital age. In section 1201 of the DMCA, the anti-circumvention provision bans the following:
- Any acts involving the circumvention of technological measures meant to control access to content or a product.
- Any distribution of tools or technology that will aid in the act of circumvention.
While there are certain exceptions whereby circumvention is allowed — like in the case of law enforcement, security testing, research, and so on. — the very narrow definitions of what is "acceptable", leaves the rest of the law open to interpretation. Because of this, the DMCA and its anti-circumvention provision are not being used as many originally expected.
Fair Use vs Profit
As we discussed in Chapter 6, Fair Use is an exception to US copyright law. Basically, a copyrighted work can be used by others — without penalty — for personal and/or non-commercial uses, including for the purposes of commentary, education, research, parody, and criticism.
Here's the problem: many forms of digital content require a sort of "unlocking" in order to view the content, research the underlying technology, or get past some other anti-piracy gatekeeper. So when users unlock that digital gate, they are intentionally committing an act of circumvention — even if it's for harmless reasons.
This is where we can start to see abuses of the DMCA provision. Rather than help copyright owners fight piracy, the anti-circumvention provision can be used to impede on the general public's right to Fair Use.
Because there were no specific clauses built into the anti-circumvention provision to allow for Fair Use, these two parts of copyright law are often at odds with one another. We've listed just two of many instances below:
Activision vs Brandon Wilson
When Activision, the maker of the Skylanders game franchise, discovered that hacker Brandon Wilson had reverse-engineered their game and shared insights online regarding his research into the system, they sent a cease-and-desist letter.
While reverse-engineering of a game for the purposes of research is one of the exceptions to the provision, it was the publishing of said research online that gave Activision the ability to issue their threat. They claimed that the information he shared could potentially show people how to decrypt their systems. While Wilson demonstrated his compliance within the provision, he ultimately chose to take his research offline.
US vs RealNetworks
There are a number of reasons why people would want to copy DVDs for personal use. They can remove commercials from a pre-recorded movie, remix or reuse clips for a YouTube original, and load movies to their computers so they can watch them on the go.
That's why the lawsuit against RealNetworks' RealDVD Software was surprising to many. The company had already sought legal counsel regarding the product, and devised a number of security measures to ensure that they would be acting in compliance with the law. In the end, their software was deemed illegal despite its fair use applications.
As you can see, the DMCA can and is used against people and companies in cases that have had little or nothing directly to do with maintaining the copyright owner's rights. Instead, the law can be used to preserve reputations, secure profitability, and impede competition.
Anyone involved in circumvention, reverse-engineering, or commentary related to the underlying technology of a product should plan on being extra cautious in their work. The anti-circumvention provision may not have been written with such people in mind. But as recent history has shown, the DMCA can be used against them all the same.
Copyright Section 108 Primer
For libraries and archives, exclusions to copyright law were necessary in order to accommodate their ability to distribute, reproduce, and preserve copyrighted works. While the provisions made for them are far from perfect, a lot has improved since the Copyright Act of 1976 first introduced these exclusive rights.
1976: The Introduction of Section 108
As our forms of media and entertainment changed in the middle of the twentieth century, so too did our technology for creating copies of those works. And so, with the passing of the Copyright Act of 1976, libraries and other educational non-profit organizations were given their own exception with Section 108: "Limitations on Exclusive Rights: Reproduction by Libraries and Archives."
In the original version of Section 108, it was stated that libraries and archives were able to make a single copy of a work if the following were met:
- It were for non-commercial purposes.
- The work were otherwise available to the general public.
- A copyright notice were placed on the copy of the work.
If all conditions were met, the copies could then be made for the purposes of preservation or to loan out to another library.
Section 108 in and of itself presented an issue to librarians and archivists whose practice required that three copies of an original work always be made: one for archiving, one as the master, and one copy. While libraries were pleased to have an exemption that better clarified this concept of "fair use," it wasn't enough.
1998: The DMCA Update to Section 108
With the passing of the Digital Millennium Copyright Act (DMCA), further provisions were made to Section 108. These were put in place to account for changes in photocopy technology, preservation procedures, and new digital storage formats.
In the 1998 revision, the following amendments were made to Section 108:
- For preservation purposes, three copies of an unpublished work can be made by libraries and archives.
- For replacement of a damaged, lost, or otherwise deteriorated published work, three copies can be made, but only if a replacement cannot be purchased for a fair price.
- Digital copies of these works can be made as long as they remain within the library or archives, and not disseminated to the general public.
- A copyright notice should appear on all copies created. If that's not possible or there is one missing, the library must clearly state that the work is copyright protected.
- Libraries, archives, and other non-profit educational organizations can copy or digitize a work or phonorecord when it's in the last 20 years of its copyright term. This, however, cannot be for commercial purposes and it must be proven that the copy could not otherwise be purchased at a reasonable price.
The DMCA provision for libraries and archives sought to remedy the shortcomings of the original issue of Section 108, though the fight for greater rights continues to this day.
2005: The Section 108 Study Group
In 2005, a group of copyright experts were tasked with reviewing Section 108 in the context of technology and digital advances in modern society:
"The Section 108 Study Group is a select committee of copyright experts charged with updating for the digital world the Copyright Act's balance between the rights of creators and copyright owners and the needs of libraries and archives."
Although their recommendations for change were submitted in 2008, a consensus could not be reached and, so far, nothing has been done with these suggestions.
Moving Section 108 Into the Future
As you can see, a lot of progress has been made since Section 108 was first introduced into copyright law back in 1976. That being said, as digital technology evolves, so too should a library's and archive's means for copying, distributing, and preserving works.
In US law, useful articles are items that are designed for a functional purpose. For example, a dining chair, a car, or a light switch would likely fall into the category of useful articles. Useful articles have a particular status, in that they are not protected by copyright.
However, a useful article may have copyrightable features. For example, a lightswitch may have a fancy surround. The functional part of the switch — the mechanics inside it — is a useful article, but the surround is a separate, copyrightable design. In order to be eligible for copyright protection, the functional element of the object must be separated from any distinct, creative element. This is called "conceptual separability."
Many legal cases have centered on the definition of conceptual separability:
- Mark Towle brought a case against DC Comics, arguing that he should be allowed to sell the replica Batmobiles that he makes. His argument is that the Batmobile is a car - a useful article. The judge ruled against him, saying that the Batmobile has both functional and creative elements, and under conceptual separability, the creative elements are protected under the Copyright Act. The Supreme Court has been asked to review the case.
- In the case of Varsity Brands Inc v Star Athletica LLC, the court was asked to rule on copyrightable elements of cheerleader uniforms. Here, the shape of the outfit was separated from its two-dimensional pattern and design. Varsity Brands argued that the design was a separate, copyrightable element to the functional uniform. The District Court for the Western District of Tennessee disagreed, ruling that the design was part of the function of the garment.
The Denicola Test
Determining useful articles is a complex area of law. As these cases prove, adding creative flair to a functional item isn't enough to ensure that it can be copyrighted. But if a design is instantly recognizable as a unique entity, that's a good indicator that it could be copyrighted.
US courts often rely on the Denicola test to settle disputes around useful articles. This test measures whether the artistic elements of an object are influenced by its underlying function.
The closer art and function are conjoined, the more likely it is that the object is subject to copyright. Conversely, if the function and artistic appearance of something can be separated, then those two elements are conceptually deemed to be separate.
An Introduction to Trademarks
Trademarks are usually associated with names and logos, but there are a broad range of situations where a trademark can be assigned. For example, it's possible to trademark a scent, a shape, or a melody. According to the Lanham Act (1947), anything that includes a "word, name, symbol, or device" can be considered a trademark in law.
Trademarks protect a business or organization's rights in the event that someone copies a business' name or visual identity. In addition, a trademark is designed to protect consumers, so that they know the goods and services they buy are genuine.
When a business uses a particular name or image in association with its activities, it is granted a basic form of intelectual property protection. This is called a common law trademark, and it's acquired as soon as the business makes something or markets itself. Businesses can signify that they are using a common law trademark by using the ™ symbol after the name or logo.
In order to increase that protection, the business must formally register a trademark. Once it's registered, it can use the ® symbol after its name or logo, and competitors are barred from using that trademark.
Copyright Registration of Photographs
As with any other type of creative work, photographs are inherently protected by copyright law. The second you take that photo — regardless of whether you decide to publish it or not — it is copyright protected.
While the process of legally protecting your work's copyright is easy, that doesn't mean it'll be enough to keep others from infringing upon your rights.
The Benefits of Copyright Registration
Stock photography websites like Shutterstock and iStock are a great resource for people looking to include high-quality photos within their own work. However, sites like these only offer access to photos once a payment is made in return for the licensing rights. There are free stock photography sites, too, though the quality and variety of work may not be on par on with paid sites, in turn leading people to other avenues to procure digital photography.
Why should this matter to a photographer? Well, if someone wanted to bypass the system of licensing rights, payments, and byline credits, you may discover copies of your own photography being passed off as someone else's.
For any photographer looking for built-in legal protection of their work, you'll want to register your photographs (see Chapter 3) with the US Copyright Office. While it might not stop infringement, it'll ensure you can take immediate legal action if or when it should occur. Consider the following scenarios:
- If you register your photographs before an infringement occurs, you may receive up to $150,000 in statutory damages.
- If you don't register, but still win a lawsuit against an infringer, you can only receive a payout for actual damages, which may be a difficult sum to define.
Basically, if you want to have legal proof of copyright and if you want to make the strongest case against any infringement, you'll need to register the copyright for any and all photographs you take.
The Process of Copyright Registration of Photographs
Now, in order to submit any photographs for registration, you'll need to define the following in order to determine which process to follow:
Work for Hire vs Sole Authorship
For photographs published by another source, photographers need to make a determination regarding ownership of the work. Under work for hire agreements, photographers most likely give the employer rights to their work, so contracts should always be checked carefully before registering any copyright.
In addition, if you've taken photos of people, other works of art, or someone else's property, you'll want to secure any and all model and property releases before registering your copyright.
Published vs Unpublished
Publication, in the context of copyright law, is all about the actual distribution of the photos. Your photos don't actually need to be published by another website or periodical in order for them to be considered "published." According to copyright law, purchased, downloaded, or copied elsewhere, is enough to place them into the published category.
Both published and unpublished photographs can be registered. Just make sure each photo you register has a unique title associated with it.
Single vs Group
If you have photos that comprise a set — say, as part of a calendar or book — you can register the entire collection with a single application and fee, just as you would a single photograph. This applies to both published and unpublished sets of photography.
For any collection you want to register, ensure the photographs meet the following criteria before submitting your application:
- Photographs were all taken within the same year.
- Collections are appropriately named, as is each individual photograph.
- Photographs are neatly assembled and zipped together in a single deliverable.
- You can verify that you are the sole author of every single photo.
Whether you shoot your photography digitally or on film, you can easily register your work with the Copyright Office. Once your photograph or collection of photographs is ready to submit, you can do so electronically using the eCO Registration System, or you can mail your application and copies of your work to the Library of Congress (PDF).
Works for Hire
If you've had a chance to read through the rest of The Ultimate Guide to Copyright, then you know all about how copyright law works, right? Well, there are always exceptions to the rule.
Typically, copyright is defined as the legal right to copy a work. When it comes to assigning ownership of that right to someone, it inherently belongs to the person who created it. But this is not the case for works made for hire.
Defining Copyright in Works for Hire
Works made for hire present an interesting complication to copyright law. Section 101 of the Copyright Act of 1976 set out to define the ownership rules.
What Is a Work Made for Hire?
When one party commissions, employs, and pays for someone else to create a work, the ownership of the copyright ultimately depends on the relationship between both parties as well as the extent of control one party exacts over the other. Here is how that determination is made (PDF):
If an employee created the work as part of their standard terms of employment, it is a work made for hire.
If an employee or contractor gave the requester ownership of the work in writing for use in one of the following ways, it is then a work for hire.
- A work included in a collection
- A work included in a film
- A translation
- A supplemental work to appear before, after, or within someone else's work (eg, a foreword, illustration, editor's note, etc)
- A compilation
- A work included inside another for the purposes of instruction or education
- A test
- An answer guide for a test
- An atlas.
That being said, the laws regarding works for hire still aren't as crystal clear as they could be. That's why, in 1989, the Supreme Court had to weigh in on the matter.
The Law of Agency
After James Earl Reid created a statue for the Community for Creative Non-Violence (CCNV), he attempted to register the copyright on the statue. And so did the CCNV. Because neither party defined the statue's copyright previously (or in writing), the issue went to court.
When the case arrived at the Court of Appeals, they ruled that this was not a case of work for hire. Reid was a contractor, but he had not created a work that fell under one of the pre-determined categories.
The Supreme Court then took up the case and determined that although Reid was a contractor, the work he created was not specially ordered by the CCNV, which meant that his status as â€œcontractorâ€ was up for debate. Because of this, the Supreme Court relied on the Law of Agency principles to come up with their decision.
Based on agency law's definition of "contractor" and "employee," they ultimately determined that Reid was an independent contractor in the case of this work. (See some of the questions they used.) Reid:
- Used his own tools
- Worked in his own space
- Managed his own schedule
- Paid for the delivery of the statue
- Received the same amount of compensation as other CCNV contractors.
In the next section, we'll briefly cover some special notes you should be aware of before trying to claim copyright over a potential work for hire.
Works Made for Hire: They're Complicated
For writers, photographers, artists, developers, and other freelancing or contracting individuals, copyright law as it pertains to works for hire is an important matter to understand. Once you've wrapped your head around the basics, familiarize yourself with these specifics.
Terms of Copyright
Standard copyright protection will last over the course of the creator's life, plus 70 years. For works made for hire, however, copyright lasts for 120 years after the work was created or 95 years after it was published.
Employment Relationship Status
Not every state has the same laws in place regarding an employment or contractual relationship.
California law, for instance, has special labor and insurance codes that actually use the term "work made for hire" as proof of an employer-employee relationship. While this may not present an issue for contractors, it might be an issue for employers who do not compensate or cover their contractors accordingly.
As you can see in Section 101's definition of work for hire categories, digital works are not included (because the law was written in 1976). Because the law has not been updated to include digital works — like website development or design, logo creation, and ghostwriting — it's important for both parties involved in these types of works to clearly define the relationship and rights in writing.
If there is one thing to take away about copyright ownership in works made for hire, it's this: get it in writing.
If you're a contractor and you're not sure if the work you create will be yours to own, get it in writing. If you're someone (a company, agency, or individual) commissioning a work to be created and you want to ensure you have the rights to it, get it in writing. In other words, if there is an exchange of payment for a work, it's always best to have a contract in place that clearly defines all matters of your relationship.
How Copyright Can and Can't Be Used
Copyright protects intellectual property from being copied by an unauthorized person or business. But copyright doesn't protect everything, and there are strict rules about what can and can't be copyrighted.
Ideas cannot be protected by copyright, because the law says that an idea does not involve a minimum amount of artistic expression. In US law, copyright only applies to "original works of authorship," meaning that there has to be a certain amount of creative effort in developing the idea. So it makes sense that a painting can be copyrighted, and so can a piece of music.
But words and phrases cannot be copyrighted. Even if your business has come up with a killer tagline, or engaged an agency to painstakingly craft a slogan, you can't apply copyright to a group of words.
Pseudonyms, titles (for example, names of books or movies), business names, ad slogans, and lists also cannot be copyrighted.
There are some crossovers that illustrate the concept well. For example, if you come up with a new hot sauce recipe, the preparation instructions may be eligible for copyright protection; they are considered a form of literary expression. However, the list of ingredients cannot be copyrighted. The ingredients list is considered to have required little artistic effort.
Trademarks are designed to protect both businesses and consumers, by ensuring that business concepts are not copied without authorization. This protects business investment, and it also prevents goods and services from being counterfeited or copied, potentially misleading the consumers they are marketed to.
Even if a name, word, phrase, or image is not eligible for copyright protection, it can still be considered a trademark, and can be eligible for formal registration. Registration isn't compulsory, but can be beneficial. Words and phrases can be declared trademarks even if they are not formally registered, too. Registered trademarks are marked with the ® symbol, while anyone can define an unregistered (or "common law") trademark by adding a ™ symbol.
In the US, trademark law is defined within the Lanham Act, a federal statute that grants exclusive legal right to use a trademark. Sections 42 and 43 are key, because they set out the way infringed party can enforce ownership. Courts look at whether the use of a trademark was likely to cause confusion, and allow damages to be awarded for infringement.
Even though an idea can't be copyrighted in US law, a discovery can. Patents are designed to protect inventions and innovations from being made, used, or sold by unauthorized companies or individuals.
Patents are registered and managed by the US Patent and Trademark Office (PTO), but millions of patent records are available free online. For example, Google provides its own US patent search covering the US and many other countries, with records dating from 1790 to the present day.
Copyright of Dramatic Works
Dramatic works are like any other form of intellectual property: the moment they're created, they are protected by copyright law. But as someone involved in the development of a dramatic work, do you know which parts of it are actually protected? As someone interested in reproducing a theatrical production, do you know what to do in order to organize your own production of the work?
In this chapter of The Ultimate Guide to Copyright, we're going to discuss why dramatic works deserve special attention and what to do to ensure your work (whether original or a copy) is properly protected.
Which Part of a Dramatic Work Is Copyright Protected?
Let's start with the basics. A dramatic work is something created for the sake of performance. Theatrical and operatic plays, movie and television screenplays, and radio scripts are examples of dramatic works.
When it comes to dramatic works, these are the specific parts protected by copyright:
- Published and unpublished works
- Works intended for a tangible medium of expression
- The script, narrative direction, and lines
- Specific scenes and plot
Note that all of these must be fixed in a tangible medium. So a dance that is filmed is likely protected by copyright, but a spontaneous dance with no tangible record is not.
This is what is not protected:
- The title of the work
- The idea or concept of the work
- The plan or proposal of an upcoming episode, series, or any other extension of a work
- Characters or names
- Choreography not intended to support a storyline forward (eg, exercise routines).
It's also important to be aware of copyright law regarding musical productions. Music is typically protected separately from a script or performance, and there are different rules as it pertains to copyright (more on that below).
Who Owns the Copyright to a Dramatic Work?
The answer to the ownership question should be a fairly straightforward one: the writer. However, there are a number of players to take into consideration with dramatic works:
- Writer: it doesn't matter if we're talking about a movie script or a play. The person who wrote the actual script, lines, scenes, and narrative direction will almost always own the copyright.
- Co-writer: there are often cases where the development of a dramatic work is a joint production, so it's not uncommon to find co-ownerships of copyright.
- Work made for hire: if a writer has created a work for their employer (or was contracted to do so), the copyright may belong to the employer. Read more on Works for Hire in Chapter 18.
- Director: there have been past cases where directors claim ownership over a dramatic work because they believe their artistic vision and interpretation of the script, scenery, and cues leads to a unique output of the work. However, those cases almost always rule in favor of someone else — usually the writer or the producer (if they've purchased the rights to the script).
- Composer: chances are very good that the person who wrote the script for the work is not the same person who wrote the music. If that is the case, the composer retains rights to the musical composition.
- Actor: because actors are working from a script and not actually responsible for the creation of the work, they cannot claim any rights to it. What they do have control over though is whether or not their performance can be recorded or broadcasted.
- Publisher or agent: some screenwriters and playwrights choose to assign rights to a third-party publisher or leasing agent. This person or company is then responsible for managing the licensing, publication, and protection of the dramatic work.
As you can see, there are many parties involved in the process of creating a dramatic work, which is why it's especially important for authors or other copyright owners to seek out registration.
How Do You Register a Dramatic Work?
You can find more information on the process of registering intellectual property in Chapter 3, "How to Get a Copyright, and What Registration Is."
Keep in mind that with dramatic works, you'll need to deposit one of the following "scripts" in order to complete your registration:
- Printed copy of the script
- Digital copy of the script
- Recording of the production
- Recording of the audio (if there is music).
What to Do If You Want to Perform a Dramatic Work?
Fair Use (see Chapter 6) is not usually an argument one can make when attempting to copy or perform a dramatic work. In almost all cases, if you intend on using someone else's work, you need to license the rights before doing so.
Here are the steps you should take:
- Check the public domain. Older works (like Shakespeare, Sophocles) that have not been updated since the copyright laws changed are free to perform, so always check there first.
- If in doubt, reach out to the author, producer, or their agent (whoever owns the copyright) to request a license to perform the work.
- For plays and other public productions, you'll want to let the copyright owner know: (a) the seating capacity for the venue, (b) ticket price, (c) number of performances, and (d) how you plan to finance your production, so they can properly determine the licensing fee or royalties.
- If you plan to include music within your production, you must contact the author of that work to obtain the license to copy and perform it. If the author is the same as the author of the work, you'll need to obtain "grand" rights.
- If the dramatic work is based on a piece of literature, you may need to secured the licensing rights to that as well.
Taking the Next Steps
If you're planning to create a dramatic work or copy the work of someone else, you may want to get professional help. With many different parties and moving pieces involved in the production of these works, it's important to tread carefully when it comes to this type of intellectual property.