What's a copyright, anyway?
In order to understand your rights, it helps to know what a copyright is. In
the United States, someone who creates a work of art, takes a photograph, or
writes an essay automatically owns the copyright to that work. The creator
doesn't need to register his or her work with any federal office.
As a content creator, you can, and should, use the familiar (c) symbol on
your work. The correct form is: "Copyright (c) [Year] by [Name]. All Rights
Reserved." This notice preserves your rights to own or sell your work.
If you sell your work, it's a good idea to register your copyright with the
U.S. Copyright Office first. You can get the required forms and instructions
from the Copyright Office. Information is also available on the Web
(http://lcweb.loc.gov/copyright).
There is a small fee for registering a copyright. As owner of a copyright,
you have the right:
- to copy your work, including the right to photocopy it;
- to produce derivative works;
- to perform the work publicly (as in a play);
- to display your work;
- to prevent someone else from claiming they created the work; and
- to prevent someone from creating a bastardized version of your work and
putting your name on it.
As the copyright owner you can sell or give away one, some, or all of these
rights. Writers normally sign contracts spelling out the rights they are selling
to a publisher in return for the fee paid them. Many artists and photographers
do the same.
In recent years, as publishers have created online versions of their
publications, they have tried to stretch their purchased copyrights by claiming
that the fee paid to the author covers the right to republish the content
electronically. Needless to say, this made many authors-including Stephen King
and several New York Times columnists-furious. They fought back, and now many
publishers are carefully spelling out and paying for the rights they need and
want.
The fees paid to content creators normally cover a one-time-only use of the
work. Unless you as a publisher have negotiated up-front and paid for multiple
use of a work, you cannot use it more than once. For example, if you paid a
graphic artist to create an image for your annual report, you cannot reuse that
image on your Web page unless you negotiated that right ahead of time.
When you commission a work or pay a work's creator, make sure the creator
knows you intend to reuse the work. Negotiate and pay the appropriate fee in
advance. If you don't, you may find yourself on the receiving end of a cease and
desist letter from the artist's lawyer.
If you want to use pre-existing work on your Web site or on your company's
intranet, there are ways you can do this legally. One way is to contact one of
the companies that handles electronic rights (such as the CCC) and arrange to
pay royalties for the use of the work.
Fair use, fairly defined
One of the most confusing aspects of copyright and intellectual property is
the concept of fair use. For example, most people understand they shouldn't copy
an entire issue of a magazine. It's fairly common, however, for people to hand
out photocopies of an article they've read. After all, they're not doing it to
make money, so it should be all right.
Wrong. Since the photocopier was invented, publishers have sued corporations
and won because employees of the corporation created copies of their work
without a license. Large photocopier chains like Kinko's have also spent quite a
bit of time in court over the same issue. The only legal way to make photocopies
is to work with an organization like the Copyright Clearance Center.
If you only want to use a portion of a copyrighted work, most people would
consider that fair use. Wrong again. Fair use does allow for limited use of
materials, although the exact point at which you cross the legal line is not
stipulated. Fair use of copyrighted material is limited to a few situations,
some of which comply with the commonly accepted sense of fairness and others of
which do not.
The basics of fair use, according to Statute 107 of the Copyright Act, are as
follows: "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:
- the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the
copyrighted work.
"The fact that a work is unpublished shall not
itself bar a finding of fair use if such finding is
made upon consideration of all the above factors."
The courts have the burden of deciding whether or not someone has violated
this basic outline. They take into account many different factors and sometimes
turn out decisions that don't seem to fall into line with these guidelines. Talk
about problems with your prima facie!
What'S A Netizen to Do?
So what's a law-abiding Internet user to do? Here are a few steps you can
take:
- Avoid using anything you don't have the copyright to use.
- Make sure you negotiate all the rights you need for multiple use of original
works. Expect to pay extra.
- Budget time and money to deal with copyright clearances.
- When in doubt about the copyright of an existing work, use a rights
clearinghouse.
- Check into ways you can pay royalties for materials you want to use. The
Copyright Clearance Center and other organizations can offer advice.
