Copyright Law 101

As a web designer, I am often asked questions about copyright law such as, "Can I copyright my website?" or "Is it ok to post this photo I copied from _website_ on my website?"

This article will answer the above questions, and more, with a discussion on (1) what is a copyright, (2) what can be protected by copyright, (3) what cannot be protected by copyright, (4) what is Fair Use of a work, and (5) how to register a copyright.

1. What is a copyright, anyway?

Copyright, at its most basic definition, means "the right to copy".

Back when I was in college, I was once called in to my professor's office to explain why my essay test was nearly identical to that of the student sitting next to me. I was extremelyindignant. I had done the work, Ihad studied, and here another student was ripping off my hard work--maybe even getting me kicked out of school. Fortunately, I had taken another class with that professor, and she was familiar with my writing style. My professor went to bat for me with the dean of students, and the university eventually disciplined the other student for copying my work.

This is similar to what a copyright does. A copyright says, "This is MY work, and only I have the right to copy it." The copyright provides legal protection to its owner. If the copyright is violated, the owner can take the violator to court, receive damages, and even have their lawyer's fees paid by the violator.

2. What can be protected by copyright?

According to the U.S. Copyright Office website (http://www.copyright.gov), protection is available for intellectual property such as "original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture." Websites, photographs, and graphics also may be protected by copyright, since they are considered to fall under the umbrella of "original works of authorship". Derivations of your own copyrighted works are protected by the original copyright.

The sticking point in all this is that just having the work (intellectual property) in your possession does not automatically make you the owner of the copyright. You must be the author of the work, or the legal heir, survivor, etc., of the author to claim copyright. Also, if the work is considered "work for hire", the owner is the person or company that hired the author. For example, when I design a website and author web content for clients, I am working under contract for the client. Because of this, the copyright for the finished website and all the contents belongs to the company that hired me, even though I am the author of the work.

3. So, what cannot be protected by copyright?

Names, ideas, methods, short phrases, systems, and non-tangible (not written down or recorded) works or designs, etc., cannot be protected. For example, I could not copyright my business name, Noisy Duck Web Services, but I could trademark it. Also, I cannot copyright my method of writing articles: (1) pick a topic, (2) determine the intended audience, (3) outline the article, (4) fill in the body of the article, (5) write the introduction and conclusion, (6) revise, (7) edit, (8) polish, (9) submit the article for approval, and (10) reward myself for my hard work with a nice hot cup of cream with coffee. This list of steps for my writing method can be protected, but the method itself cannot.

4. What is Fair Use of a work?

The definition of fair use is difficult to pin down. Many feel that the law as it stands is too complex and offers too many grey areas.

One issue that is very controversial right now is CD and DVD copying. If you crack the copy protections on a DVD so you can watch it on your computer or upload it to your video iPod, you are violating the copyright, and could get into serious legal difficulties, even if it was for your own use. On the other hand, you can buy a CD, rip it to your computer, and upload the music on your MP3 player, or play one of your old vinyl records into your recording software and save it on a CD, and be safe under fair use as long as the music is for your own listening. However, there is a grey area here. What if you want to hook speakers to your iPod and play music while entertaining company? How big a crowd can you entertain before it is public performance instead of private use?

Writers also have complex rules to contend with. For example, earlier in this article I quoted from from a website. Short quotes that directly relate to the topic are fair use of the work. However, if I quoted a significant portion of the website or even just copied a single sentence without giving credit, I would be in violation of the copyright. Another example: Students and teachers may copy parts of works such as books or journal articles for educational purposes, but substantial copying is illegal. Again, a grey area. How much copying is substantial?

Personally, my rule of thumb in determining fair use in my writing and website design business is to simply ask the owner for permission before I use, copy, link to, or quote the work. It's just polite. The worst they can do is say "No", and I avoid any legal difficulties right off the bat.

5. How do I register a copyright?

There are two methods of registering a copyright: automatic and explicit.

All intellectual property/works that are eligible for protection are automatically given that protection when they are created. In other words, the law implicitly provides copyright protection for your work. Contrary to popular belief in "Poor Man's Copyright", you do not need to mail yourself a copy of your work for it to be protected. Don't waste your stamps. If your work exists in tangible form, even if it only exists on a computer or the web, it is already protected.

So why register my copyright if my work is already protected?

The main reason you should explicitly request copyright registration, would be to have an official, date-stamped document stating that the work was created by you, and belongs to you and no one else. This would be crucial to protect any income that might be forthcoming such as royalties, or to protect yourself if someone contests or violates your copyright and you have to go to court to prove your case. There have been several high profile copyright cases in the news recently, such as the plagiarism case author Dan Brown fought and won over his controversial best-selling novel The Da Vinci Code.

Registering a work with the U.S. Copyright Office is somewhat complicated, because different types of works require different forms. However, their website is excellent, and the Registration section (http://www.copyright.gov/register) of the site has links that provide you with the specific information you need, including the forms that need to be filled out, how much the registration fee is, what you need to send in with the forms, and where to send everything. Alternatively, you can call the U.S. Copyright Office at (202) 707-3000 during business hours and request the appropriate forms and instructions be mailed to you.

For more information on copyright law, see the very helpful Frequently Asked Questions (FAQs) section of the U.S. Copyright Office website at (http://www.copyright.gov/help/faq), and the Wikipedia copyright entry at (http://en.wikipedia.org/wiki/Copyright), which may be somewhat easier to decipher than the official U.S. site.