Understanding Copyrights: Frequently Asked Questions

If you are an internet user, have a blog, belong to a social networking site, are a writer, photographer, musician, or artist of any sort, it is important to understand copyright law and follow them. Understanding copyright is important on both sides of the coin too-those who create the copyrighted material and those who view, read or use it.

There are users on the internet who believe that just because you can see it on the internet, this means it's public domain, and therefore one can copy and paste things they find online, or save and use images found online, for their personal blogs. Public domain is not the internet, and understanding copyright law is very important when something isn't part of the public domain.

Let's look a bit more in depth at copyright law.

What is a copyright?

A copyright protects a tangible work created, as the US Copyright Office indicates, to include: "literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording". The copyright protection is meant to prevent someone other than the creator or those whom the creator grants specific permission to use from reproducing the work in any tangible form.

What does a copyright protect or do?

Much like a patent on a product or item, a copyright is a type of protection that grants the creator of any work listed above the exclusive and protected right to use the work in the following ways: the right to reproduce or copy the work, the right to create derivatives or sequels of the work, the right to distribute or disseminate the work, the right to use the work in performance or commerce, the right to display or advertise or promote the work, and the digital and electronic rights to the work.

Copyrights grant and protect this exclusive use of the work for a specified period of time, which is determined by a number of factors, including whether the creator registers the copyright, whether the creator uses a legal name or pen name for registration, and the country in which the copyright was established. Copyright protection averages 75-90 years from either the date of creation or date of the death of the creator, and the remaining time on the copyright protection can be willed to or inherited by heirs of the creator.

At any time, the creator can choose to release their copyright on the work and enter it into the public domain, which would then grant non-creators the same rights listed above without having to gain the creator's permission.

What is a natural or common law copyright vs. registered copyright?

The US Copyright Office allows works to be registered, copies kept on file, and a fee paid to make a public record of the work and register the creator as the owner of the work and set the date of ownership and/or creation, to protect against future claims that the creator did not originally create the work.

A natural copyright is granted to all works listed in this article the minute the work is set in tangible form. Registration of the copyright is not necessary, and for some works it may not be cost effective to register the copyright.

However, should a copyright infringement take place, registered and non-registered copyrights have different levels of legal protection. A non-registered copyright owner can only claim actual damages due to the infringement, once the creator proves he/she is the original creator of the work, while a registered copyright owner can sue for both actual damages and additional statutory damages for the copyright infringement.

Additionally, proving ownership and creation date of a work is easier to achieve when the copyright is registered. Should you claim a copyright on a work, and someone comes along and says they were the original creator of the work, if your copyright is registered, the burden of proof of ownership in court falls to the one making the claim against your copyright. Should you claim a copyright on a work and it is not registered, the burden of proof of copyright ownership will usually fall to you.

What is copyright infringement?

Copyright infringement occurs when someone other than the creator of the work or someone whom the creator of the work has not granted express permission to use the work actually does use the work without permission, in one of the ways listed earlier in the article that is granted exclusively to the copyright holder, with the exception of the Fair Use stipulation and some educational uses.

What is Fair Use?

Fair Use is a section of the copyright code that allows for certain limited use of the work for specific purposes, such as news, parody, criticism/review, and/or quotation or citation. When using a work under Fair Use, only a small percentage of the work can be used, the section of the work that is used must be clearly cited and the original creator credited.

Should there be a dispute between the creator and someone claiming Fair Use, the market value of the Fair Use of the work will be considered. If the Fair Use is making substantial profit from what is claimed as Fair Use, the copyright owner will likely be favored, and their copyright upheld.

What are consequences for copyright infringement?

When someone infringes on a copyright, the first step is to get them to stop the infringement. If there is no monetary consideration, such as someone using a work for personal use or on a blog of personal website where no commerce takes place, usually just asking them to remove the work is enough.

If, however, they refuse to remove the work, or if there is a monetary or commerce situation, the first step is an injunction and/or cease and desist order to stop the copyright infringement; removal, destruction or seizing the copies of the work the infringer has or is using; payment of damages, actual and/or statutory depending on whether it was a registered or non-registered copyright; and possible reimbursement of court and attorney fees should it proceed that far.

Keep in mind, statutory damages can only be awarded when the copyright infringement occurred on a work that is registered with the US Copyright Office, and then only if the infringement occurred a specific amount of time after the registration, and the infringer resides or has his or her principal place of business in the United States.

With the Digital Millennium Copyright Act (DMCA), further action against a copyright infringement can be taken when the copyrighted work appears online in digital or electronic form, including removal from the internet, delisting from search engines, loss of posting/membership privileges on certain websites, IP blocking, among other actions as necessary to protect the copyright.

What cannot be copyrighted?

Copyrights are given only to works as described at the beginning of this article, and things such as quotations, short phrases, ideas, concepts, titles, and in certain instances even outlines, plots and storylines that are not tangible works cannot be copyrighted.

Compilations and anthologies can be copyrighted both as full works, as well as each section or portion being copyrighted individually. However, the issue of who owns the copyright gets murky when there are multiple copyright owners for a compilation and anthology, so it is usually recommended that the individual work is copyrighted, while usage, licensed or publishing rights are then granted or sold to the entity compiling the whole work.

As a general rule, names cannot be copyrighted, such as to allow characters in works to be copyrighted individually. Additionally, artist's names are not usually protected under copyright laws either. Trademarks often handle names and titles or slogans, but even then, there are limits to the reach of the trademark on such things. For example, someone holding a trademark on a name would have to prove that someone else's use of the name or a similar name was intentional in order to capitalize on the success of the name's owner. However, there are no provisions for titles, names, and slogans under the US Copyright laws.

Copyright Law

It is important to understand that infringing on copyrights is a serious matter, and can quickly turn into a legal action against you if you infringe on someone's copyright, and particularly so if you gain any value or monetary consideration for such use. The basic rule to follow here is, if you didn't create it, you shouldn't use it, whether it's on your blog, your personal website, a newsletter to your friends, a flyer, or any other type of tangible form, including pictures you find on the internet.

If you know for sure that the work is in the public domain, then by all means, take advantage of that, but otherwise, you must get the copyright owner's permission to use any tangible works for any reason, in order to protect yourself. It's usually best to get that permission in writing too.

If you are writer, photographer, or artist, know your rights, and don't be afraid to stand up for them. If someone has infringed on your copyrighted worked, whether registered or not, ask them to stop, remove the content, cease and desist, and if they refuse, don't be afraid to report them to the proper authorities or someone who can take action against the infringement.

If someone came into your home and stole something from you, you'd address that, and stealing your copyrighted work is no different.

Sources listed in the resource section, with links to additional copyright information.