Basic Copyright Concepts For Writersby Claire E. White
The Internet Writing Journal, September 1997
One of the most important legal concepts that a freelance writer must become familiar with is that of U.S. copyright law. Many misconceptions exist regarding this topic, especially on the Internet. The Internet itself poses some tricky problems regarding copyright, not all of which are settled under U.S. law. This article will address some of these basic concepts and will give some practical advice for freelance writers on protecting their work.
What Copyright Law Covers
Copyright law protects "works of authorship" which include literary works such as short fiction, short stories, novels, nonfiction articles, poetry, newspaper articles, newspapers, magazine articles, magazines, computer software, software manuals, text advertisements, manuals, catalogs, brochures, and compilations of information, such as databases. Other categories of protected works include dramatic works, motion pictures, other audiovisual works, and sound recordings. Copyright law does not protect ideas, facts, inventions, processes, systems of operations, words, names, symbols or proprietary information, although it may protect the way these things are expressed. Inventions and processes are protected under patent law. Words, names and symbols used to identify good and services are protected by trademark law. Proprietary information (information secret to a business such as customer lists) is protected by trade secret law.
How Do You Get Copyright Protection for Your Work?
The original author of a work owns the copyright to that work, unless he or she has assigned those rights to a third party. Copyright protection arises automatically, without any action taken by the author, the moment the work is fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device. For a short-story writer, the work becomes fixed as soon as the author dictates the story, writes it down or types it into the computer. The work must be "original", e.g., not based upon someone else's work. The fact that the short story may be similar to many other stories does not mean it is not "original" for copyright purposes, so long as the author did not copy the story from another source.
For works published before March 1, 1989, a formal copyright notice was required to be placed on the work in order to receive copyright law protections. That is no longer the case. For works published after March 1, 1989, no copyright notice need be placed on the work in order for full copyright protection to apply. From a practical standpoint, however, an author should always place the following notice on his or her work: Copyright © 1997 by Author's Name. All Rights Reserved. The reason for this advice is purely practical; such a notice warns people who view the work that the author takes copyright issues seriously and may have a deterrent effect upon possible infringers, especially those who are unfamiliar with the intricacies of copyright law. Furthermore, if the work carries a proper notice, in the event of a subsequent infringement lawsuit the defendant will be unable to claim "innocent infringement"--that is, that he or she did not realize that the work was protected. (A successful innocent infringement defense may allow the defendant to pay less in damages than the copyright owner would otherwise receive if the infringement was found to be unintentional.)
"Publication" has a technical meaning in copyright law. According to the U.S. Copyright statute:
"Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication."In general, publication occurs on the date upon which copies of the work are first made available to the public.
Registering a Copyright
Given the fact that an author owns the copyright in his or her work the moment the work is fixed in a tangible form without a formal copyright notice, why bother to formally register the copyright in a work with the U.S. Copyright Office? There are several reasons to register:
To sue someone for copyright infringement the owner of the work
must first register the work with the U.S. Copyright Office. You may
register the work after someone has infringed upon the work, but the
registration will only apply to infringements that occur after the
registration. However, if you register your work within 90 days of
publication, the statutory damages provisions apply to infringements
before and after the actual registration.
- Registered works may be eligible for statutory damages up to
$100,000 and attorney's fees in successful litigation.
- If the registration is made within five years from the creation
of the work, it is considered prima facie evidence in a court of law.
- Registration is inexpensive ($20 per work registered) and relatively simple. To register the author simply fills out the copyright application and mails it to the U.S. Copyright office with a check and a nonreturnable copy of the work (one copy if the work is unpublished and two copies if it has been published). Works that have been published must be registered within three months of the publication. This is called "mandatory deposit".
Copyright registration is considered effective the day the Copyright Office receives all the materials required for registration. Authors may copyright the name in a pen name or pseudonym by simply checking the "Pseudonymous" box on the application.
Can Foreigners Copyright Their Work in the U.S.?
Many works of foreign origin are protected by U.S. copyright law. All unpublished works, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country which has entered into a copyright treaty with the U.S., or are created by a citizen or domiciliary of a country which has entered into a copyright treaty with the U.S. are also protected and may therefore be registered with the U.S. Copyright Office. The U.S. has copyright treaties with many countries, including Australia, Canada, China, France, Germany, Japan, New Zealand, Sweden, Switzerland and the United Kingdom.
Copyright laws of individual countries vary quite a bit. Some resources to investigate include the Canadian Intellectual Property Office copyright site and an Australian copyright site maintained by the Law Foundation of NSW.
How Long Does the Copyright Last?
Works published or created after January 1, 1978 are not subject to renewal registration. For works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.
The length of copyright protection depends on several factors: when the work was created, who created the work, and when the work was first distributed commercially. For works created on and after January 1, 1978, the copyright term for works created by an individual is the life of the author plus 50 years. The term of the copyright for "works for hire" is 75 years from the date of first "publication" (distribution of copies to the general public) or 100 years from the date of creation, whichever expires first.
The right to enforce the copyright is owned by the owner of the copyright. Usually, that will be the author of the work. However, if an employee creates a work within the scope of the employee's employment, any work created belongs to the employer. This is called "work for hire". For example, a comedy writer for The David Letterman Show writes several jokes for the monologue. The jokes are the property of the employer, not of the comedy writer because they were written within the scope of the writer's employment. The writer does not own the copyright to those jokes, the employer does.
"Work for hire" can also occur in a freelance situation if the author signs a specially commissioned "work for hire" agreement before the development of the project. Unless an independent contractor (the writer, musician etc.) signs a specially commissioned "work for hire" agreement, the copyright to the work created will remain with the author of the work. If a "work for hire" agreement is signed, the copyright to the work created will belong to the developer of the project. For example, Production Company wishes to develop and produce a documentary film. Production Company will enter into agreements with independent filmakers, writers, and musicians to create original work to which Production Company will own all the rights. In order to own the copyright to the finished product, Production Company will enter into specially commissioned "work for hire" agreements with each person who contributes original works to the final film. "Work for hire" agreements are common in the entertainment industry as well as in ghostwriting arrangements. The author must realize that if such an agreement is signed, he or she is giving up all his or her rights in the finished product forever.
An author must be concerned with two aspects of copyright infringement: avoiding having his or her work infringed upon and avoiding infringing others' works. Copyright law protects against the copying of the "expression" of a work, not of the author's ideas. The difference between the expression and the idea of a work is a difficult concept from a legal perspective. Even if someone does not copy a work exactly, the "expression" of the work may have been copied. This concept is particularly apparent in music and art. If the allegedly infringing work is "substantially similar" to the copyrighted work, copyright infringement exists.
The owner of a copyright really owns a "bundle" of rights, like a bundle of sticks. Each stick or right can be sold or assigned separately to a third party. The rights owned by the author are as follows:
The Right to Reproduce the Work: the right to copy, imitate,
reproduce, duplicate or transcribe the work in fixed form.
- The Right to Derivative Works: the right to modify the work
to create a new work. A new work that is based upon an existing work
is a "derivative work".
- The Right to Distribution: the right to distribute the work
to the public by sale, rental, lease or lending.
- Public Display Right: the right to show a copy of the work
directly to the public (e.g., hanging up a copy of a painting in
a public place) or by means of a website, film, slide, or television
image at a public place or to transmit it to the public.
- Public Performance Right: This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public.
Infringement can occur when any of these rights is violated. For example, Joe, a science fiction enthusiast, decides to create a webpage featuring Star Wars®. He places pictures on his site of Princess Leia, Han Solo and Luke Skywalker underneath a big Star Wars® logo which he copied off the official Star Wars® website. He also places a midi on his site which plays the Star Wars® theme music and shows an animation with 3 stills copied from the video version of the original movie. He then adds an interactive message board where viewers can add a paragraph to a new adventure on which these characters embark and a quote "There is no try...only do" under a picture of Yoda. Sound familiar? There are sites like this all over the Web.
So, what copyright violations has Joe committed? Well, he has infringed upon Lucasfilm's bundle of copyright rights in a number of ways. By copying the pictures of the characters from the film he has infringed upon Lucasfilm's right of reproduction and possibly upon the individual actors' rights to publicity. By creating a new storyline with the same characters from the film he has violated the right to create derivative works. By showing stills from the movie in sequence he has violated the right of public performace. By playing the midi he has violated the rights of the holder of the copyright to that music and of the holder of the rights to that particular recording of the music. He would also be liable for reuse fees which are paid to the owners everytime that music is played or performed in public. The quote could possibly be considered a copyright infringement upon the script of the movie if it is considered a key phrase, even though the quote is small. He has also infringed upon the trademarks of Lucasfilm by showing the Star Wars® logo, which is a registered trademark of Lucasfilm.
A number of myths persist on the Internet in this regard. The first myth heard is, "it's just free advertising so it's not infringement". Not true. The holder of the copyright has the exclusive and sole right to decide when and how to advertise its products. This issue is a hot one - thousands of fanzines online and offline are gathering places for fans to discuss their favorite movies and television shows. The fans get very angry when the big studios and companies send threatening letters to the owners of infringing websites and obtain injunctions ordering sites to be shut down. Some studios even encourage the fans' unauthorized activities behavior on the quiet, while adopting an official policy against any infringement. The reason for this behavior has to do with trademark law, not copyright law. A holder of a valid copyright cannot lose that copyright in a work by failing to defend it. However, a holder of a trademark can lose the trademark if the holder fails aggressively to prosecute trademark violations and defend the mark. Therefore, Joe should be especially worried about that trademarked StarWars® logo sitting illegally on his site. The bottom line is, if you copy something without authorization you are taking the risk of being sued and/or having your site shut down. You must obtain a license or assignment from the owner of the copyright before you may reproduce the copyrighted material in any format whatsoever, including on the Internet.
Another misconception heard on the Internet is that if the site is free and the owner is not making money from the site, than any material on the site does not constitute copyright infringement. Irrelevant. Although whether the infringement is commercial or not may have a bearing on the damages awarded in the subsequent copyright infringement suit, it is not a defense to infringement that you made no profit from the infringement.
One of the biggest misconceptions on the Internet appears to be an idea that one can gain title to a copyrighted work by altering the image. This is absolutely false. If Joe, our hypothetical infringer, copies a copyrightable photograph of a horse in a field from Sue's webpage then adds animation to it so that the horse now appears to be running through the field, Joe does not own copyright to the picture. He only owns the copyright to the animation element, not of the horse running because it is a derivative work of the original photograph.
Exceptions to the Infringement Rules
There are three exceptions to the copyright infringement rules which allow one to reproduce a another's work without obtaining a license or assignment of rights: when the use is considered "fair use", when the work is in the public domain, and when the material is not copyrightable. "Fair use" is a doctrine which states that one may reproduce the copyrighted work for a limited purpose of teaching, reviewing, literary criticism and the like. Without the "fair use" doctrine no one would ever have his or her book reviewed or have been able to study the works of Kurt Vonnegut in college or high school. "Fair use", however, is a slippery doctrine, and is determined on a case by case basis. Quoting small amounts from a work have been held to be copyright infringement where the quoted matter was crucial to the work and the copying contributed to the decline in commercial value of the work. On the other hand, entire passages quoted from books have been held to be "fair use". To be safe, ask permission from the author.
Public domain refers to works which are no longer covered by copyright law. For example, the recent rash of movies adapting Jane Austen's novels may have something to do with the fact that no one holds the copyright to these works; they are in the public domain and no license fees have to be paid to the author or her heirs. Facts which are common knowledge such as the form of calendars are also considered to be public domain and may be copied and reproduced at will.
The third exception relates to noncopyrightable works. Facts are not copyrightable, nor are ideas. However, a compilation of facts presented in certain order with original input and formatting, such as Writers Write's® guidelines listings database for example, is entitled to full copyright protection.
The Internet has compounded the copyright problem. When an author posts his or her work on a homepage it can be seen by people all around the world in countries which have no copyright treaty with the United States. Even if the author's work is infringed upon, he or she may never even hear about it if the work is reproduced in a foreign country. Furthermore, it is expensive to pursue a copyright violation lawsuit in a foreign country. However, it can be done.
If you find a copyright violation, the first step is to write a letter to the offending party requesting that the infringing material be withdrawn or removed from a website. If the infringing material is located on a website and the owner refuses to remove the offending material you might consider informing the owner's Internet Service Provider ("ISP") about the situation. The law in several countries is changing to hold ISP's liable for violations of various laws by users of the ISP and many ISP's will respond to complaints about illegal activities on members' websites. The underlying remedies for copyright violations have not changed because of the electronic revolution; one can still sue for damages and for an injunction to prohibit the display or transmission of the copied work. However, it is a good idea for today's authors to pay attention to what is happening on the Internet in order to protect their creative works.
This article is intended to be a general summary of basic copyright concepts and may not be relied upon as a substitute for legal advice. If you have a legal matter involving copyright issues you should consult an attorney regarding the specific facts of your case.
**Claire E. White is an attorney with over ten years' experience in major law firms. She is a former instructor at the University of California at Irvine Extension and is a frequent lecturer and writer on legal and business topics including computer law, corporate law, the Internet and effective business communications.