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COPYRIGHTS AND THE INTERNET

This article is intended to provide a basic understanding of copyrights. Topics covered include information on what copyrights cover, how to register copyrights, infringement, fair use and how to protect your copyrighted property on the Internet.

DISCLAIMER: This outline is intended only as a very general overview of copyright law and should not be relied upon as personal legal advice. Every situation regarding copyrights is different and one should obtain qualified legal assistance for any individual legal matters.

WHAT IS A COPYRIGHT?

The key concept to know about copyrights is that they do not cover ideas, only the expression of ideas. This allows different people to use their own artistic skills to individually interpret similar ideas. For example, two artists may create images of a cow. Each artist is entitled to produce original art based on the general idea of a cow, but neither can exclusively claim ownership to all other interpretations of cows. The idea of the cow itself is not protected, but each person's own expression of the idea is entitled to protection.

• What is covered by copyright? Copyrightable works include creations that are literary, musical (including compositions and sound recordings), dramatic, pictorial, graphic, sculptural, audiovisual, architectural, choreographic or pantomimes.

• What is not covered by copyright? Ideas, facts, concepts, principles, discoveries, titles, names, slogans, short phrases, blank forms, typefaces, general topics, common plots or themes, stock characters, and processes or procedures. Some of these things might be protected by patent or trademark law and these terms are often used incorrectly to refer to things actually covered by copyright law.

Keeping these concepts in mind, the term, “copyright,” actually refers to a bundle of exclusive rights, including:

1. The right to reproduce in copies or modify the work.

2. The right to distribute and sell the work, or allow others to do so.

3. The right to prepare or authorize derivative works. Derivative works are adaptations or transformations of the earlier work, such as films based on books, or video games based on films.

4. The right to perform or display the work publicly, depending on the type of work.

5. The right to control the integrity of the work and the attribution of authorship. Creators of copyrightable works have the ability to decide how their names are used, or not used, in conjunction with their work or derivative works based on their work.

It is also important to separate the concept of copyright from the physical work itself. Transferring or selling the physical work is not the same as selling the copyright to the work. The mere sale of the Work does not necessarily mean that the creator’s copyright in the work has been transferred. For example, if an artist sells an original painting, the artist will retain their copyright interests even after the painting is sold, unless their rights are transferred in writing to the purchaser. Such transfers are not automatic, despite what most purchasers might think. However, copyright interests in creative works do transfer if an employee in the normal course of their employment performs the work or if the work is performed under a work for hire agreement.

There are two requirements for the creation of a valid copyright: originality and fixation.

1. The work must be ORIGINAL: A very low threshold of creativity is required to meet this test. The work does not have to be brilliant or unique. It must just show a minimal level of creativity to be protectable. For example, simple geometric designs, by themselves, are not copyrightable.

2. The work must be FIXED in a tangible medium of expression: According to copyright law, all works are protected by copyright law as soon as they are “first fixed in a tangible medium of expression …from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Basically, you have to record or document creative work in some form. Improvised works that are not recorded in some form are not subject to copyright protection.

THERE ARE TWO TYPES OF COPYRIGHTS:

1. UNREGISTERED COPYRIGHTS: This is copyright protection at its most basic level. Upon creation and fixation, a valid copyright exists - your rights are created the moment your pen leaves the paper, the camera is clicked, etc. However, only minimal protections exist for unregistered copyrights. You can only sue infringers for your actual damages, such as the amount of the infringer's profits or the value of your loss by not being able to sell or license the protected work yourself. Also, for unregistered works you don't receive any of the other benefits attained through federal registration (see below).

2. REGISTERED COPYRIGHTS: Registration provides the most comprehensive level of copyright protection. Federal registration is regulated by the Copyright Office of the Library of Congress and is an inexpensive and effective way to obtain maximum legal protection for your creative work. Every creative person should be aware of this process.

• THE BENEFITS OF REGISTRATION:

1. Access to federal court system: All copyright infringement cases must be brought in federal court. Registration is required for access to the federal court system and registration is considered important proof of the fact of the registrant's ownership of the work and the validity of their copyright interests.

2. Registration allowed the owner of infringed works to recover Legal fees and court costs from infringers. This can be a crucial factor in finding an attorney to take your case.
3. As with unregistered copyrights, copyright owners can recover actual damages (the copyright owner's losses or the infringer’s profits) or, for registered works only, you can ask the court for statutory damages of up to $150,000 for each willful, "bad faith" infringement. Bad faith infringement is usually found where the original work had a copyright notice on it that was disregarded by the infringer.

• HOW TO REGISTER A COPYRIGHT:

1. Obtain and fill out the proper copyright registration form using the instructions for completion. All forms and instructions (get both) are available on the Copyright Office website in .pdf format, or from the Copyright Office by mail. Common application forms include: VA (Visual Arts), TX (Text-based work), and SR (Sound Recordings).

2. Include Deposits: Registrants must send a copy of the “best edition” available of the work. This means that you must send in the most complete and final version of anything you seek to register. Of course, if you only create a single, unique item, such as a sculpture, you do not have to send in your one copy, but may instead enclose photographs or other representations of the work. The number of deposits required depends on whether or not the work has been published. If the work has been published, you need to send in two copies of the best editions. For unpublished works only one copy is required.

3. Send the completed application form to the Copyright Office with a $30.00 registration fee. The registration process typically takes about six months, but the effective date of your registration is the date that the Copyright Office receives your application and enclosures.

4. Some general tips: Be sure to retain a complete copy of everything you submit.
It also a good idea to send your application packet by Fed Ex, UPS, Priority or Express mail. This way you can track your application and confirm that the Copyright Office has received it. Registration should be done within three months of publication. Publication is generally defined as offering the work for sale or lease, or otherwise transferring ownership of the work. Registering within this timeframe is very important to securing full protection for your work.

5. REGISTRATION MYTH: Self-mailing or “Poor man’s copyright." Poor man's copyright is the act of mailing a sealed copy of the work to yourself or a friend, and receiving a dated envelope in the mail. In reality, this practice is practically useless and is NOT the same as copyright registration. Do not rely on self-mailing to prove creation or copyright rights. Registration provides excellent benefits at a reasonable price.

You do not need to register everything you create, however, it is always a good idea to do so if you can. Registration is most important for specific works that have commercial value, or that will be sent to others for approval. To save time and money, the Copyright Office also allows for the registrations of collections of many works at one time for a single $30.00 fee. Collective Registrations require the completion of separate registration forms and there are specific rules for submitting multiple items at one time. See the Copyright Office website for more information.

The effective date of a registration is the date your complete package, including completed form, deposits and fee, is received by the Copyright Office. Generally, copyrights last for the life of the creator plus 70 years. For other types of works, such as works created for hire, the duration of the copyright is for a set period of years from the date of creation or publication.

• COPYRIGHT NOTICE:

Since April of 1989, creators are no longer required to actually place copyright notices on their work in order to qualify for copyright protection. However, placing a proper notice on your work should always be done if possible. Placing the proper copyright information on your work provides an important notice to other people who might consider willfully using your creative output without your permission.

The proper form of copyright notice is generally:

© Symbol / “Copyright”/ “Copr.”; Year; Name of Creator(s).

Example: © 2004 Peter Vaughan Shaver. All rights reserved.

For uses of works online, adding the phrase, “All rights reserved” is also a good idea for international displays or performances of the work. This also tells viewers that you are claiming all rights to use the work for any purpose. For sound recordings, a circle (P), for "Phonogram") is used to indicate a copyright.

NOTICE MYTH: One popular myth about is that if a work does not have a copyright notice, it's not protected. This is not correct. Even if a work does not have a visible copyright notice on it, you should always assume that someone's copyright rights cover it. If you are considering using a found image, text, music or other creative product, do not assume that it is in the public domain. This is especially true for images, music or text found on the Internet. Sometime people will post images or other content that they have stolen or "borrowed" without permission, and may offer this material to others for free. Just because another party has committed a copyright infringement does not provide you with an excuse to use another's creative work. Always try to determine who owns the work and seek permission before using others' work.

If you are posting any type of creative material on an Internet website, be it your own site or someone else's, you should very clearly place a copyright notice on or near the work itself. There should also be a general copyright page on the website indicating that all the copyrightable material on the site is protected. If someone wants to use the material, give them the ability to contact you about using it - either by obtaining your permission or negotiating a license for their use.

• COPYRIGHT INFRINGEMENT:

If a copyright holder discovers that their work is being infringed, there are a number of options to stop the infringement or recovery payment for unauthorized use, depending on the type of infringement. First of all, in order to establish an infringement there are three things that a copyright holder must demonstrate.

1. The copyright holder must prove that they own the work. Properly registering your work makes this very easy. Federal registration is considered conclusive proof that you were the creator of the work and that you own all copyrights in the work. Otherwise, you will have to prove that you created and owned the work as of a certain date.

2. The copyright holder must prove that the alleged infringer had access to the copyrighted work and copied it. This is often very difficult to prove directly and few infringers will easily admit that they copied your work. However, circumstantial evidence is typically sufficient to prove access. If the work was available to the alleged infringer and they could have copied the work, the presumption is that they likely infringed it. The burden would then be on the alleged infringer to prove that they independently created their work without access to, or knowledge of, the original work.

3. The copyright holder must prove that the infringing work is substantial similar to the original, copyrighted work. Substantial similarity is determined using an “Ordinary Observer” standard: Would an "ordinary person" see various similarities between the copyrighted work and the allegedly infringing work?

It is important to note that copyright infringement is a strict liability offense. This means that, regardless of an infringer's intent, whether they deliberately used the original work, or not, if the court finds unauthorized use of a work, the infringing party will be held responsible for any damages to the copyright holder. However, some infringements may be considered “innocent” and the offending party may be subject to lesser penalties.

The only place a copyright infringement lawsuit may be brought is in federal court, not state court. For infringements that occur on the Internet, there is a separate procedure that is highly effective in getting infringers to remove infringing images from their websites. This is a technical procedure outlined in the federal Digital Millennium Copyright Act, or DMCA for short.

• FAIR USE:

Not all uses of another’s work are copyright infringements. In certain cases, reasonable, unpermitted uses of existing works are allowed. Fair use is a defense to a charge of copyright infringement, but it only applies in certain restricted conditions. Fair use includes using preexisting works for the purposes of parody, criticism, commentary, news reporting, teaching (including creating multiple copies for classroom use), scholarship, and research.

There are a variety of factors that are applied to any fair use analysis and each work must be individually evaluated. No single factor is most important and all are considered in determining whether or not a use is fair or not. These factors include:

1. The purpose and character of the use. Is the secondary work “for profit”? For profit, or commercial, works have less protection than uses not involving someone profiting from the sales of secondary works

2. The nature and character of the copyrighted work. Generally, the more creative and unique the original work is, the less fair use applies to anyone using the original work. The more generic a work is, the less copyright protection it will have.

3. The amount and substantiality of the portion of the copyrighted work used. How much of the original work was used and was the part used the most distinctive, valuable or central part of the original work? In general, do not use the most important, distinctive or unique features of a copyrighted work. Do not rely on any rules you may have heard that allow you to use a certain fixed percentage of an original work, or make a certain percentage amount of changes to the original work, before your use is legal. There is no set percentage that is the dividing line between fair and “unfair” use and any use of someone else's copyrighted work may be an infringement. There is a lot of gray area in determining fair and unfair uses of preexisting works.

4. The effect that the use will have on the market for, or value of, the copyrighted work. Do sales of the secondary work hurt sales of the original? Are the markets for the two products similar or overlapping? It does not matter that secondary uses of other's work may increase the market for the original work.

PUBLIC DOMAIN WORKS:

As mentioned, copyrights have limited terms. After protection ends, all works revert to what is called the public domain. Public domain works can be used freely used by anyone, for any purpose, without obtaining permission. In addition to works with expired copyrights, also included in the public domain are works not subject to copyright protection such as those never registered under earlier laws, improperly registered works and all federal government works, with the exception of stamps, currency and privately owned materials licensed to the government, but still owned by the original creators.

In order to determine whether or not something is in the public domain, check the date of creation of the work. The "safe date" is currently all works created before 1923. Anything dating before that date is generally considered to be in the public domain. For works created after that date, you must examine the copyright laws that were in effect as of the date of creation or publication. With some exceptions, the laws that were then in effect will determine exactly the status of the work.

• COPYRIGHT RESOURCE LINKS:

www.copyright.gov/ The Copyright Office website: All copyright forms and instructions are available in .pdf format. This site also includes a searchable database.

findlaw.com Excellent general resource for laws of all kinds.

law.cornell.edu Good general site for copyright information and more.

fairuse.stanford.edu Excellent general information site for fair use information.

eff.org The Electronic Freedom Foundation. More interesting fair use information.

Peter Vaughan Shaver, Esq.
Haver & Associates
621 SW Morrison St., Suite 1417
Portland, OR 97205 (503) 295-2787

Peter Vaughan Shaver is currently Of Counsel at Haver & Associates in Portland. He graduated from the University of Oregon School of Law (J.D., 1998 with a Certificate in Intellectual Property). His primary areas of legal expertise are intellectual property and general business law, with an emphasis on copyrights, trademarks, entertainment, music and art law, Internet law and licensing. Peter is a regular lecturer at the Oregon School of Arts and Crafts, Marylhurst University, PCC-Sylvania, PCC-Cascade, The Art Institute of Portland, the Graphic Artists' Guild, the Women's Art Caucus and other educational and community arts groups. Mr. Shaver also writes an advice column on music law for the Portland-based Music Liberation Project magazine and is a Boardmember for the Portland-based, non-profit organizations The Creative Music Guild (CMG), and the environmental arts group, ORLO. Peter can be reached at (503) 295-2787 or via e-mail at PVSHAVER@HOTMAIL.COM.