Copyright FAQ
Glen Wooten
Posting-Frequency: Posted on the 7th and 22nd of each month.
URL: http://www.rexx.com/~jaguar/copyright.html
Copyright FAQ 1.3
By Mel. White & Glen Wooten
Last Updated 5/9/2003
Copyrights - one of the simplest as well as the most misunderstood concepts
around today. From the time we write our first book report in school, draw
our first picture, or write our first story, we are messing around with
copyrights. It can be done correctly, it can be done incorrectly. Let's
look at them, shall we?
First off, the legal stuff. This FAQ is a distillation of some of the talks
that Mel. White & Glen Wooten have done at many conventions, as well as some
of the on-line discussions we've had, from BBS's, to GEnie, and on to the
wide world of the Internet. We have been giving these lectures at
conventions since 1993. We have also written a series of articles for ASFA
(Association of Science Fiction and Fantasy Artists).
Mel. White has had experience with copyrights in the fields of artwork
(having had several books published); as well as computer programming
(working in the public sector). Glen Wooten has had experience with
copyrights in the fields of books, music, and non-print material (making
copyright policy for a large college library system); software (in a
programming company making proprietary industrial machining software); and
in artwork (handling affairs for a relatively successful illustrator & comic
artist). For the record, we are not lawyers, this is not binding legal
advice (ONLY a lawyer can give you that).
At the end of this FAQ, there are several links that will lead you to more
information. Some are quite detailed (which is why we're not going into
specific detail here - why re-invent the wheel), some are general. The
first one you should check out would be the U.S. Copyright Office - that is
your prime information source in the U.S. on copyrights.
It's all really pretty basic (despite what you might think). Whether you
apply it to print, music, movies, music, software, the Internet - it all
still boils down to the same thing. We'll point out a few of the more
common questions, but just because we may be treating it as a case related
to music (for example), it will still probably work the same way if we were
to talk about the internet.
When you have a copyright question that will impact you directly, get what
advice you can from the Internet, from friends, from people you know have
gone through the same sort of thing, but if it's really important, you need
to check with an expert. Consult a copyright lawyer, or possibly the legal
clinic of your nearby law school. Consult the U.S. Copyright Office (or, if
in another country, the appropriate department there). And so we begin...
------------------------------------------
WHAT ARE COPYRIGHTS?
Basically, a copyright gives you the "right to reproduce (copy)." Whatever
it is. Artwork, written material, music, software - if you can imagine it
in your head, and place it in the real world in some form, you can control
what happens to it. It is your creation, you determine its fate.
They define the ownership of the work and prevent others from using the work
in a manner not intended by the author. Copyrights allow you to create your
work AND allow you to share them with the world, with at least some
assurance that you will receive credit and possibly some compensation
(either monetary or in accolades). Not only that, but it allows you some
measure of protection against someone else taking your creation and using it
in a manner that you would not approve of. These laws also put the control
of the income in your hands - to give away or to use to earn your living, as
you prefer.
In the United States, there are 7 basic rights that the copyright code
recognizes - and that the copyright holder ALONE controls:
1) The reproductive right: the right to control reproduction of the work in
whatever form it would copy.
2) The distribution right: that is the right to control distribution of
copies of the work (in whatever form you include or exclude).
3) The adaptive right: the right to produce (or allow others to produce)
derivative works based on the copyrighted work.
4) The performance right: that is the right to perform the copyrighted work
publicly (generally reserved for music, plays, operas, etc...)
5) The display right: that is the right to display the copyrighted work
publicly (which separately refers to display of an original OR display of
reproductions).
6) The integrity right: that is the right of an author to prevent the use of
his or her name as the author of a distorted version of the work, to
prevent intentional distortion of the work, and to prevent destruction of
the work (in reference to one of a kind or extremely limited edition
works, generally artistic. When dealing with destruction, special
conditions apply, check with the Copyright Office.)
7) The attribution right (also referred to as the paternity right): that is
the right of the author to claim authorship of the work and to prevent
the use of his or her name as the author of a work he or she did not
create (or in reference to an altered work).
A copyright allows you control of all of these rights, and they cannot be
taken from you (except in VERY LIMITED legal actions). Only you have the
right to control how these are applied.
WHAT IS PUBLIC DOMAIN?
Public domain is the opposite of a copyright. If you place your work in the
public domain, then you have waived all the rights to it, and no longer have
any say in what happens to it. People may alter it in whatever way they
choose, people may profit off it in any manner, people may reproduce it in
any possible media available.
Be aware of all that public domain implies before you consider placing your
work in the public domain. No one can place your work in the public domain
without your express WRITTEN consent (except in VERY limited circumstances).
If you find that your copyrighted work is being used "in the public domain,"
then you can take action against them.
Items that are part of a group can be put into public domain with the rest
of the group going into public domain. A current case about this is in
regards to the early Mickey Mouse works by Disney. Although being argued
about now, the early Mickey Mouse films (Steamboat Willy, for one) were
slated to go into public domain before the last set of copyright extensions.
Not getting into any of the arguments for or against this, if Steamboat
Willy does fall into the public domain, it would not affect any of Disney's
current projects. The trademark on Mickey would not be affected (as long as
Disney continues to use the Mickey Mouse character, then the trademark is
still in force). However, the Mickey of today has changed a good bit since
the Mickey of Steamboat Willy. The character has evolved, and it can be
argued that the original design could be placed in public domain (while
still retaining the trademarked name of Mickey Mouse). And the films
themselves would almost certainly fall into public domain, but only those
that were released before the cutoff date.
You cannot place your work partially in public domain. You must either give
up all rights, or none. And once a work goes into public domain, it can
never be copyrighted again.
SO ONCE I HAVE A COPYRIGHT, I CAN NEVER LOSE IT?
Yes, and no. There are time limitations on copyrights. Currently,
copyrights last for 70 years past the life of the author, then they
automatically revert to public domain (for works made after January 1,
1978). There are exceptions to this rule; check about your particular case.
When dealing with "Work For Hire," corporate ownership, or anonymous
publications, different rules apply.
Some copyrights MAY be held in perpetuity, if they are maintained (such as
Peter Pan), as arrangements made previously could possibly keep them out of
public domain essentially forever (in the form of Grandfather Laws). But
these are very much the exception to the rule. These type of copyrights are
being challenged today - not in the country of origin (where the Grandfather
Laws would apply fully), but in other countries that have copyright
agreements with that country. The argument is that while a country may pass
a law that widens or narrows copyrights for a particular work, such a
deviation from the norm need not be carried to other countries via Berne or
other conventions - that is, there is no provision in international
copyright agreements to support such a deviation.
During the life of your copyright, it cannot be taken away from you without
permission except in very special cases. One such case would be if you knew
there were rampant violations occurring that you did nothing about. That by
itself would not cause a loss. But if you discovered someone doing
something you didn't like, and they could prove that you never lifted a
finger to stop or even inform the multitude of other infringers, then they
could press a case that you had let the work fall into public domain. This
is extremely rare, and few have won, but it is theoretically possible. This
is a reason to always sign your work, and keep a record of it's first
publication þ for if it was never attributed to you, and there was no way to
tell that you had not released it to public domain, then how strongly could
you defend it years down the line if after allowing a multitude of
infringements when an infringement came along that you wanted to stop? If
you always treated it as though you had put it in public domain, and people
were aware of this, then the logical assumption is that you HAD put it in
public domain.
A recent international case dealt with this: a Cuban photographer (Alberto
Korda) took many pictures of Ch‚ Guevara (never taking public credit for
them), and for years allowed anyone who wanted to use them to do so (because
he felt that it immortalized Ch‚, as well as the Cuban revolution). A few
years ago, Smirnoff vodka used some of these images in an ad campaign; the
photographer did not like this, and complained about copyright infringement.
Seagram's (the company that makes Smirnoff) countered that the photographer
had allowed the copyrights to fall into public domain because he had made no
attempt to stop the many people who had used the images before without
asking permission. By strictest interpretation, they were right (the
pictures were made pre-Berne, they were never registered, no notice of
copyright had ever been given, and world-wide use had been allowed with no
attempt to stop or even notify the infringers), but the government of Cuba
put some pressure on the English government to protect the copyrights. In
a purely political move, Seagram's backed down, but all this says is that if
you don't have the backing of a large governmental agency, you can possibly
lose your copyrights to public domain.
Unlikely that this would happen to you, but why take the chance? Your best
way to prevent this is to make the minimal attempt to contact all infringers
that you are aware of, showing an attempt to control your copyright. If you
were not aware of the violation, you would of course not be held responsible
for it.
I JUST CREATED SOMETHING WONDERFUL! HOW DO I COPYRIGHT IT?
Well, under the current laws (in the United States), you already have. The
Berne Convention, which the U.S. is a signatory to, states that the mere
creation of the work places it under copyright protection. It would not
hurt to place the standard copyright symbol on the work, that is the "C-in-
a-circle" with your REAL name, and the date (or year) of creation. It takes
almost no time; there is no reason not to put a notice on anything you do,
and it will invalidate the excuse of "Innocent Infringement".
ALWAYS use your real name, or if you must, a registered pen name. NEVER use
a "fan" name, or some silly name you came up with. If you cannot prove that
you are that person, then you cannot claim the copyright on the creation.
The Copyright Office does not require you to use your real name, but if you
must take legal action, you must be able to prove that you were the one that
created the work. The use of a registered "D.B.A." or "pen name" should
work, but if you use a "fan name", you might have difficulty.
If you want to go one step further, you can register it with the U.S.
Copyright Office. Basically, you fill out a form, pay a fee, and send them
2 copies of the "best" reproduction of your work (if a book, the hardback
version vs. the paperback, etc...) You will then receive notice that you
have it registered. Basically, what this means is that it's now on file in
the Library of Congress, and that is the best proof that on a certain date,
you created that work before any other.
Registering it also allows you to sue for statutory damages as well as
attorney's fees in case of infringement, as opposed to basic "actual
losses", which may be difficult to calculate.
The mythical "mail myself a copy and don't open it" method offers little
more protection than the non-registered copyright, and is generally a waste
of a stamp. In the U.S., only registration with the Copyright Office is
acknowledged as legal registration.
BERNE CONVENTION? WHAT'S THAT?
The Berne Convention is the latest multi-national agreement on copyrights.
The United States signed to the convention in 1988, and basically it allows
a certain minimum level of copyright protection in all signatory countries
for any person with a copyright. While some laws & levels may be different
in other countries, you are guaranteed at least certain protections.
Countries that have not signed to the convention offer no reciprocal
agreements, and they are often referred to as "copyright jungles" - there is
often rampant copyright violations in those countries.
WHAT CAN I COPYRIGHT?
You can copyright literary works, musical works, dramatic works, &
choreographic works. You also can protect pictorial, graphic & sculptural
works, motion pictures & audiovisual works, sound recordings, as well as
architectural works. Software would be registered as "literary works," maps
& architectural plans would be registered as "pictorial, graphic &
sculptural works".
You CANNOT copyright works that have not been fixed in a tangible form (that
is, you have an idea, but haven't written it down), titles, names, or
slogans. You cannot copyright ideas, procedures, methods, concepts,
principles (although in limited forms these MIGHT be patented, such as a
manufacturing method). You cannot copyright readily available information
(standard calendars with dates, lunar information, or public holidays;
tables of information available publicly, etc...)
Works by the U.S. Government cannot be copyrighted (as they are generally
produced for public use, or "public domain"), although in certain cases,
proper notice must be given as to the source if you use large portions in a
work you wish to copyright.
HOW CAN I GET AN INTERNATIONAL COPYRIGHT?
There is no such thing as an international copyright, you either depend on
cooperation with a Berne Convention country for protection, or you get a
separate copyright in a particular country. Realize that protection in
other countries, while it might be of the same level, may take a different
form. Some countries may allow a certain level of duplication, with some
form of remuneration going into a general fund: you would have to apply to
that fund for reimbursement. Some may allow limited duplication if the work
has been out of print for a certain time. And remember that if you are
aware of a copyright violation in another country, you must follow that
country's rules in dealing with the situation.
I WANT TO COPYRIGHT A CHARACTER I JUST MADE - HOW DO I DO IT?
Well, you can't copyright a character - although you can copyright his
image. You can compile images of that character in a book, and register
that. There is generally no need to register the specific character - the
general copyright does that. If someone uses an exact (or reasonably
similar facsimile) image of the character (that is, you could look at the
picture and say "That's <blank>!"), then they have violated your copyright.
If the character is vaguely similar, yet not the same, there is not a
violation.
Best protection would be to get the character's image published somewhere
(comic, fanzine with a wide circulation, etc...), so that the image is fixed
in hard copy, and can be referenced later. Registering this book (as above)
would show that you created the character first, and would make someone else
attempting to use your creation look very bad.
You can trademark a character, although that is more complicated and costly
than a copyright. If you have trademarked a character, then no one may use
that character without your permission. The one advantage of a trademark is
that it is obviously trademarked (you must use the "R in a circle" or "TM"
with every notice), and the law plainly states that the infringer must prove
that the character is NOT trademarked (or the mark has lapsed), otherwise he
is automatically at fault - with a copyright, you must prove that he has
caused damage before a judgement can be set against the infringer.
FAIR USE LETS ME DO ANYTHING I WANT WITHOUT GETTING PERMISSION, RIGHT?
Wrong. Fair use is one of the most abused concepts of copyrights. Fair use
allows you to use excerpts for journalistic review or educational inclusion.
It is generally considered valid in educational or journalistic settings,
generally not so in a "for profit" setting.
Fair use does not allow you to take a drawn image and scan it, then post it
on a web site. That is a violation of the creator's right to reproduce.
Nor does it allow you to create an image of another's copyrighted character
for "public use." That is a violation of their right of derivative work.
Neither can you make a scan of an image (or large excerpt from a literary
work) for use as advertising - this violates at least 3 of the creator's
rights. Unless you are using it in an educational or journalistic manner,
be very careful about using "Fair Use" as an excuse to violate someone's
copyright. There are very limited uses outside of educational or
journalistic endeavors.
A major copy company recently was severely fined for attempting to classify
the wholesale lifting of material for publication for ultimate use on
college campuses as "Fair Use." While the initial violations were by the
many teachers & professors that used the copy company to make their class
readers (without getting permission from the copyright holders initially),
it was ruled that since the copy company knew the rules and did it anyway,
they were held responsible. It could be argued that it was for educational
use, but it was not excerpts, it was whole articles, and it was in a "for
profit" manner.
WHAT IS THIS "WORK FOR HIRE" THING? SOMEONE WANTS ME TO SIGN AN
AGREEMENT - SHOULD I BE CONCERNED?
Yes. Read any agreements VERY carefully. Work For Hire is a condition that
whatever you produce while in the employ of someone belongs to them. ALL
rights belong to them. The general limitations would be "all work produced
while on the clock," although some can be "24 hours a day - 7 days a week -
52 weeks a year." Be very careful of Work For Hire contracts as you can
assign all the rights to your creations away. Read any contract you are
asked to sign carefully. There is no "implied" Work For Hire these days, it
must be in writing, and both parties must sign to it. If there is any
language like this in a contract, understand fully what it implies, and if
you disagree with it, renegotiate the contract.
If you are a staff artist (or a programmer) for a company, much of what you
will do "on the clock" will be Work For Hire. This is normal. Be fully
aware of the limitation of the contract, and what is "yours" on your off
time.
IF SOMEONE VIOLATES MY COPYRIGHT, IS THAT A CIVIL OR A CRIMINAL
MATTER?
Copyright violation is always at least a civil matter. If, however, the
infringement is willful and for the purposes of financial gain, it can be
pursued as a criminal matter. Depending on the level of violation, the time
incurred, and the amount illegally made, it can be a misdemeanor or a
felony. The statute of limitations of copyright infringement is generally
3 years.
AS LONG AS I DON'T CHARGE ANYTHING FOR IT, IT'S NOT A VIOLATION,
RIGHT?
Wrong. The fact that money does or does not pass between doesn't alter
anything. If you violate any one of the rights a copyright holder has, it's
still a copyright violation. For many creators, it's not about money, it's
about what happens to their creations. They want to have a say in what
happens to their work, so that it doesn't turn into something that offends
them.
ANYTHING ON THE NET IS PUBLIC DOMAIN, RIGHT? I MEAN, IT'S IN A PUBLIC
AREA, RIGHT?
Very much wrong. If someone posts his own stuff to the net, unless it's
stated as "public domain," he still retains all rights to it. If someone
else posts something of that person's without their permission, it's still
a violation. Much of what is on the Internet is potentially in violation,
so never assume that just because you found it on the net is it in public
domain.
WELL, I'M HELPING THE ARTIST (WRITER) BY PUTTING HIS STUFF ON THE NET
FOR HIM. I JUST WANT TO HELP - I LIKE HIS WORK. I'M GIVING HIM
EXPOSURE.
You're not helping him, you're violating his copyright. If you want to help
him, ask him first. If you can't contact him, don't violate his copyrights.
If he says no, that means no. Not much simpler than that...
I WANT TO SET UP A WEB PAGE TO HIGHLIGHT MY FAVOURITE ARTIST (WRITER,
MUSICIAN, MOVIE, BOOK, ETC...) ALL I WANT TO DO IS SHOW EVERYONE HOW
MUCH I LIKE MY FAVOURITE <BLANK>. THERE'S NO PROBLEM - IT FALLS UNDER
FAIR USE, SO I DON'T NEED TO GET PERMISSION, RIGHT?
No, you still need to ask permission. Even if they lose no money, you are
dealing with their copyrighted material, and they may have strict ideas on
what they want to do with their copyright. Many web sites have been shut
down for not getting permission first.
Fair use has (as yet) never been found to be a valid excuse, as the
"journalistic review" part is generally limited to regularly published
papers & magazines. No web site (that we are aware of) has been able to
defend their use of copyrighted material with fair use.
Never assume that the images, words, or music pieces you desire to use are
in the public domain, and can be used without permission. Unless you know
for certain it's public domain, always ask first.
I WANT TO MAKE A CD-ROM (BOOK, COLLECTION) OF MANY PEOPLE'S ART &
STORIES - I DON'T NEED TO GET PERMISSION, JUST MAKE A STATEMENT TO THE
EFFECT OF "ALL COPYRIGHTS BY THEIR CREATORS," RIGHT?
Wrong. If you can't (or don't) get permission, you can't use the work. As
a publisher, it would be your responsibility to verify that all work
included in your collection was legal. If others submit work that may use
a third party's copyrights, it is still your responsibility to verify the
copyrights. The courts have ruled against publishers in these sorts of
cases. If you want to publish ANYTHING, you must be certain of ALL
copyrights contained in any collection you might produce. You can be fined,
your production run confiscated & destroyed, all sorts of unpleasant
things...
OKAY, I JUST WANT TO MAKE A CD-ROM (BOOK, COLLECTION) NOT OF PEOPLE'S
ART, BUT OF THEIR COSTUMES (PHOTOS, LIKENESSES).
That's fine - as long as you have written permission to use their image
(known as a "photo release"). Otherwise, they can prevent you from using
the image - or sue you. A major late-night talk show got sued recently by
someone who's picture was taken and used on the air - with no attempt to
gain permission. Permission has to be secured before a photograph can be
used in a "public" manner - book, newspaper, TV, magazine, CD-ROM - anything
like that.
Now, if you happen to be in the background of a picture taken by a news
photographer of a "news story" (traffic accident, fire, large event,
etc...), then you are incidental to the picture - and permission is not
needed. But if someone comes up to you and says "CHEESE!", snaps your
picture, and you see it on the cover of a magazine - they've got a nice
lawsuit on their hands...
I SHARE A COPYRIGHT WITH SOMEONE ELSE ON A PROPERTY - I WANT TO
PUBLISH AND THEY DON'T. CAN I GO AHEAD AND PUBLISH ANYWAY, SINCE I
OWN PART OF THE COPYRIGHT?
Well, yes and no. If you share a copyright (with one or more people), all
do not have to agree to the use of the property(s) for publication. This is
based on a ruling in the 19th century where one party did not want a
scientific paper published, and the court decreed that a jointly-held
copyright cannot be prevented from being published simply because one party
did not want the other to publish (feeling that to do so would impede the
free flow of scientific information). This is generally applied to literary
works, items of scientific content, and engineering (or architectural) plans
- as a rule, it does not apply to musical or pictorial works (items that are
generally held to be of entertainment value only, although movies can
occasionally pass).
However, if a jointly-held property is used by one party (with or without
the permission of the others), proper credit must still be given to all the
creators (failure to do so is a violation of the attribution right), and
royalties must still be divided among all the creators equally (as the
property still remains the property of ALL the copyright holders, all must
jointly share in any profits). If one of the creators feels strongly enough
that they desire a pseudonym be used instead of their real name, they have
that right (this happens in the movies all the time). And if you are
attempting to shop the property around to publishers, a shared copyright
that does not have permission of ALL the copyright holders may just be seen
as poison by a prospective publisher - since legal action could be taken by
one of the other copyright holders, and a publishing company would generally
want nothing to do with a property that may drag them into a lawsuit.
The best way to get all the legalities straight is with a Letter Of
Agreement. This is basically a document that outlines the methods in which
the properties will be used, how royalties (if any) will be split, and most
importantly, if there is a split or a death in the partnership, how will
that affect the properties. This is not the same as a registered copyright;
that is just a confirmation of creatorship, what the various creators do
among themselves is not the concern of the Copyright Office (at this point,
it becomes a matter of contract law, the copyright being the item of
contention).
ALRIGHT, I'VE DECIDED TO BUY OUT MY PARTNER FOR HIS SHARE OF OUR
JOINTLY-HELD COPYRIGHT SO I CAN DO WHAT I WANT WITHOUT HAVING HIM
INVOLVED. DO I "RE-COPYRIGHT" THE PROPERTY UNDER MY NAME?
No, the Copyright Office is only concerned with the creation date - they are
not concerned with what is done with the property thereafter (except in the
case of a voluntary revision to public domain - then its status is changed,
and the copyright is voided). If a change in the ownership occurs (either
by one partner buying out the other, or a third party purchasing a
copyright), then a legal contract needs to be drawn up outlining the
transfer of ownership, defining the new partners and conditions (if any).
Again, this is a case of contract law, since it is a transfer of property.
I DON'T AGREE WITH THE WHOLE COPYRIGHT CONCEPT - IT'S HORRIBLY
RESTRICTIVE. I WANT TO MAKE EVERYTHING I DO PUBLIC DOMAIN - EVERYONE
SHOULD.
That's nice. This is a choice the creator has. You have the right to place
anything you create in public domain - you created it, you can do what you
want with it. But simply because you disagree with the concept, you cannot
apply your beliefs on others who are using copyrights. By default, the
second you create your work, you have a copyright. You can choose to waive
the copyright - but unless the creator does so, that copyright is still in
effect.
IT'S PARODY (SPOOF, SATIRE), SO I CAN DO WHAT I WANT!
Uh, no. The whole concept of parody when related to someone else's creation
came about from the old English paper Punch!, which lampooned the politicals
of the day. You'll find many parodies in today's papers. There is a very
fine line between parody and libel; the closer you are, the better you make
your point. You generally have protection when you are using it in a
journalistic manner. When you attempt to apply it to a commercial venture,
it very seldom works. If you parody a CONCEPT, you are not in violation,
since you are not using specific identifying elements from the original
work.
One exception is MAD Magazine, who publishes parodies month after month.
But they have a staff of lawyers constantly going over the content, so they
know EXACTLY where the line is, and it can be argued that they are doing it
in a journalistic manner. They never repeat the exact same routine twice
with the same parodied character.
I ASKED SOMEONE TO DRAW ME A PICTURE OF A BEAR - I'VE GOT ALL THE
RIGHTS ON IT, RIGHT? IT'S A WORK-FOR-HIRE SITUATION, YES?
No. Work For Hire is never in effect unless a written contract states it.
As for rights, by default, the artist retains all rights except for the
display right. If you just asked them to create something totally on their
own, they did the majority of the work, they retain the majority of the
rights. You own the right to the original, that's all.
If, however, you supply a detailed description (and/or pictures as drawn by
you or others) for them to work from, then you would share certain rights.
Neither could reprint without the other's permission (as the content would
belong to the person commissioning the work, but the actual artwork would be
considered the artist's creation). This would include scanning it and
putting it on a web page.
If there are any questions, always work out an agreement beforehand - in
this sort of case, it is NOT easier to get forgiveness than permission.
I'VE MODIFIED WHAT SOMEONE ELSE DID, SO IT'S A DERIVATIVE WORK NOW -
I CAN COPYRIGHT THAT, YES?
Not at all. You have violated their copyright. The right to assign
derivative works rests SOLELY with the copyright holder - you cannot assume
that you can do it. If it's sufficiently different, you might be able to
get a copyright, but if it's obviously taken from another copyrighted work -
it's infringement. Plain and simple.
IT'S ONLY FOR PERSONAL USE - SO IT'S LEGAL, RIGHT?
Maybe. Technically speaking, if you violate any of the rights, it is a
violation. But if it's for your own personal use, there would generally
never be prosecution - it wouldn't be worth it. If you decide to give or
sell or publicly display your "violation," then you may be in trouble.
You can make a copy of your favourite CD onto a cassette - although
technically you should have bought the cassette. You can scan the artwork
you just got and put it on your computer - although you should have gotten
permission first. But if you decide to make gifts or (or sell) these
duplicates - you are in blatant violation, and CAN be prosecuted. "Personal
Use" is an umbrella for one, not for two (or more).
One limited exception is for "archival" use, which you would be allowed to
make a copy of something that might be expected to suffer wear & tear
through regular use. A floppy disk of software, a set of sheet music,
something that might be damaged under normal usage. An exact copy can be
made (with no change in format - a print could not be scanned, etc...), and
the original is to be put away safely and not used. The copy would be used,
and if damaged, reconstructed from the original. Making 2 copies of program
for use by you, and by a friend (for "off-site storage" - it's been tried)
would not be legal.
BUT, IN THE ELECTRONIC AGE, THE ONLY WAY TO BE KNOWN IS TO PUT (ALL
YOUR) STUFF ON THE NET FOR EVERYONE TO SEE!
That's one possibility. But many artists and writers who do that find that
it doesn't help them - especially if everyone can just download their stuff
for free. For the time being, the physical world still works best for most
people, and the "old methods" of distribution are far from dead.
If you place a majority of your work on the net, remember that you've
already done the hard work for a potential violator - he doesn't have to
work at putting it in electronic form, you've done that for him. He can
modify it at his leisure now. You've made it much easier for him to take
the story or artwork and publish it in a book, or put it on a CD-ROM and
sell that (this has happened more than once). Be very careful of what you
release. Know the dangers: it can help you - it can hurt you.
Remember, a large portion of the people who tell you that you have to put
everything you have on the net generally would never pay for it - so if you
want to possibly do something with your work later, be very careful. We
have heard from many people "Everyone says they want to see me do a
particular piece, but when I do, they don't buy it!" But they didn't say
they wanted to buy it, they said they wanted to see you do it... If sales
are what you are looking for, putting ALL your work on the web may be a big
mistake...
I FOUND SOMETHING ON THE NET THAT I THINK MAY NOT HAVE THE AUTHOR'S
PERMISSION - DO I HAVE TO LET THE AUTHOR KNOW?
No, you are not legally obligated - but it would be the right thing to do.
If it was authorized, then it lets the author know that the work is getting
good distribution. If it's not authorized, then you would be helping them
control copyright violations. Either way, you'd be helping the creator, and
they generally appreciate that.
BUT I REALLY WANT TO PUT MY ART ON MY WEBSITE - IS THERE ANYTHING I
CAN DO TO PROTECT MYSELF?
Well, if you absolutely insist, don't put ALL of your art on the web page.
Not if you want to do anything with it again. Use older artwork (to show
what you CAN do, not ALL that you do). Do NOT use high-rez images, use 72
dpi or lesser. If you are doing work in full colour, consider using a 4-bit
(16 colour) image, NOT a 24-bit image. If you can, lay a "watermark" in the
background, something that will be very difficult to remove (such as the
network identifiers most TV shows have in the lower right-corner).
Consider this analogy: If you're a furniture store, putting pictures of all
the furniture you have for sale on a web page would be good business. If
you're an artist, selling low-cost (that is, NOT fine art) prints, putting
full-colour, high resolution images of ALL the images available on your site
would be stupid - you just gave them what they might have bought...
BUT, INFORMATION YEARNS TO BE FREE! IT'S CRIMINAL TO SUPPRESS THE
FREE FLOW OF IDEAS AND CONCEPTS!
Not getting AT ALL into the philosophical debate on that subject, I will
agree that it is wrong to suppress the free flow of information. BUT, what
is information? Information is facts and figures. The capital of North
Carolina is Raleigh, that is a fact. The fact that there are 100 counties
in North Carolina, that is a figure. But, if you were to draw a map of
North Carolina, showing the 100 counties, with the county seats in each of
them, with the capital of Raleigh in Wake county, that is not a fact,
figure, or even information: that is a personal expression of facts AND
figures, created by a person. The map did not spring forth of itself, it
was created. The map conveys information, but is not information in and of
itself.
BEING information and PROVIDING information are often 2 entirely different
things. The information (that is, the facts and figures that are freely
available) is available to everyone, to do with as they please. They may
create anything out of it. BUT, if someone has already created something
out of that information (be it a book, a picture, a musical piece, a video,
a computer program, etc...), that is a unique creation that conveys the
information used to create it. It is not just a pile of information, it is
the creator's vision of what the information means to them. It is the
product of that person's intellect, hence it is "intellectual property".
So no, you cannot own information, information is free to the world. But
the expressions of that information, as shaped by an individual's vision and
experiences, is no longer basic information, it is the product of
information and personal creativity, hence it is a unique creation that did
not exist before the individual put his or her mind to it and generated this
new work of creativity, be it a poem, a book, music, art, architectural
design, etc...
We are all information. We are the expression of our genetic code. But we
are not just information, that information was simply used in our
construction. Your parents combined their information to create a new item,
one that is unique. Their creation is like none before. Likewise, the
expression of an idea by one person is unique, and like none other. In pre-
school terms, if the teacher gives the class a box of crayons, a sheet of
paper, puts an apple on her desk and says "Draw the apple", everyone has the
same tools and the same information to work from. In most every instance,
their creations will be different and unique, because of the way they see
the apple.
SO, is information free? Absolutely, without a doubt, no question. Is
someone's expression of that information, shaped by their experiences, their
mindset, their unique outlook on life free? No, it is not - not unless that
is their desire. Everyone's expressions are their unique property, to do
with as they please - and are NOT the property of the world. If the world
wants something like they created, they can negotiate with the creator for
the rights to it, or let them take the same base materials and information
and come up with something on their own - that is their right. But the
creation of an individual is absolutely unique, and is the property of no
one save those that the creator desires.
ALRIGHT, I'VE FOUND SOMEONE VIOLATING MY COPYRIGHT - WHAT'S THE FIRST
THING I SHOULD DO?
The first thing to do is to simply notify them. They may not know that it
is your work, and that it's illegal to have it displayed without permission.
In many cases, a simple notification will do it. If not, a cease-and-desist
letter is required, ordering them to stop using your copyrighted material
(you can write it, or a lawyer can). If that doesn't work, you may have to
take legal action against them, depending on the situation. But starting
off with a simple notification is best - don't go immediately to a lawsuit.
Subtlety is best - but have a big stick (figuratively speaking) handy, just
in case.
WHAT'S THE BIG DEAL IF I WANT TO SELL SOMETHING WITH A DISNEY
CHARACTER ON IT? THEY'RE BIG ENOUGH AS IT IS - WHAT WOULD IT HURT IF
I TOOK SOMETHING FROM THEM?
Using that logic, if it's ethical for you to swipe from them, then it's as
equally ethical for them to swipe from you. The large and the small are
protected in the same manner - if it's good enough for you, it's good enough
for them. The law applies equally to the largest corporation down to the
lowliest writer.
Copyrights are really pretty basic - if you have a copyright, you control
what can be done with it. If you do not have control of the copyright, then
you can't do with it as you please (with certain VERY LIMITED exceptions).
Generally, if you ask permission, you'd be surprised what you can get. If
you don't, don't be surprised at what you get.
------------------------------------------
And, so you could get to the specifics before you had to mess with the
history lesson:
HOW DID COPYRIGHTS BEGIN?
The seeds of our modern copyright system appear to have germinated in the
13th century, when any nobleman, high official (or in fact anyone with power
over the mere serfs) could essentially confiscate someone else's creation,
and claim it for themselves. If you had more power, you could do as you
pleased (a common problem in the Dark Ages). In France (or possibly
Belgium), a duke or baron was being besieged by the common people to protect
their right to create things. He rather flippantly granted them the rights
to their own products, not quite realizing what he had done. His noble
friends soon told him what he had done, and how much they would lose by his
magnanimous actions, but it was too late for him to retract his decree - the
people now loved him. It wouldn't be very wise to make them unlove him...
The first concrete laws regarding copyrights came immediately after
Gutenberg put his printing press into operation. In 1476, the city of
Venice set up a series of privileges to enable booksellers to print certain
books. Soon after, many more countries set up similar regulations. But the
early laws bore little resemblance to our current laws, since they protected
only the entrepreneur and not the creator.
For about the next 200 years, most of the granting of copyrights were to
official printers, as decreed by the ruling body. The author often times
had little say in the matter, and in fact saw little gain from these new
laws. The printer gained from this, since they could claim an exclusive
right to print something. The state gained a fairly tight rein on exactly
what got printed, as well as getting a good bit of revenue from the granting
of exclusive rights. They controlled the flow of information, leading to
the opportunity to exercise political or religious control.
Our modern concept of copyrights began when the British parliament
instituted the Statutes of Anne (1710), which declared that the creator of
a work owned said work and granted a limited term of protection for the
work. As before, this concept soon altered all copyright laws, and formed
the foundations for our system today. Our current laws protect those who
produce new works, as opposed to older laws that protect those who would
REPRODUCE the work.
------------------------------------------
MORE INFORMATION:
This FAQ - online
http://www.rexx.com/~jaguar/copyright.html
U.S. Copyright Office - your FIRST, BEST source for U.S. information
http://www.loc.gov/copyright
Terry Carroll's Copyright FAQ - An excellent FAQ, and many fine links
http://www.tjc.com/copyright/FAQ
Canadian Intellectual Property Office
http://opic.gc.ca
United Kingdom Intellectual Property Office
http://www.hmso.gov.uk
U.S. Patent & Trademark Office
http://www.uspto.gov
Stanford's Fair Use / Copyright Page
http://fairuse.stanford.edu
Cornell University
http://www.law.cornell.edu/topics/copyright.html
Nolo Legal Encyclopedia
http://www.nolo.com/encyclopedia/pct_ency.html
American Library Association
http://www.ala.org
Associations Of Research Libraries
http://arl.cni.org/info/frn/copy/copytoc.html
Software Publishers Association
http://www.spa.org
Business Software Alliance
http://www.bsa.org
World Intellectual Property Organization
http://www.wipo.org
International Federation of Reprographics Rights Organisations - various
countries copyrights clearance offices (usually private companies, but
with good information on licensing in a particular country).
http://www.ifrro.org
Do you have links to non U.S. copyright agencies (preferably the official
governmental office in that country)? If so, please pass them along to us
for inclusion in this listing.
------------------------------------------
HOW TO CONTACT US:
Mel. White: m...@coyotedancing.com
Glen Wooten: jag...@rexx.com
All contents of this FAQ copyright 2003 Mel. White & Glen Wooten.
All rights reserved.
Permission to reproduce may be given upon contacting the authors.
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