Q&A: Copyright Law

By Steven P. Aggergaard
Attorney at Law
saggergaard@yahoo.com

Copyright law applies pretty much anytime you post anything online. The law generally prevents you from using other people’s original materials for your financial benefit.  It also prevents others from using your material.  Copyright law is federal law, as authorized by the United States Constitution.  That means that unlike the law for defamation and invasion of privacy, copyright law is the same nationwide.

Lawyers often send letters warning of copyright infringement, but in reality few lawsuits are commenced.  However, recent high-profile enforcement actions suggest that copyright law will continue to affect online communication in significant ways for the rest of our lives.  So although you may never sue or be sued for copyright infringement, it is nevertheless wise to obey the Golden Rule of the Internet: Use others’ original material as you would want them to use yours.

Here are some general answers to questions that arise for persons who engage in Internet communication. What follows is not legal advice.  As with any legal issue, each set of facts must be analyzed under the law that applies. If you have a specific question or concern, I would be happy to talk to you.  E-mail me at saggergaard@yahoo.com, or call me at 651-402-8505.  I am happy to listen to your concerns free of charge.

What is a “copyright” law?
Simple. Copyright law involves copies and rights.  Copyright law ensures that creators of original works have a right to retain control over how their works are copied, as well as over how those copies are used, sold, altered, etc. A copyright is a property right, similar to your right to own land, to sell a car, or to give your neighbor permission to use your lawn mower.

What sorts of works are protected?
According to the copyright code, anything that is “fixed” in a “tangible medium.”

Computers and the Internet fix things in tangible media?
Yes. Copyright law applies to pretty much everything online–words and pictures on your web site and blog, the design of your web site and blog, all contents including podcasts, and even Internet code.

When can I claim these rights?
As soon as your work is created.

But don’t I have to “register” my copyright somewhere?
No. This is perhaps the most misunderstood aspect of copyright law. You own a copyright as soon as you create something. The main reason for registering a copyright is to make it easier to sue someone for copyright infringement and to actually seek and receive monetary damages.

How do I register a copyright?
You fill out an application form, send a “deposit” [a copy] of your work to the Copyright Office, and submit a filing fee [typically $45]. It all gets sent to Washington, D.C.

How do I send a “deposit” of a blog or a web page?
Good question. Congress has not passed laws tailored toward online copyrights, and the federal copyright office does not offer clear guidance. For now, try sending it on a CD-rom.

Is registration worth all the bother and expense?
For most of us, probably not.

So what else can I do to protect my copyrights when they have been infringed?
Educate your readers, viewers, and listeners of the little-known fact that copyrights are created as soon as a work is created. For example, at the bottom of this article I have pasted a © symbol along with the words “all rights reserved.” I hope it helps inform you that I have a right to what I have written. At the least, when people innocently infringe your copyright, tell them so and ask to receive credit for the work you have done.

But someone is selling my articles without my permission!
OK, that’s a problem, and now it might be time to contact a lawyer. It is against the law to make money off someone else’s original works. But be advised: If your employer or someone else paid you to create something, that entity or person might own the copyright.

I have a great idea for how more people can get politically involved. How do I copyright it?
You can’t. Ideas and facts are now copyrightable. Copyright applies to the way you present ideas and facts.

All right, I want a patent.
No such luck.  Patents apply to inventions that further the “science and useful arts.”  Politics is not useful enough for a patent.

Is copyright infringement the same as plagiarism?
No. Plagiarism is passing off someone’s work as your own. Most plagiarism on the Internet is a copyright infringement, but not all copyright infringement is plagiarism.

Can I go to jail for copyright infringement?
Theoretically, yes.  Although copyright violations typically are handled in civil court, federal law also makes copyright infringement a crime.  So if you steal large amounts of copyrighted material, you risk being treated as if you stole large amounts of money.

But people post other people’s material all the time and don’t get in trouble.
True. And technically many of these postings constitute copyright infringement, particularly all the cutting and pasting from mainstream media sites and the unauthorized use of photographs.  The key word is unauthorized. If the creator gives you permission to use something, you generally can use her creation. But be careful what you ask for: If you’re in a commercial endeavor, you might have to–and undoubtedly should–pay something for the right, particularly if you seek to make a buck.

I want to post our family photo from the church directory on our e-mail “Christmas card.” OK?
Not OK.  A commercial photographer took that photo, and she or he (or her or his employer) owns the copyright in it, even though you and your family are in it.

So you’re telling me the church photographer can use my family photo anyway he pleases?!
No, I am not saying that. The photographer should get your family’s permission before “appropriating” the likeness of your family. Misappropriation of a photo, while not a copyright infringement, might constitute invasion of privacy.

Speaking of church, who owns the copyright in the Bible? Moses?
All right, good point. Older works are in the “public domain,” and for these works the copyright is deemed expired unless it was renewed. Laws on the duration of copyright renewals are terribly confusing. Suffice to say that in the United States, works published before 1923 generally are in the public domain. This is why and how some web sites publish older novels word-for-word.

Aren’t there exceptions for nonprofit uses?
Yes. If you seek no commercial advantage from using someone else’s work, it might be permissible to use copyrighted works for school, church, and similar settings. Still, it is best to ask for permission first. If you seek to reproduce copyrighted works in significant ways but for nonprofit use, contact a lawyer.

But commercial web sites republish other people’s material regularly, and they don’t get sued.
True. Copyright law contains a “fair use” defense to infringement that permits for-profit entities to make limited use of copyrighted material without permission. For example, online bookseller Amazon.com can include short excerpts from books in book reviews, but should Amazon get sued, the retailer would bear the burden of proving that the use was fair.

Lots of people post things online because they want people to use their work, right?
Sure. For example, many up-and-coming bands that want wide exposure freely distribute their music on the Internet and have no intention of suing for copyright infringement–until, of course, they hit it big and have money to hire a lawyer to send out cease-and-desist letters.  Many of us post material online just to have our say, to share family photos, to further the public dialog, and to have some fun. Technically all of this material is copyrighted, but realistically we have no intention of suing for infringement.

Is there a legal difference between posting material and linking to it?
Probably. By linking to someone else’s web site or blog, you’re implicitly giving credit to the creator, and likely not using the material for your own monetary benefit. Generally no copyright attaches to mere lists of things, like names in the phone book.

I paid 99 cents to download a song, so can’t I use it however I want?
Yes, you can use it for noncommercial uses.  The law even permits you to have multiple copies of a song that you have paid for only once–one copy on your iPod, another on the home computer, another on a CD that you burned for the car. The theory is that you can listen to a song on only one device at a time.  What you cannot do is provide the song to even one other person, even if you provide it free.  Your friends and family have to buy their own music.

So it’s illegal to burn a CD of my favorite songs and give it to my brother?
Yes, that is copyright infringement.

What sorts of photographs can I legally post on my website?
Photos for which you own the copyright [photos you take], photos in the public domain [the Mona Lisa], or photos for which you have received permission to republish.  But even then, you may violate copyright laws if you seek to make money off these photos. If you’re contemplating a business endeavor involving copyrighted materials, contact a lawyer.

But I repost photos on my web site all the time, and everybody does it!
Yes, many of us do, and most of the time no lawyer comes knocking. But lawyers representing commercial interests do frequently send “cease and desist” letters threatening legal action unless infringement is stopped. Take such threats seriously, particularly if you operate a commercial web site. When in doubt, contact a lawyer who practices copyright law.

© Steven P. Aggergaard • All rights reserved

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