A quick legal primer for those venturing into the world of online authoring. A public service announcement from yours truly, hereby fullfilling most of my court-ordered community service hours. Can you afford to pass it up? A potential $100,000 fine says, “no.”

Confusion Aplenty
There seems to be widespread confusion on the Internet these days. No, I’m not talking about Clinton’s Kosovo policy (though I certainly could have been, couldn’t I?). I’m referring those wonderful notions of copyright and Fair Use.

Now before we all go jumping into the dank cesspool that is my limited comprehension of copyright law, I need to state unequivocally that I am not a lawyer so (1) tell all the jokes you want and (2) nothing that follows should be considered legal advice. If you do take this work as legal advice, I am not responsible, though I hereby volunteer to be first in line at your garage sale when you’re forced to sell all your possessions after you are found guilty of copyright infringement because you acquired your leaky understanding of intellectual property rights from some bozo non-attorney’s web site. Fair enough? I thought so. (And how much you want for those bookshelves, by the way?)

Plainly stated, if you create an original artistic work, you own the copyright. Automatically. Without any registration, advertising in periodicals, or payments to the Mafia. You created it, you own it, and you have the right control the distribution of the work. There are exceptions, like if the work is derivative (that is, not entirely your original work) or if their was a work-for-hire arrangement in place, but generally speaking, copyright is yours beginning at the moment of creation in a tangible form.

Happily, many things are not copyrightable. According The Nuts and Bolts of Copyright (page 4), there are a whole host of items which cannot be copyrighted including:

    Works that have not been fixed in a tangible form of expression. For example: choreographic works which have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded.

    Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listings of ingredients or contents.

    Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.

    Works consisting entirely of information that is common property and containing no original authorship. For example: standard calendars, height and weight charts, tape measures and rules, schedules of sporting events, and lists or tables taken from public documents or other common sources.

Additionally, works already in the public domain are not copyrightable. News is not copyrightable (though specific coverage of an event can be). Facts are also outside the realm of copyright protection. Indeed, URL links are considered facts, which is why HTML authors can pretty well link willy-nilly to any web site they desire without worrying about copyright problems. (Do be careful if you’re using frames to show a site within a site, however.)

One thing that confuses a lot of people (and again, I’m not talking about US foreign policy) is that copyright registration is different than copyright ownership. Registration with the US Copyright Office provides additional legal protection (that is, proof that a person does indeed own the rights) and is probably necessary if a copyright holder wants to file an infringement suit, but it in no way alters the basic fact of copyright ownership upon creation. Likewise, a copyright notice (“©1999 by Ty Davison”) is no longer needed on or near a work to guarantee the existence of ownership. It does provide a clear sign of what is copyrighted (as opposed to what is in the public domain), so it remains a good idea for content creators to post such notices.

What we’re dealing with here is, then, a user-centered approach to insuring that copyright violations don’t occur, and believe me when I say that it’s really easy to be unwittingly guilty of copyright infringement. For example, a friend of yours emails you a touching poem by a contemporary author. You think, “Gee what a great poem. I’ll just forward this to a few of my friends.” Congratulations, you’re now guilty of copyright violation, with penalties ranging from $200 to $100,000 plus attorney’s fees.

See what I mean?

The Fair Use Doctrine
Thank God Almighty for Fair Use. Fair Use is a wonderful doctrine which allows non-copyright holders limited use of copyrighted materials. This Fair Use idea is actually how we’re able to quote materials without being sued for every last penny. What Fair Use says (or more specifically what Section 107 of the US Code says) is that “the fair use of a copyrighted work…for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

As interpreted by the courts, Fair Use has evolved into a holistic four-part legal test. What I mean by that is that there is a four-part test to determine whether or not your use of materials meets the burden of Fair Use, and if you fail even one of the parts, you’re pretty much hosed. Ready? Okay, here we go:

  1. Is the purpose of your work commercial, or is it nonprofit/educational in nature? If you’ve taken someone else’s work and you’re trying to make a buck off it, do not pass go, do not collect $200. You should be paying royalties to the copyright holder, and not to jump the gun, but heck with the rest of the Fair Use test, you’re probably guilty as sin.
  2. What type of work did you copy? Some materials like dictionaries, encyclopedias, and other reference sources almost beg for people to copy them since they report on news or facts. (Remember that neither news nor facts are copyrightable.) On the other hand, if you’ve swiped somebody’s creative work (i.e. poetry, music lyrics, letters, etc.), you’re in trouble.
  3. How much did you copy? If it’s only a few paragraphs from a book and provide proper attribution, well, that almost defines how Fair Use is supposed to work. If, on the other hand, you copied a few paragraphs from a poem that was only a few paragraphs long to begin with, it might be a good time to consider hiring that oxymoron known as a “competent attorney.”
  4. What is the effect of your use upon the potential market value of the copyrighted work? This is a big deal, because if you’ve distributed something that harms the ability of the copyright holder to make money from his creation, the judge on the bench will scowl in your general direction every time he thinks of what you’ve done.

If you’re considering using materials which you did not create, the bottom line is that if you can’t pass the Fair Use test then you better not use it unless you know it is public domain.

Lame Legal Defenses
Some legal defenses are best not used in a court of law, and as one might expect this is true in copyright cases as well. Here’s a quick rundown on things not to say to the judge:

  1. “But I cited my sources!” All this tells Hiz Honor is exactly who you ripped off. Citing sources shows wonderful academic integrity, but attribution is not especially helpful in a court of law. Try to use “But I cited my sources!” as a defense, and the robed figure on the bench will likely laugh himself silly before fining you hundreds if not thousands of dollars.
  2. “It was forwarded to me via email.” Good, you’ve got an accomplice who is also guilty.
  3. “It has an anonymous author.” Just because you don’t know who the other is doesn’t mean you have a right to publish or that no copyright exists. All it means, obviously, is you don’t know who the author is.
  4. “I’m not hurting anyone.” It might seem that way, but if you’ve failed the Fair Use test, you’re probably wrong. Odds are if this is the only defense you can think of, you’re in deep doo-doo.
  5. “I didn’t know.” Well, cry me a river. Surprise, surprise but ignorance of the law is no excuse. It might get you a lower monetary penalty, but it will have no impact on your guilt or innocence.

In Conclusion
The bottom line for content creators—online and otherwise—is do not use materials which you did not create unless you know these materials to be in the public domain. Since its creation, the Internet has been a Wild West frontier with too many copyright violations to count. Trust me when I echo Dylan and say, “The times, they are a-changin’.”

[FYI: The law is no judge of quality so yes, even lame opinion pieces like this one get full legal protection. This work—like the rest of my web site—is ©1999 by Ty Davison with all rights reserved.]

Fun Extra Credit Reading
Title 17 of the US Code:
Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Sec. 504. Remedies for infringement: Damages and profits

    (a) In General. – Except as otherwise provided by this title, an infringer of copyright is liable for either –

      (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or
      (2) statutory damages, as provided by subsection (c).

    (b) Actual Damages and Profits. – The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

    (c) Statutory Damages. –

      (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

      (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.