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Copyright Law: What Every Blogger Should Know
By MoonDog | February 26, 2008
As most of you know I had an article copied, edited and ultimately posted at The Sporting News web site not long ago. The person who hijacked my article claimed the work to be his own and violated my copyright in doing so. At the time, I was mostly ignorant of the copyright laws and what my rights were.
As a result, I decided to investigate the legal aspects involving copyrights and trademarks. My research has uncovered some very important facts all bloggers should know.
Please be aware that I sought and gained permission to copy verbatim portions of the information contained within this article from other web sites. There is some information throughout the article that has been moderately revised to make it easier to read, most notably the definitions governing copyright law, U.S. Code as it pertains to copyright laws and historical information.
I’ve conferred with a number of attorneys on this subject and I want to assure you I’ve taken every measure to ensure the information contained within is accurate. I’d like to thank Dr. Ronald B. Standler for allowing me to copy all of the U.S. Codes from his site. It was a huge time saver and I’m very grateful for his efforts on this very important subject. I’ve included a link to Dr. Standler’s site below.
I’d also like to thank lawvol for his interpretations and information he provided to assist me in writing this article. Finally, I’d like to thank my attorney, Mr. Bruce Ralston, for his extensive knowledge of copyright laws. Without their assistance, I wouldn’t have been able to provide this information to you.
Please be aware of the fact that I am not an attorney. I make no representations as such and the information contained within is for educational purposes only. Should you require assistance regarding copyright laws, please contact a licensed attorney.
At the end of this article I’ve listed the sites where I captured all of my information. Please take a moment to visit these sites because you’ll find even more helpful information that goes beyond the scope of this article.
I’ve structured this article to have the greatest effect for those of you writing articles and posting them on your own sites, or other sites like Fox, Real Sports Bloggers or Bleacher Report. The enforcement of your copyrights is no different if you own a site or post at another web site, regardless of the site’s copyright notice.
I would suggest you read the copyright notices of the sites you are posting on. If there is verbiage implying or specifically stating that you are transferring or relinquishing the exclusive rights to your copyrighted material, then I would suggest you take one of two courses of action. Get a written amendment specifically addressing your content with the understanding the copyright is yours alone, and you maintain all exclusive rights to said content. If the site in question doesn’t provide you with a written amendment, frankly I wouldn’t post my articles at that site any longer.
It should be noted that those of us owning a web site have an easier means of establishing and enforcing our copyrights. We have the ability to tag each page and we can insert an all-encompassing copyright notice into our site. Examples of such can be viewed on this site at the bottom of the sidebar to left, or by visiting lawvol’s site, Gate21, by clicking here. The verbiage may be different, but both copyright notices serve the same purpose.
For those of you posting at other sites, inserting a copyright tag within the article should be permissible, but as noted above, you’ll need to contact the site in question regarding its policies.
Definitions
First, let’s identify the difference between copyrights and trademarks because the two are often confused. A copyright, symbolized “©”, gives the creator or developer of an original work exclusive rights to a wide range of intellectual and artistic forms. Any original idea expressed in a tangible form qualifies the work as copyrightable. Examples include articles posted on internet sites, poems, plays, theses, musical compositions, radio broadcasts and several others.
A trademark, symbolized “™”, is an intellectual property expressed in the form of a logo, design, phrase, symbol, image or web site domain name that has exclusively been identified to a particular entity. Trademarks are used by individuals, business organizations or other legal entities. For those of you owning a web site, you may avail yourself of trademark laws as noted above. For those of you posting articles at other web sites, trademark law does not apply.
Copyright Origin
The Berne Convention of 1886 was the first to establish recognition of copyrights among sovereign nations. The U.S. did not sign the Berne Convention until 1989. The regulations of the Berne Convention are incorporated into the 1995 World Trade Organization’s TRIPS agreement giving the Berne Convention nearly global recognition in the application of copyrights. The 2002 WIPO Copyright Treaty enacted greater restrictions on the use of technology to copy works in the nations that ratified it.
Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation. As soon as a work is fixed and expressed in a tangible medium, the author is automatically entitled to all copyrights within the work, unless the author explicitly disclaims them, transfers them, sells them, gives expressed permission of their use or until the copyright expires. In short, an author doesn’t need to register or apply for a copyright in countries adhering to the Berne Convention and the copyright holder is entitled to enforce their exclusive rights.
Copyright Exclusive Rights
The phrase “exclusive right” means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without the author’s, creators or developers written permission. Several exclusive rights typically attach to the holder of a copyright, conferred by 17 USC §106.
1. Produce copies or reproductions of the work and to sell those copies (including electronic).
2. Import or export the work.
3. Create derivative works (works that adapt the original work).
4. Perform or display the work publicly.
5. Sell or assign these rights to others.
6. Transmit or display by radio or video.
Fair Use Exception
Copyrights have been internationally standardized, lasting between fifty to a hundred years from the creator death, or a finite period for anonymous or corporate creations. Most jurisdictions recognize copyright limitations, allowing “fair” exceptions, or “fair use” to the creator’s exclusivity of copyright, and giving users certain rights.
Fair use is governed by 17 USC §107, in which the following applies.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
As an example, if someone writes an article posted on a web site and I comment on the contents at the original web site, my web site, or yet another web site, I can quote the author’s words verbatim and must do so in the exact form, regardless if the author has made spelling, punctuation, grammatical or known factual errors. By adhering to those rules, the commentary I write does not make me guilty of copyright infringement.
Copyright Assignments, Transfers and Licenses
A copyright, in whole or in part, may be assigned or transferred from one party to another. For example, a musician who records an album will often sign an agreement with a record company in which the musician agrees to transfer all copyright in the recordings in exchange for royalties and other considerations.
Amendments to the U.S. Copyright statutes in 1998 included a new section making it wrongful to “intentionally remove or alter” any one or more of the following items.
1. Notice of copyright.
2. Title of the work.
3. Author’s name and other identifying information about the author.
4. Copyright owner’s name and other identifying information about the copyright owner or “Terms and conditions for the use of the work.”
The Berne Convention also addresses the transfer of exclusive rights, specifically in Article 6 (bis) 1, “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
It should be noted that exclusive rights must be transferred in writing. As an example, if I ask you to post an article at this site, I must receive your written permission to do so. You can not verbally express your permission to another site.
The advent of the internet and other forms of digital media has altered the scope of copyright enforcement and infringement. Thus, the creation of new and revised laws to cover internet copyrights was implemented over the past decade.
Copyright Infringement
Anyone who copies text or images from a web site and then posts the content, either whole or in part, at another web site is infringing a copyright. Even if revisions are made prior to posting the content, the act of posting is copyright infringement.
Copying illustrations, diagrams, charts, graphs, photographs, fixed or animated GIF’s, JPEG’s, BMP’s, and other web based images always requires permission of the copyright owner, unless the works are clearly in the public domain.
Dr. Standler writes, “The law requires that the author of a web site, book, etc. ask permission of the copyright owner before displaying any copyrighted work. The burden is on the copier to ask permission. It is not the duty of the copyright owner to cruise the Internet and ask authors to stop infringing a copyright. In fact, the copyright owner can file copyright infringement litigation immediately on discovering the unauthorized use of copyrighted material.”
In other words, it is not incumbent upon the authors, creators or developers of fixed works to ensure their copyrights aren’t being infringed.
United States Codes and Statutes
17 USC §1202
Violation of this section entitles the copyright owner to statutory damages between $2500.00 and $25,000.00 for a first offense by the defendant, or payment of actual damages, whichever are greater. For a subsequent offense by a defendant within three years, statutory damages may be tripled. In addition, the judge “may award reasonable attorney’s fees to the prevailing party.”
17 USC §1203
These new penalties for removing or altering a copyright notice give authors and owners of copyrights a new tool to prosecute plagiarists.
17 USC §§ 401(a), 407(a), 408(a)
The current law in the U.S. requires neither a notice of copyright nor registration of the work with the U.S. Copyright Office.
17 USC §401(d)
However, if a work does have a notice, then an infringer can not claim a “defense based on innocent infringement in mitigation of actual or statutory damages.”
However, while registration isn’t needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney’s fees. In the U.S., registering after an infringement only enables one to receive actual damages and lost profits. Generally, copyright is enforced as a civil matter, however, copyright violations involving more than 10 copies and valued over $2500.00 is a felony.
17 USC §410(c)
The registration is prima facie evidence of the validity of the copyright in litigation for copyright infringement.
17 USC §411(a)
The author may file suit for infringement of the copyright.
17 USC §§412, 504(c)
The author may seek an award of statutory damages between $750.00 and $30,000.00 (i.e., the author is entitled to money from the infringer, without the author needing to show financial loss from the infringement). If the infringement was “willful,” the statutory damages can go as high as $150,000.00
Some important points of note, Dr. Standler writes, “If the infringement is proven to be “innocent” (one factor can be that the copyright notice was not used), the damages can be reduced to $200.00.”
Dr. Standler further states, “You are eligible for statutory damages if you register before the infringement or within 3 months of publication. If not eligible for statutory damages, you are entitled to actual damages for infringement. This usually is the normal license fee plus profits made from the infringement (that may be difficult to prove). Sometimes, however, actual damages can be significant.”
17 USC §§412, 505
A court may require the infringer to pay all of the attorney’s fees of the author.
Another point of particular interest, the U.S. Copyright statute does not recognize posting an article to a web site as a publication. I personally don’t agree with this and believe the Copyright Office should recognize web sites as publications. Therefore, posting works to a web site would be considered published. As it stands now, the U.S. Copyright statute, 17 U.S.C. §101, states publication takes place when the following occurs.
1. The distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease or lending.
2. A public performance or display of a work does not of itself constitute publication.
With specific regard to internet site posting, the U.S. Copyright statute, 17 USC §106(5), states the posting of work to a web site is a “public display” of the work, which is among the rights exclusively reserved to the owner of the copyrighted work.
Contrary to what you may have been told, a blogger has every right to avail themselves of copyright laws. You do not have to be a paid journalist in order to be protected from copyright infringement. There is no entity on the internet that can circumvent your copyright nor can they assume exclusive rights to your work regardless of their policies. Moreover, a site can delete your work in whole if it is in violation of their content policy, but they can’t alter it any way to make your work suitable for posting on their site.
Should anyone find any information contained within this article to be inaccurate, or if there is additional information that should be included, please notify me via comment or e-mail.
Sources:
http://www.bitlaw.com/copyright/
http://www.templetons.com/brad/copymyths.html
http://www.utsystem.edu/ogc/IntellectualProperty/faculty.htm
http://en.wikipedia.org/wiki/Copyright
http://en.wikipedia.org/wiki/Trademark
http://lcweb.loc.gov/copyright/
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Tags: attorneys, legal aspects, copyright law, General Topics, Social Issues, copyrights and trademarks, copyright laws, General Topics, bloggers, Uncategorized
Topics: General Topics, Social Issues |
3 Responses to “Copyright Law: What Every Blogger Should Know”
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June 12th, 2008 at 11:41 am
what ever happened with the article you wrote?
June 12th, 2008 at 12:05 pm
You mean the one that got hijacked from me? I contacted The Sporting News and told me what happened and proved it was my work. They took the article off their site immediately.
I told them they were lucky because they were liable as well. Had they kept it on their site, I could have pursued them legally.
Thanks for coming by.
June 12th, 2008 at 4:21 pm
Thanks for the info… theres some good stuff here. I appreciate you compiling it.