Last updated: January 15, 2019
The Definitive Guide to Copyright: What Are the Rules of Copyright?
This resource is very long and detailed — the menu on the right will help you navigate it. But one of the most popular sections of this article is the one on copyright for Game Designers. You can go directly to it here: Copyright Law and Game Developers: What You Need to Know.
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.
Introduction: What Is Copyright?
This article will deal with all of those in subsequent sections, 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 article will walk you through the most important issues concerning copyright law and its practical applications to you as a webmaster.
The History and Philosophy of Copyright
This section 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 be 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
This section 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 “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 stand-out 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 is 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 US, 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 US 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.)
Registration Is Optional
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 US Copyright can be found at the US Copyright Office.
What Can Be Copyrighted and What Can’t Be
This section 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
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?
Fair Use is the allowance made for the use of copyrighted material for the purpose of commentary, criticism, or parody. This section 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 from 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:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
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 parody. Song parodies, movie parodies, book parodies. All of these are protected by Fair Use.
Weird Al Yankovic 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 it’s not infringement” loophole; Fair Use is a matter of human judgment, and that judgment 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 it’s 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
This section will review the requirements for Fair Use and help you understand when it does and does 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 the 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 on to your blog is likely going to 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 to ask 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 section on Fair Use covered the four-fold test used in the US 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 US, 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 US 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 US or Canada, similar to the Australian rules. Fair Dealing there is limited to:
Non-commercial research and private study
Criticism, review, and quotation
Satire and parody
Illustration for teaching.
Different Rules, Same Result
The specifics of Fair Use (or Fair Dealing) are 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.
Stop looking for loopholes
Fair Use and Fair Dealing are exceptions to copyright law, and the exceptions were put in 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
This section 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. Its 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 website 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 or 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 US-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 US 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 website 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.
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 More on Fair Use and Fair Dealing, 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.
Where This Leaves Us
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.
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 article) do not always hold true for works created 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 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.
US 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.
Differences of European Copyright Law
This section 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 Section
This article, 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 section 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 website’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 sections 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 but 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 US and England, Fair Use is a fairly broad restoration of Free Speech and Free Press rights curtailed by copyright. (See the Fair Use section 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
This section 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.
Berne Bottomline for the US
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 in 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 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.
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.
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 intellectual 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.
A trademark (sometimes referred to as simply a “mark”) is a word, phrase, design, or sound that defines a business’s product or service. Beyond that, the trademark needs to distinguish a business’s goods or services from the competition.
Unlike copyright which works on behalf of creatives, trademarks are more commonly associated with business and product owners that want to solidify and protect their brand’s unique name, slogan, or logo.
And, while the underlying purpose of a trademark is to protect a business’s identifying “mark,” it serves a long-term purpose, too. Businesses that trademark their goods and services are better able to reinforce their brand’s reputation.
Below you’ll find the five steps business owners should follow in order to establish, register, use, and renew a trademark.
Step 1: Define Your Trademark
Trademarks must satisfy a number of requirements in order to be legally protectable. Before you use or claim ownership over a trademark, you’ll first need to determine whether or not the trademark you’re seeking is valid.
Is this for a good or service?
Trademarks must represent either a product or a service and you must be able to provide clear proof of which one it is.
What is the form of the trademark?
Stylized font or design (like a logo)
Do you have proof that you’ve already used it in the sale of the product or service?
You must define whether your trademark is classified as use-in-commerce (meaning you already used it in sales outside of your state) or intent-to-use (meaning you have not yet used it for sales outside of your local area).
How strong is your trademark?
The strength of a trademark depends on its uniqueness in the marketplace. If it too closely resembles a related service or product or has the potential for conflict in the future, you may find your application for registration denied. Consider the following three areas of weakness:
Can your trademark cause confusion with another trademarked product or service?
If so, what is the similarity causing confusion? Is it because you use the same words or the designs are similar?
Finally, does the similarity occur between two products or services within related industries (like a shoe retailer and a clothing retailer)?
If you answered yes to all three of these, then your trademark will be too weak for approval. Make sure you’ve reviewed the USPTO trademark database as well as any local or common law trademark databases prior to finalizing your trademark.
How would you categorize your mark?
There are typically five classifications of trademark types. The following list ranks these trademark categories from strongest to weakest:
Fanciful: these are made-up words that cannot be otherwise defined.
Arbitrary: these are real words, but are completely unrelated to the product or service they are named for.
Suggestive: these are words that suggest some sort of quality about a product or service.
Descriptive: these are words or designs that are exact representations of the good or service they are used for.
Generic: these are the words that we commonly use to refer to a product or service.
Keep in mind that the lower on the list you go, the greater likelihood of your application being rejected. (Descriptive and generic trademarks almost always get rejected).
The United States Patent and Trademark Office (USPTO) also suggests you stay away from the following when creating your trademark:
Words that are difficult to spell, pronounce, or remember
Foreign terms that, when translated into English, fall into category 4 or 5 above
English terms that translate into offensive terms in other languages
Titles or names from well-known works or famous figures.
Step 2: Hire a Trademark Attorney
This isn’t technically necessary, but if you plan to register your trademark and later try to protect it from infringements, you’ll need an attorney’s assistance.
Step 3: Register Your Trademark
Businesses and product owners should always consider officially registering their trademark. While you can claim “common law” rights to your trademark, you won’t be able to legally protect it without registration.
In so doing, you’d essentially be putting your trademarked product or service (and all the money and time invested in creating it) at risk.
File an application with the USPTO. You can do so via mail or online. (Online is cheaper and allows you to track your application’s progress.)
Include a drawing of your trademark. A standard character drawing protects the wording of your trademark and includes words, letters, and numbers. A special form drawing protects the design and stylization of your trademark and includes designs, special fonts, colors, and other formatting.
It can take up to three months for the USPTO to make a decision on whether to approve or reject your application. If rejected, you can resubmit a new trademark proposal.
If no one disputes your claim to the trademark, the USPTO will issue a Notice of Allowance (NOA) within a month or two of the initial application approval. This notice states that your trademark is “allowed,” but not registered.
Within the subsequent six months, you need to file a Statement of Use that provides proof that you are using your trademark for the purposes of commerce. If you cannot do so within six months, file for an extension.
Within a month or two of receiving your Statement of Use, the USPTO will review and send you a final notice of approval and registration of your trademark.
Step 4: Use Your Trademark
Once you receive the NOA, you must then begin using the trademark or registration symbols to notify the public (and, more important, the competition) of the legal protection over your mark.
You will need to use one of three symbols to note your trademark.
A superscripted TM (™) should appear to the right of your trademarked product. (This can be used prior to registration.)
A superscripted SM (℠) should appear to the right of your trademarked service. (This can be used prior to registration.)
The R-ball symbol (®) should appear superscripted to the right of your registered product or service.
There are three ways you can write out the trademarked name in your company’s content (digital, print, or otherwise).
Use the trademark or registration symbol after every instance of the name.
Use the symbol after the first instance and then add an asterisk after every other instance. (You’ll have to put an annotation in the footer of your content to explain.)
Use uppercase, bold, or italics for the name in every instance. (You’ll have to create an annotation for this one as well.)
One more point worth noting here is usage. If you use your trademarked name in a manner other than which it was intended — and it catches on — you may lose rights to your trademark as it becomes too generic of a term.
Step 5: Maintain Your Trademark Registration
Unlike copyrighted work, trademarks have a very short lifespan.
In order to maintain your trademark registration, you’ll need to file a Section 8 maintenance form within five to six years of your application’s approval. Every ten years after that, you will then need to file a joint Section 8 and 9 form.
If you fail to file these forms within the set timeframe, you’ll lose your trademark protection and have to repeat the process of registration all over again.
International Trademark Information
Trademarks registered within the United States are not protected in other countries, so a separate application will have to be filed for each country in which you seek trademark protection.
Here are some of the more popular foreign trademark offices that business owners seek cross-registration with:
For information on other countries, visit the World Intellectual Property Organizations’s Directory of Intellectual Property Offices.
Do Your Trademark Research
While trademark protection and registration may seem like a simple consideration for business owners, there is actually a lot involved in the process of securing your rights over your professional property. So if you have a product or service worth protecting, get it registered ASAP.
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
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 How to Get a Copyright, and What Registration Is) 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.
Know Your Photography Rights
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 this article to here, 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 supplemental work to appear before, after, or within someone else’s work (eg, a foreword, illustration, editor’s note, etc)
A work included inside another for the purposes of instruction or education
An answer guide for a test
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 “contractor” 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.
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 section, 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 the section on it.
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 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 section More on Fair Use and Fair Dealing) 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 — but be careful because a translation may be copyrighted) 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 secure 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.
Open Content: Giving and Taking for Free
This section 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 article 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 than 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 an 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 US, to give up all intellectual property rights over a work and release it into the Public Domain.
Possible, but not recommended. This is dangerous territory, so if you want to pursue it you’re going to have to do your 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 provides 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-Commercial 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.
An Overview of the Public Domain
No discussion of copyright would be complete without a quick foray into the subject of the public domain. In this section, we’ll cover what it is, how works end up there, as well as the special circumstances you should be aware of as it pertains to your work and the work of others.
What is the Public Domain?
There are some who argue that any published work available to the general public technically resides in the “public domain.”
For the strict purposes of discussing copyright and intellectual property, let’s focus on the more commonly accepted definition of the term; that is, any work that does not have any copyright, trademark, or patent protection.
In other words, a public domain work is one that is freely available for use by the public and does not have an owner.
In terms of where the phrase “public domain” came from, the history on this is a bit muddled.
While we do know that the first copyright laws did not include clauses for public domain assignment, the British and French eventually found a need to label such works in the 18th and 19th centuries.
Alfred de Vigny is a good one to attribute this to as he was quoted as saying that expired copyrights forced works to fall “into the sinkhole of the public domain.”
The only problem with this quote is that it does not address the full scope of how a work may end up unprotected.
At the time this was spoken, it made sense that expiration would be its sole association, but times have changed as has our need to more clearly define the laws that govern copyright.
How Do Works Enter the Public Domain?
There are typically four different ways in which a creative work may end up in the public domain.
Copyright comes with a specific set of rules regarding the length of protection. Once protection ceases, the work enters the public domain.
This also technically applies to anything created before the advent of copyright law. For instance, all the works of Shakespeare, classic literature like, Don Quixote and Moby-Dick, and the Bible are all in the public domain.
- Failure to Renew
Renewal isn’t something copyright owners have to worry about so long as their work was created after 1978 — since renewal is now automatic (PDF).
However, if an owner fails to renew a work created before that year, then they stand to lose rights to their work and have it enter the public domain.
- Intentional Submission
In some cases (though rare), the owner of a work may intentionally choose to dedicate their work to the public domain and relinquish all rights to it. The World Factbook is an example of this.
There are certain things that will never be eligible for copyright and, consequently, that means they fall into the public domain. For instance, ideas or concepts, facts, mathematical theories, cooking recipes, federal government works, and short phrases belong to the public domain.
Special Notes About the Public Domain
As with everything else surrounding copyright protection (or lack thereof), there are some gray areas to be aware of.
Copyright laws are inconsistent around the world, so it’s important to pay attention to each country’s specific guidelines, especially as it pertains to copyright length. If you’re ever unsure, check Cornell’s quick reference guide.
For patents, most countries follow the same guidelines, in that a patent lasts for 20 years. Once that time lapses, however, the invention then enters the public domain.
Trademarks also have special rules that dictate the terms of protection. Unlike the other two types of intellectual property, trademarks can be protected indefinitely, so long as the owner continues to use the trademarked name.
Although certain works may exist in the public domain (as noted by the provisions above), translations and derivations of those works can be copyright-protected. For example, of the 13 major Don Quixote English translations, 8 are still under copyright protection.
As with everything copyright related, you should seek professional legal counsel if you have any questions. That is especially true if the issue is very important to you or potentially costly.
How to Dedicate Something to the Public Domain?
Let’s say that you want to give up all rights to your copyright protected work and dedicate it to the public domain. If this had been prior to 1988, all you would have to do was skip putting a copyright notice on your work.
The Berne Convention changed all that, however, so now any work created is automatically protected.
If you want to relinquish all rights to your work and notify others that your work is free for use, here is what you need to do:
If instead you want to grant free access to your work, but still want to retain ownership, you can explore the option of an Open License instead. Just be sure you’re clear on the differences between the CC0 “zero” license and this open license as there’s a big difference between them.
Copyright for Bloggers
For many bloggers, copyright law isn’t always something that gets taken into consideration until some form of infringement occurs — either to them or in accusations against them. And this is a major problem.
For publishing and news professionals, copyright law is something that’s taught very early on: here is what you can publish and here is what you can’t.
But in this digital age of Google images, social media photo albums, and lots of high-quality content readily available online, bloggers may find themselves in a sticky spot if they don’t familiarize themselves with the law.
In this article, we’re going to discuss copyright law for bloggers. We’ll explain:
What is legal and what isn’t.
Tips for protecting yourself from getting sued as a blogger.
Tips for protecting your work as a blogger.
Understanding What’s Right and What’s Wrong
In order to work within the legal parameters of copyright law, bloggers must first understand the basics. Here is a high-level overview to get you up to speed:
“Copyright” is just that: it’s the legal right to copy a work.
Copyright applies to any work, published or unpublished, at the moment of its creation.
Unless you have entered into a “work for hire” situation, you own the copyright to any piece of work you create.
Copyright notices and registrations are only necessary if you need to take legal action against infringement.
Infringement occurs when someone uses part or all of your work and claims it as their own.
Let’s discuss how bloggers can determine if the work they’ve created falls within the parameters of the law.
The Slippery Slope of Fair Use
There is one important “exception” to copyright law that every blogger absolutely need to know about. This is what’s known as Fair Use.
Fair Use basically says that a work is inherently copyright protected, but that there are certain circumstances when it’s okay for others to make use of that work.
These are some of the determining factors bloggers (and others) should use when deciding whether or not they can borrow from someone else’s copyrighted work:
If someone stands to gain anything monetarily from using the work, that will almost always be a violation of copyright law. On the other hand, non-commercial use is not always acceptable either, so it’s important to consider other factors as well.
2. Market Effect
While this is technically the fourth point built into Fair Use, it’s closely tied into the commercial and nature aspects of works, so it belongs here.
In sum, if a work can substitute and supersede by making use of someone else’s original work, this is more than likely going to be a case of infringement. Consider the following:
It is highly advisable not to include works or even trademarked names of products or companies if they exist within the same industry or space as you. This can lead to consumer confusion and could potentially help you profit just by referring to the competition.
Nominative Fair Use, however, is when trademarked names are used for non-commercial purposes. Typically, the trademarked name or copyrighted work is referenced for the sake of clarifying an argument or story, and not for the purposes of profit.
Bloggers need to be careful when writing about well-known public figures or their work. This is known as the right of publicity and can be invoked by those public figures if they feel that your work stands to profit from using their likeness, name, work, or an insinuation that you are endorsed by them.
3. Nature of Use
This criterion for determining the nature of the use of copyrighted material can get a bit murky, so tread lightly; consulting professional legal advice is a good idea. Here are some important points to keep in mind:
Creative works are copyright protected at the moment of their inception. Ideas for works are not protected.
Facts included in educational, technical, or scientific work are not copyright protected.
Segments of unpublished works may be more acceptable to use (pending no other conflict with the rest of the law) than published works.
If a work is used as parody, criticism, or commentary, it is typically acceptable under Fair Use. That being said, satire is not acceptable.
The case for derivative or transformative works can also be made. In other words, if you’ve altered the original in some way that it becomes something else, then it may be allowed under Fair Use.
4. Amount Used
If you use a larger portion of a work (or the entirety of it), you’re more likely looking at a case for infringement than if you were to cite a short snippet or passage to help your argument.
While the basic tenets of Fair Use seem pretty straightforward, it’s not always that simple.
Who’s to say that your parody work won’t be seen as a satire? What if the original artist doesn’t approve of you making much more money off the derivation of his work than he did? What if you only quoted a single sentence, but the author still considers any copying of their words infringement?
If you’re looking for some clear-cut examples of what is legal and what’s not, take a look at More on Fair Use and Fair Dealing.
Your Obligation as a Blogger
When it comes to copyright in blogging, it’s better to be on the safe side and simply not use other people’s work. However, if you should have a legitimate reason for including someone else’s words or images within your own, follow these guidelines.
If you’re going to use someone else’s idea (not the actual content, but just the concept), always provide attribution and link to their original work.
If you’re going to use someone else’s facts, always provide attribution and link to their original work.
If you’re going to include a video or an audio clip, always embed the file from the original creator’s source page so that it links directly back to them. If you use one from YouTube or Vimeo, ensure that the original content does not violate copyright law.
If you’re going to link to someone else’s content, it is okay to provide either a “surface” link to their home page or a “deep” link to a specific page that includes the content. Deep linking was previously disputed, but has been deemed acceptable under Fair Use.
If you’re going to use content from the government (eg, government documents, legal cases, federal or state statutes), these are all part of the public domain and acceptable to use.
If you’re curious as to whether a work’s copyright has expired and, consequently, entered the public domain, you’ll want to verify this either with the US Copyright Office or by referring to a website offering content from the public domain.
If you’ve encountered a Creative Commons license for images or content, note that the work is still copyright protected. What this means then is that the work is eligible for licensing by the author.
If you’re going to use someone else’s photos, but can’t find proof that they’re in the public domain or available for licensing, don’t use them. Purchase the license to a photo from a stock photography website or take your own photos instead.
As a creative professional, you owe it to other creative individuals to treat their work with respect.
Consider this the Golden Rule of blogging: what would you do or how would you feel if you discovered that someone ripped off your work — even in the most minor of ways — and profited from it?
Bloggers are no different than any other writer or content creator, which means they deserve the same amount of protection under the law.
Whether you’ve already found an instance of infringement or you’re nervous about it happening in the future, it’s important to understand your rights and to take action now to protect your work and yourself.
Here are some resources and tools you should start with:
Creative Commons License: for bloggers that want to encourage others to use your work (with proper attribution, of course), you’ll want to set up a Creative Commons license. You can set up your license for free on their website.
Google Alerts: this may be the most labor-intensive of all the tools, but it will help you easily track down cases of infringement if you don’t want to pay for Copyscape’s premium services. Just copy and paste a snippet of your content into a Google Alert and let the search engine identify copycats for you.
Copyscape: there are two reasons you’ll need Copyscape: 1) to quickly search and find cases where your content has been stolen on the Internet, and 2) to ensure that any contributing bloggers (or yourself) has not intentionally or unintentionally stolen anyone else’s content before publishing.
WordPress is the most popular blogging platform. These plugins will help you manage your blog. If you use another CMS, you may be able to find similar plugins or extensions.
Footer Putter: create a copyright notice and place it in the footer of your blog with the help of this plugin. For a valid notice, you’ll need to include three elements: the © (copyright symbol), the year the blog was created, and the name of the copyright owner.
Yoast SEO: you might not realize it, but your RSS feed is highly susceptible to site scrapers looking to steal your content and rank higher for it than you. Make sure you’ve updated your site’s Reading settings to only include summaries of your blog posts. Then use the Yoast SEO plugin to add a link back to your site in the header or footer of your RSS feed.
Image Watermark: one of the easiest ways to protect your images is to include a watermark on them. This also happens to be a great way to brand your images, too.
Knowing is Half the Battle
While you may be sure that you haven’t violated anyone else’s copyright, you might not be so sure about whether or not someone has violated your own.
For bloggers that are serious about growing their website, business, and reputation, it’s absolutely crucial to understand copyright law.
Copyright Law and Game Developers: What You Need to Know
Video game copyright can be a confusing matter for developers. It has a tendency to stir up questions you might not otherwise consider until something happens that forces you to think about them. For instance:
Do you need to copyright your game? If so, how do you do it?
What’s the difference between a copyright license and registration? Do you need both?
What do you do if someone steals your idea?
Why did you receive a DMCA takedown notice for a mod you created?
If you use similar game mechanics to someone else’s game but change everything else, is that copyright infringement?
Why are some fan creations acceptable while others aren’t?
You put a lot of time, money, and resources into building your video game.
Why let all that hard work go to waste only to leave your game unprotected? Or, worse, invest all that work into something, only to have it taken down because someone else believes you violated their copyright?
Game Developer Copyright Law: The Basics
As we’ve discussed, securing the copyright to your video game (or any other piece of intellectual property) is a simple matter. In fact, it’s automatic. The moment you create your video game — whether published or not — it is copyright protected.
For developers in search of legal protection over all aspects of the game, there are a number of laws in place to provide you with (nearly) full coverage:
Copyright: this will protect the creative components, which includes things like the story, characters, design, music, etc
Trademark: this will protect your company’s name, the game’s name, logo, and any other brand-associated imagery or messaging.
Patent: this will protect inventions. This probably won’t apply to most game and mod developers, but if you should happen to develop a new game mechanic, you can have it protected by a patent.
Now, it’s important to note that while copyright protection is automatic, it’s sometimes not enough to stop others from stealing (or borrowing) your original, creative content.
That’s why you’ll see that most games on the market include a copyright notice and have their copyright registered with the United States Copyright Office.
While those aren’t enough to prevent infringement, they will help in the fight against it down the road (if it comes to that).
A Word of Caution
Copyright law and infringement happen to be a particularly sticky area when it comes to video games.
Whereas with other types of creative works — like literature or music — it’s very clear when someone has infringed upon someone else’s copyright, that’s not always the case with video games.
And, to complicate matters further, there are reasons why developers may choose not to take action against infringers. (We’ll talk more about this in a bit.)
As a game or mod developer, you don’t know what the future will hold. But to be on the safe side, it would be in your best interest to formally register and place a notice on any and all games you make.
The Complicated Matter of Video Game Infringement
Okay, so now that we’ve covered what video game copyright means, let’s talk about infringement.
Copyright infringement basically means that someone has copied your original content in some way, shape, or form. There are some exceptions to this, and they’re what is known as Fair Use.
The Grey Areas of Fair Use
Fair Use is, in essence, the exception to copyright law. It says that if someone has copied a work for the purposes of parody, criticism, or commentary, then it is acceptable. This is why copyright law can become especially tricky for video games.
Technically, a fan creation is a derivative work of another video game, which means developers of fan creations need to be very careful.
Game developers own the copyright to derivatives, sequels, and all creative content within their game (including characters, setting, and the storyline), which could potentially leave fan creations open to copyright infringement lawsuits if they too closely follow the original.
Game Mods and Add-Ons
Whereas fan creations are entire games built around a related story from another game, game modifications (also known as “mods” or “add-ons”) are not.
For example, in a massively multiplayer online role-playing game (MMORPG) like World of Warcraft, a mod might add a special graphical display of healing.
Because mod developers are usually making modifications to games they do not hold the copyright to, they can find themselves in those murky waters between copyright infringement and Fair Use.
There are four points that may be argued against infringement in the case of derivative works, so it’s very important — no matter which side of the fence you stand on — to understand Fair Use and how it may be used to protect your game.
The Digital Millennium Copyright Act
There is another important part of copyright law that all game and mod developers need to familiarize themselves with and that’s the Digital Millennium Copyright Act (DMCA).
Being a game developer, you’ll most likely deal with two very specific types of infringement. One is where another developer steals your creative content for their own video game.
The other is when someone shares your video game online without permission to do so — and this is where DMCA comes into play. More on that below.
Taking Action Against Infringement
If you’re concerned that someone has infringed upon your copyright, there are certain measures you can take to confirm, confront, and ultimately take down the infringing work:
Step 1: Verify that you have registered your copyright with the US Copyright Office.
Step 2: Place a clear copyright notice on your website and on your game, if you don’t already have one.
Step 3: Place an End User License Agreement (EULA) on your website and on your game, if you don’t already have one.
Step 4: Make a copy of the infringing work for future reference (and legal documentation).
Step 5: Review the laws regarding video game copyright once more and determine whether or not the work officially constitutes infringement.
Step 6: If you have found a case for infringement, you’ll need to consider your options. You can:
Reach out to the offender with a personal cease-and-desist letter.
Reach out to the offender with a cease-and-desist letter from your lawyer.
File a lawsuit against the infringing developer.
To Sue or Not to Sue — The Decision’s Up to You
You’re probably wondering why, after all that, you’d consider ignoring a copyright infringing work, right? Well, there are a number of reasons why developers have chosen not to pursue any legal recourse against offenders:
It costs money to engage with a lawyer.
It may bring unwanted negative attention to you.
It may anger fans if you cause their favorite game to get pulled down.
It may be beneficial for you to leave it up.
The argument as to whether fan creations, add-ons, and mods are copyright infringing works will be something you have to decide on your own since every case is unique.
Game mods and fan creations are a fairly accepted part of the gaming industry these days, so it can be difficult to make that choice to take action against them — especially when you consider what they can do for your own game in terms of finance, reputation, and so on.
For the most part, game mods and add-ons serve to make improvements upon a game. Whether they be single-player, multiplayer, role-playing, online, mobile, or otherwise, game mods give consumers more variety and sometimes better game-play through their modifications.
And this is why some developers choose to ignore copyright infringement since these mods can often improve upon their intellectual property.
When it comes to fan creations, some developers choose to look the other way as well. If a game is popular enough where it has a large and dedicated fan base, developers may actually welcome fan creations, especially if they continue to make fans happy and increase their own game’s sales.
Of course, there is always going to be the case of the rogue developer who takes it too far and totally rips off a storyline from another game or creates a mod that helps players cheat. These are the sort of circumstances you’ll want to watch out for as a game developer.
By understanding copyright law and how it can protect your game from these sort of infringements, you’ll be able to set yourself up properly from the get-go and take the appropriate actions when necessary.
Applying Copyright Law to Game Development
The subject of copyright infringement can be a difficult one to tackle as a game developer, especially if you’re feeling torn between preserving your intellectual property and making fans happy.
Whether you’re an independent developer or you’re working with a large gaming company, having a solid understanding of video game copyright law will help you make those big decisions later down the road.
Investigating a Work’s Copyright Status
The internet is a goldmine of information and near-limitless access to content. It’s tempting to Google for an image that you need, and then re-use content without properly checking who owns it. You might also want to reproduce video or written works that were produced many decades ago. But republishing other people’s work is potentially illegal, and carelessness carries the same penalties as deliberate piracy.
If you publish stolen content on a website, that content could be removed from your web host’s servers. The Digital Millenium Copyright Act compels web hosting companies to remove the content immediately, and ask questions later. Remember: the DMCA will apply to you if your website is hosted in the US, so this law has international repercussions.
If you are beyond the reach of the DMCA, copyright theft could land you with a court summons, a fine, or a Google penalty, depending on what you use, and how you share it. Even if you didn’t intentionally steal something, you won’t get away with it when you’re caught, so proper investigation is critical.
Some of the differences between different countries are nuanced, and difficult to summarize, so the following guides and links apply mainly to the US.
Basic Principles of Copyright
Copyright for a work is not internationally applicable, and rules differ from country to country. Treaties and conventions have been adopted between countries to try to smooth out the differences and create a consistent system. These treaties help to make different countries’ laws compatible with each other, which can help you to determine the copyright status of a work more easily.
You’ll need to know the territory where the work was published. That will help to determine its status, and your rights to use it. Additionally, knowing the date of publication will give you a clue as to whether its copyright is still valid, or whether it has lapsed, which would place the work in the public domain.
It’s safe to make the following assumptions:
- Anything that you did not create is likely to be copyrighted to someone else, even if there is no copyright notice alongside it.
- Even if a work is not formally registered, it would have been granted copyright protection automatically when first published, assuming it was published in a country signed up to the Berne Convention.
- There are some notable cases where works can be used freely. For example, under a particular license, you may be permitted to re-use something in a non-commercial context.
- Copyright lapses after a certain number of years, although time limits vary.
- Fair Use is a handy principle that allows for limited publication of copyrighted material for legitimate reasons (for example, a photocopy of a few pages from a textbook for study purposes). This may or may not apply to you.
The issue of registration is also a crucial point. In the US (and all Berne countries), it isn’t necessary for the creator to register a work with a national Copyright Office in order for it to be copyrighted. But under US law, registration is essential if copyright is infringed and the issue goes to court. What’s more, if the work was registered within 3 months of publication, the copyright holder can also seek additional damages if copyright is infringed.
In practice, it’s sensible to engage a lawyer before republishing anything that you aren’t sure about. International copyright cases are usually complicated, and penalties can range from $300 to $15,000 per work, plus legal fees.
How to Check Copyright
In the US, copyright status differs according to creation date, renewal date, and whether the item was formally registered. Unregistered works also come under different laws, depending on whether they were created by individuals or companies. The US Copyright Office recommends that you familiarize yourself with four key laws, initially:
- The Copyright Act of 1976 (PDF)
- The Berne Convention Implementation Act of 1988 (PDF)
- The Copyright Renewal Act of 1992 (PDF)
- The Sonny Bono Copyright Term Extension Act of 1998 (PDF).
For almost a century, the US Copyright Office kept detailed records about the copyright status of thousands of works. These records exist on a mixture of formats, including paper catalogs, microfiche, and online records.
The US Copyright Office retains information on all registered works from 1870 until the present day, and its website provides more information on accessing different types of records. Some are available online, whereas paper and microfiche catalogs (known as Catalog of Copyright Entries) are also provided at selected libraries.
Some of these older records are currently being digitized. 674 of the catalogs are available online at archive.org, too.
If you’re lucky enough to find a match within the US Copyright Office archive, you could find your copyright query is resolved faster than you expected. But there are a few important reasons why old records — including the Catalog of Copyright Entries — cannot be completely relied upon:
- Old records don’t take usage rights into account. So while you may find the copyright holder’s name, you won’t know anything about rights or licensing.
- Contact details for copyright owners are very likely to be incomplete. So simply knowing the name of the copyright holder may not get you very far in determining the copyright status.
Conducting a search at the US Copyright Office
For complex queries, you may need to visit the US Copyright Office in person, at the Library of Congress. Depending on the level of detail you need, you may have to pay a fee to retrieve relevant documents.
You’ll also be charged a fee if you don’t search for things yourself, although staff will help you to self-serve if you want to try.
Fees are complex, and it can take days for information to come back, so this isn’t necessarily the most agile method of getting copyright information. In addition, the Copyright Office can’t promise a conclusive answer to every query. But sometimes, it’s the only way.
If you do need to conduct a search, or pay a fee, see the US Copyright Office’s paper: How to Investigate the Copyright Status of a Work.
Check Copyright in Other Countries
Just because something is out of copyright in the US, that doesn’t mean it is out of copyright everywhere in the world.
Many countries are signed up to international copyright treaties. The Berne Convention is the most important, since it supersedes many other conventions, and has the widest membership. The World Intellectual Property Organization Copyright Treaty covers important copyright conventions relating to digital publication.
Our Beyond Berne section provides information about some other important copyright treaties.
Additionally, some countries have their own national copyright office. For example, the UK Copyright Service Information Center provides information about copyright, trademarks, and patents in UK law.
- US Copyright Digital Slider: choose the date of the work, and its publication status, and this slider gives an indication as to its likely copyright status now.
- Copyright Term Calculator: use this wizard to determine the likely copyright status of a work.
- EU Public Domain Calculator: this calculator helps to determine whether a work created in an EU country is in the public domain now.
- What is the Digital Millenium Copyright Act: this article touches on some of the ways DMCA cannot be used in disputes.
- Definition of Fair Use: provides the UK Copyright Service’s ideas about Fair Use.
- Definition of Fair Use provides the US Copyright Office’s ideas about Fair Use.
Intellectual Property Court Cases
As the internet has evolved, concepts like copyright, intellectual property, and Fair Use have been constantly tested and revised.
Fast internet connection speeds have made it easier for everybody to share media, and the Digital Millenium Copyright Act was devised to try to deal with the resulting intellectual property theft.
The internet wasn’t the only invention to change the way we think about intellectual property. The humble tape recorder and photocopier also introduced the possibility of copyright violation on a large scale.
Many important court cases redefined the concept of intellectual property in a digital context, or served as important test cases for future discussion of copyright on the web.
Sony Corp of America v Universal City Studios
Sony Corp of America v Universal City Studios is a 1984 lawsuit, best known as the “Betamax case.” Sony had developed Betamax in the late 1970s, and movie studios were immediately nervous that the device would be used to infringe copyright.
In the 1984 case, the court ruled that individuals should be able to make copies of TV shows for personal use. The outcome was critical in cementing the success of the VCR among consumers, and had wider repercussions for the concept of “private time-shifting” as a Fair Use activity.
Felten v RIAA
The Felten v RIAA case centres on the right of a private individual to make copies of music for their own use. Edward Felten, a professor at Princeton, lectures on ways to get around copy protection.
The Recording Industry Association of America (RIAA) threatened to ban the publication of his research. Professor Felten appears to have withdrawn his paper.
MPAA v 2600
This case also centered around the DeCSS application for DVD copying and decryption. The Motion Picture Association of America sued 2600.com on the basis that it hosted DeCSS, software that could remove copy protection.
Newmark v Turner Broadcasting System
In 2001, Turner Broadcasting System was sued by a group of studios, TV companies, and cable networks.
Turner Broadcasting System had developed a VCR device that was capable of cutting advertisements out of recordings, as well as the functionality to duplicate recordings to other compatible recording devices.
This case was a very early example of the entertainment industry joining forces to quash technology that could change the way its content was used. The company behind ReplayTV went out of business in 2003, and the company that purchased the rights to the device removed the controversial features.
Blizzard v BNETD
BNETD ran a gaming server that allowed players of a game produced by Blizzard to play against each other online. Blizzard claimed that BNETD violated the DMCA by reverse-engineering its own code, so that BNETD gamers could play their games on third-party servers, without a valid CD key.
Blizzard won the case, but the ruling has been subject to some criticism because it could theoretically limit consumer choice. Blizzard claimed it as a victory against piracy. The code produced by BNETD was subsequently used in other jurisdictions.
Jon Lech Johansen Case
Jon Lech Johansen, also known as “DVD Jon,” was instrumental in discovering how content scrambling algorithms were used to obfuscate DVD content.
When he was taken to court in Norway in 2002, the US DVD Copy Control Association and Motion Picture Association complained that his software infringed copyright.
Johansen claimed that he wrote the front-end for his software, DeCSS, but another developer was responsible for the code that decoded the DVD video.
The US DVD Copy Control Association and Motion Picture Association lost the case against him, as the Norwegian courts ruled it was legal to make copies of DVDs for personal use.
RIAA v Verizon
In 2002, the Recording Industry Association of America (RIAA) brought a case against telecommunication provider Verizon, arguing that it should identify users that were suspected of illegally downloading mp3 files after receiving a subpoena.
The court ruled that the DMCA does not allow a copyright owner to issue a subpoena to obtain personal information.
United States v ElcomSoft
The United States v Elcom Ltd case was heard in 2002, and was specifically related to the Digital Millennium Copyright Act (DMCA).
The case focused on Advanced eBook Processor, an application that allowed users to circumvent copy protection techniques in eBook creation software (particularly software owned by Adobe).
ElcomSoft, and its employee Dmitry Sklyarov, were found not guilty. ElcomSoft is a Russian company, and Advanced eBook Processor did not infringe copyright law in Russia.
Kelly v Arriba Soft Corp
Photographer Kelly brought this case against Arriba Soft Corp, the company behind the Ditto search engine. The search engine indexed and stored thumbnail versions of Kelly’s photographs, but it did not store the full-sized version on its own server.
The court ruled that search engines could use thumbnails under Fair Use. Technically, default judgment occurred in Kelly’s favor, but by then, Arriba Soft Corp had gone out of business.
RIAA v The People
When file sharing was new to the internet, the Recording Industry Association of America (RIAA) sued individuals and peer-to-peer networks, with the aim of stamping it out. RIAA v The People was a 2003 case against 261 Americans that it said had shared music illegally online.
Within 5 years, the number of people it had sued was said to be in the tens of thousands. The RIAA announced in 2008 that it would suspend its program of litigation, having allegedly spent millions of dollars on lawsuits, collecting damages amounting to a few hundred thousand.
None of the lawsuits resulted in additional royalties being paid to the artists whose material was shared.
321 Studios v Metro Goldwyn Mayer Studios
321 Studios produced DVD copying software, DVD Copy Plus and DVD X Copy. In 2004, it sought judgment that its products did not violate the DMCA, but it was not successful. It was prevented from making or distributing DVD copying software, and went out of business soon after.
ALA v FCC
In this case, the American Library Association sued the Federal Communications Commission after it planned to prevent certain TV shows or movies from being recorded on receiving equipment.
This protection mechanism would have taken the form of a flag, sent at the beginning of a broadcast, which would have determined the license and usage rights.
It planned to introduce this flag in 2005, but the court ruled that the FCC did not have the authority to regulate devices that received signals, but did not send them.
Chamberlain Group v Skylink Technologies
Two rival makers of garage door opening equipment went to court in a DMCA case. Skylink made replacement remote controls for Chamberlain’s doors, but Chamberlain argued that this circumvented its ‘rolling code’ technology, and was a form of descrambling.
The court ruled that consumers were allowed to use third-party remote control devices.
Lexmark v Static Control Components
Lexmark is a printer manufacturer. It had set up its printers to only accept official printer ink cartridges, using a special code to “lock out” empty or third-party cartridges. Lexmark brought a case against Static Control Components, a microchip manufacturer that was able to embed its own chips into recycled cartridges.
Consumers could purchase recycled cartridges with SCC’s chips to circumvent Lexmark’s restrictions. At the center of the case was the DMCA, and the rights of a third-party to copy Lexmark’s ‘lock out’ code.
Judges ruled that the code was functional, rather than a creative idea, and was therefore not subject to copyright protection. SCC successfully sued Lexmark for misrepresentation. The ramifications of the case were wide-reaching, and the case ran for 10 years.
Online Policy Group v Diebold
In this lawsuit, Diebold claimed that it held copyright for the contents of its own corporate emails, and took the Online Policy Group to court for publishing them. Many of the email related to problems with its electronic voting equipment.
The email had been stolen during a hack, and republished on various websites. The Online Policy Group had refused to comply with a DMCA request demanding that it remove the emails from its servers.
Diebold was found to have misused the DMCA, and the judge found that the leak was in the public interest. Additionally, the court ruled that the emails were not shared for commercial purposes, and therefore came under Fair Use.
MGM v Grokster
In 2005, MGM Studios Inc successfully sued Grokster Ltd for copyright infringement committed by its users. Grokster had won two previous hearings, when judges decided it could not be held accountable for the actions of peer-to-peer software users.
In this case, judges unanimously decided that the software was clearly designed to infringe copyright. The resulting lawsuit, Grokster was forced to pay $50 million in damages.
Texas v Sony BMG Music Entertainment
The state of Texas sued Sony BMG in 2005, alleging that Sony was knowingly distributing CDs containing spyware. The MediaMax software used as a copy protection tool was cited as a potential risk to information security.
Each Sony CD covertly installed this software with no means to detect or remove it. The MediaMax software could then be exploited by hackers unrelated to Sony, and sent data about the user’s behavior. In total, this software was present on around 22 million Sony CDs.
Sony lost and was forced to pay $750,000 in legal fees to the state, while also organizing a returns program, paying $150 per affected computer, and making consumers aware of its MediaMax tool.
Marvel v NCSoft
Marvel sued game makers NCSoft, claiming that NCSoft users could make characters that infringed its own copyright. Specifically, it related to game characters resembling superheroes in its City of Heroes game.
Prior to the judgment, the judge pointed out that many characters had been created by Marvel employees or contractors. Marvel and NCSoft eventually reached a settlement.
Perfect 10 v Amazon.com
Perfect 10 is an adult-oriented publisher that claimed Amazon.com was infringing its copyright, along with Google, by indexing thumbnail images that had been used without license on unrelated websites.
This case was brought in 2006. After appeals, Perfect 10 lost the case, and the images were determined to be published under Fair Use.
Diehl v Crook
In 2007, Jeff Diehl was the editor of 10 Zen Monkeys, a blog that used an image that Crook said that he owned. Diehl had written an article about Michael Crook, specifically focused his activities “outing” Craigslist personal ad users.
Under DMCA law, Crook would have been entitled to have the image removed from his server. However, the image that Crook objected to was not owned by him. The case was thrown out, and Crook was compelled to take a course in copyright law.
Sapient v Geller
This 2007 case was brought after Uri Geller, a TV personality and paranormalist, disputed the use of a video of his performance. Brian Sapient used eight seconds of a video made by Geller, claiming Fair Use, and Geller used the DMCA to challenge his use of the footage.
This resulted in Sapient’s YouTube account being suspended, even though it was an invalid use of the DMCA; Fair Use is allowed in law. Sapient sued Geller for damages.
Judgment was reached in 2008; the original video was re-licensed as non-commercial Creative Commons, along with a financial settlement.
IP Cases Are Getting Easier
Many countries have had to rewrite their laws to cope with the rapid pace of change. Over the last 20 years, technology has sometimes evolved more quickly than legislation. It’s surprisingly easy for any digital citizen to violate intellectual property law without really trying.
However, modern legislation like the DMCA offers good protection against intellectual property theft, and its effectiveness has been proven many times in court. That’s good news for content creators.
And as we all become more in tune with digital content distribution and sharing, publishers are getting better at allowing their content to be shared in legal, compliant ways.
This section provides concise answers to common copyright questions. Some of these issues are covered in more detail above.
Here are answers to commonly asked questions about the fundamentals of how copyright works.
Q: What is a copyright?
A: It is the legal right granted to an author, which protects their intellectual property from being copied by another person without explicit permission to do so.
Note: in this case, “author” is the generic term used for the original creator of the work and does not solely refer to authors in the literal sense of the word.
Q: Is there any difference between copyrights, patents, and trademarks?
A: Yes. Copyrights protect intellectual property like music, movies, novels, websites, etc. Patents protect inventions. Trademarks protect brand-related slogans, logos, and imagery.
Q: Do I have to be 18 years old in order to claim a copyright on my work?
A: No. If a minor has created an original work, the copyright belongs to them. It would be advisable, however, to verify your local state’s laws as they pertain to any age-related restrictions regarding business.
Q: How long does copyright last?
A: For newly registered works, copyright length is the life of the author plus 90 years. See Length of Copyright for information about anonymous works and works created before 1978.
Q: Can I transfer my copyrighted work to someone else?
A: Yes. Intellectual property is much like the physical property you own in that it can be sold, transferred, or willed to another individual. If you change your mind after transferring your copyrighted material, you can also terminate the transfer and take back ownership of all rights.
Here, we answer questions related to how copyright applies to websites.
Q: Is my website protected by copyright?
A: Yes. The content (text, images, audio, and video) and the design are both covered by copyright. Of course, if you used an existing theme or template, that copyright doesn’t belong to you.
Q: Can I copyright my domain name?
A: No. Your domain name is protected by ICANN. Your business name and logo are not eligible for copyright either. They are instead protected by trademark law.
Q: If I have built my website, but it hasn’t yet been published, is it still copyright protected?
A: Yes. Copyright covers both published and unpublished works.
Q: If I live outside the United States, is my website copyright protected in the US.?
A: If your country of origin has a copyright agreement with the United States or is a Berne Convention member country, then protection for your website does exist within the US.
Q: If I live in the United States, is my website copyright protected in other countries?
A: If you’re seeking copyright protection in a country that has a bilateral agreement with the United States or is a member of the Berne Convention, then yes, your website will be protected in that country.
Q: I have a great idea for a website. Can I copyright it before I write it?
A: No. Copyright protects works, not ideas.
Here we discuss how to register a copyright and more.
Q: Do I have to register for a copyright?
A: No. It is automatic when you create a work. See Copyright Registration for more details.
Q: If copyright registration isn’t necessary, then why should I bother with it?
A: Some people simply want a legal certificate on public record. The most common reason many people register their websites is, because without it, they cannot take any legal action against someone who has infringed upon their copyright.
Q: Where can I register my copyright?
A: For an official registration of your copyright, visit the United States Copyright Office‘s website and fill out your application form there. You may also use one of these alternative copyright registration routes.
Q: Do I have to submit my application online?
A: No. You can either complete the online registration — which gives you a better means for tracking your application and is also cheaper — or you can mail in a paper application.
Q: Is there a registration fee?
A: Yes, there are three fees: one for the completed application, one (nonrefundable) for filing, and one (nonrefundable) for a deposit.
There are also fees associated with looking up copyright registrant information, transferring copyrights, reconsideration claims, and more. Always check with the federal website before submitting any applications or requests.
Q: Will I ever have to renew my registration?
A: A copyright exists over the course of the author’s life, plus an additional 90 years, so you should not have to renew your registration.
However, if you have made any extensive changes to your website whereby it becomes unrecognizable from the previously registered iteration, you will have to submit a new registration claim.
Q: When will I receive my registration?
A: For an exact estimate of when you’ll receive your certificate, check with the Copyright Office for processing times.
It’s important to note that the actual registration date of your website is the date that you submitted your completed application, not the date on which they finish processing it.
Q: Do I need to submit a mandatory deposit?
A: Yes. Within three months of publishing your work and registering with the United States Copyright Office, two copies of the copyrighted material must be submitted to the Office for use in the Library of Congress.
Understanding the fundamentals of copyright notices and how they work is discussed here.
Q: What is a copyright notice?
A: A copyright notice is a statement placed on all copies of your work and must include the year of publication, the owner’s name, and the copyright symbol.
Copyright notices are not necessary, but are still frequently used on intellectual property, regardless of whether the work has been registered or not.
Q: How do I make the © copyright symbol?
A: In HTML: © In desktop applications: Use the “insert character” or “character map” tool. Everywhere else: Try copy-and-paste.
Q: Where should I place the copyright notice?
A: For websites, the most common place to put the copyright notice is in the footer. In general, so long as the notice is legible and easy to locate, you can place it wherever you want.
Q: How can I make sure the copyright date on my website is always current?
<span id="copyright-notice">© 2010 <script> yr = new Date().getFullYear(); if (yr!=2010) document.write("– "+yr); </script> Company Name</span>
Be sure to replace the two 2010s with the earliest date of publication of content on your website. This code will display either a single year or a range of years, and will always be current. Of course, you can do this server-side with PHP or any other language as well.
Q: What if I found an error in my copyright notice? Is it too late to change it?
A: No. You can update your copyright notice at any time. If you don’t want to give infringers the ability to claim “innocent infringement” due to erroneous or missing information, make sure this information is always correct and up-to-date.
Know your rights.
Q: How do I know if someone has infringed upon my copyright?
A: If your website — or any of the copyrighted content (images, text, coding, etc) within it — has been reproduced in any way without your permission, then you have a case for copyright infringement.
Q: What steps do I take if my copyright has been infringed?
A: If you believe that someone has stolen or unlawfully used or represented your work, then you need to make sure you’ve first registered your copyright with the United State Copyright Office.
Once there is a public record of your copyright registration, you will then be able to take legal action against the infringer.
Q: I got a DMCA takedown notice. What do I do?
A: If you think you really weren’t infringing, file a counter-notice with your service provider. See Digital Millennium Copyright Act for more information.
Q: I only used eight seconds of a song on my video. That’s Fair Use, right?
A: No. Fair Use is determined by context and intent, not by the length of an excerpt. See Fair Use for more information.
Q: I would like to use someone else’s work on my website. How do I do that?
A: You’ll need to contact the owner of the work and request permission. If you don’t know who the copyright owner is, for a fee, the Copyright Office can look that information up for you.
Q: Is it possible to use small portions of someone else’s copyrighted material on my website?
A: There are certain circumstances by which you may use portions of other people’s copyrighted material for your own purposes. Make sure you are familiar with Fair Use before doing so. If ever in doubt, reach out to the copyright owner to request permission to use their work.
Copyright is a huge and complex subject. Even copyright lawyers don’t know everything. And many issues will just have to be sorted out by courts. But this article should have given you a really good introduction to the subject.
If it made your brain hurt and want to run to a lawyer, good! Copyright is not easy. But most of the time you can protect yourself by simply being conservative. If you use other people’s work, make sure you use it correctly. If it’s in the public domain, great! If it has an open license, make sure you abide by all its terms. If it isn’t available for free, buy it. In some cases, you can get a copyright holder to grant you permission to use it for free.
The main thing is to be careful and do the right thing. And if you have any questions, ask a lawyer who specializes in copyright.
This article contains the best information we could find and provides a good overview of the material discussed. However, as with all legal matters, you should consult with an attorney who specializes in the area at hand.