Copyright: Your own
Copyright is a tricky idea, and there are many overarching legal battles going on relating to copyright and the Internet. It’s natural to be a little confused about it. As a web publisher, you also have two look at copyright from two different perspectives. On the one hand, there may be many cases where you need to decide what content created by others you can re-use. On the other, there will be cases where others are trying to use what you’ve created, and you want to know what your own rights and respoinsibilities are.
An alternative to copyright is a Creative Commons license, which is available at varying levels. This new form of protection is true to the collaborative spirit of the of Internet. It allows others to use your work, but requires they give you credit. For more information, see the Creative Commons website.
History
The good news is that, in the U.S., copyright is mentioned specifically in the constitution as something that Congress has the specific power to legislate:
Article 8: … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
http://caselaw.lp.findlaw.com/data/constitution/article01/39.html
There are some excellent primers online about copyright, and this site can only do its best to show your the broad strokes of the law. For specific legal advice for your situation, especially if you’ve already potentially violated someone’s copyright, speak with a lawyer.
http://www.whatiscopyright.org/
http://www.templetons.com/brad/copymyths.html
What Gets Copyright
Basically, there are very few original creative works that are free of copyright. Copyright can be asserted for anything that has the creative input of an individual. Facts cannot be copyrighted, but the presentation of those facts can be. So, James Cameron can create a film about the sinking of the Titanic – the sinking is a fact. But you can’t re-use his story about Jack and Rose and make a computer game or a poster out of it, even if you use look-alikes, because that’s his creative expression of those facts.
If you violate someone’s copyright, even by using a tiny, derivative, inconsequential bit of their work, you can expect to be threatened, perhaps sued. If you go to court, it’s expensive, and if you lose, you’ll owe them at least as much money as you made. Basically, copyright exists to protect the opportunity of a creator of a body of work to profit from that work, and if you profit from someone else’s work, they’re going to try to get that amount back from you – and maybe more, besides.
As a creator of original work, you simply need to fix that work in a tangible form to secure a copyright. Registering with the U.S. Copyright Office is a beneficial, but not necessary, step to further establish the facts of who created a work and when.
Of course, the act of publishing something original on the web establishes copyright and makes the date of publication fairly clear. Your site’s design, your site’s images, your site’s text and your site’s programming, if you came up with it yourself, is copyrighted to you.
Hunting Violations
It is possible that others will take your content and pass it off as their own. If they also publish on the web, a search in Google for some of your unique phrases might turn them up. A service called Copyscape can automatically help you determine if anyone else on the web using your content as their own.
If your copyright has been violated, what do you do? A simple request can work wonders: send an email to the site owner and request they take it down. If that doesn’t work, you can try contacting their ISP and notifying their hosting provider of the copyright violation.
If it’s an image that’s being improperly referenced directly from your site, you can always change the file name. It’s also relatively simple to instruct your web server to serve a different image, one that indicates the image has been stolen. It’s not foolproof, but even if it’s partially effective, it will probably stop your site’s image and bandwidth theft in a hurry.
Respecting Others
Now, what if you’re on the other side of the aisle – you want to use something you didn’t create, but you’re wondering what your rights are.
Well, for one thing, anything created by the government itself, is public domain and can be used by anyone. Very old works are also free for any use – the specifics of the (quite complex) rule can be read here:
http://www.gutenberg.org/howto/copyright-howto
It’s so simple to download and copy photographs that others have published that many people don’t stop and think: just because you can doesn’t mean you should.
You know that saying that everything you needed to know you learned in kindergarten? It applies here:
Don’t steal. If you want to use something that belongs to someone else, ask first.
This is a tricky new landscape, of course. Google, for example, has copies of billions of photographs on its servers that don’t belong to the company. They use them to help people find photographs and web sites through search by displaying thumbnail images (reduced versions about as big as your thumbnail) that is protected by the Fair Use clause of the U.S. Copyright act. Of course, this only governs law in the United States and the Web extends globally. So realize that much of this new world is governed by ethics and etiquette instead of laws and enforcement.
If a work is not public domain, you still may be able to use it. Many documents are published under licenses that grant all sorts of permissions for re-use. Some of the most prominent licenses of this sort are the Creative Commons licenses, and the copyleft licenses
Sharing, after all, is part of the culture of the web, so an effort to legally protect those who wish to share their work with others called the Creative Commons project has emerged. Photographers, artists and others can mark their work with a Creative Commons license that ranges from “All Rights Reserved” to “Some Rights Reserved” allowing others to use their work, as long as they are given credit.
In 2009, the number of Creative Commons-licensed photographs on Flickr topped 100 million.
http://creativecommons.org/
http://en.wikipedia.org/wiki/Copyleft
Copyright: Defenses when you’re accused of violating copyright
For the most part, defenses come up after you’ve been sued for a potential violation. It is, naturally, better not to be in that situation in the first place. But here are some defenses if you are:
- You didn’t violate copyright, it’s entirely your own work. If you didn’t in any way use the debated material, and you can prove this, you’re home free. Basically, you’re saying it’s a coincidence. In most cases this doesn’t come up because it’s clear that you are using the infringed work. It’s more common a defense in music or visual media than writing.
- You didn’t violate copyright, you just copied facts. You can also try to assert that you’re only copying facts, not anything creative. This comes up when you write about something based on underlying facts, but someone else says your work was based on theirs. This is the kind of thing that’s fairly subjective, and it might take a long time and a pile of money to resolve a conflict this way.
- The person suing you doesn’t own the copyright. Sometimes, the person suing thinks they own the copyright, but they don’t. It’s unlikely, but very gratifying, to find this is the case. This happened in the well-publicized case of JibJab’s “This Land Is My Land” animation.http://en.wikipedia.org/wiki/This_Land_Is_Your_Land
- Parody One protected reason to use someone else’s copyrighted material is for the purpose of parody. Note: Parody is not just comedy. For example: you can’t take the characters from TV’s Seinfeld, and animate them having new adventures and put that online. It might be funny, but it’s not parody. Parody is the use of material for the purpose of social commentary. Think of Mad magazine. If you don’t offend a lot of people who liked the original, you probably can’t call it parody. Also, it has to be *all* parody. You can’t tack a little bit of mocking on at the front, and then copy the entire body of work.
- Fair Use Fair use is not an exception to copyright: it’s a defense against infringement. That’s important. It means that copyright still exists, but you’re entitled to you particular use of the material. So if someone else copies a bit of something, and claims fair use, you can’t necessarily use that same bit – you also have to prove fair use. So how do you do that? Well, courts in the U.S. consider several factors:
- Purpose and character of the infringing work Did you just photocopy or cut and paste the original? Or did you carefully and artistically weave portions of it into a new and original piece in as restrained and minimal a fashion as possible? Did you transmute the original song into a statue? Would someone call your work an homage, or a clone? Is someone else likely to think that this is made by the same person, from the same source? Or does the new piece seem entirely different and novel? Are you just trying to make a buck? Or are you doing the new work for art’s sake?
- Nature of the copyrighted work Unfair as it might seem, some works are given “better” copyright protection than others. Most critically, undistributed works (personal letters, songs that have not yet been released) are considered more protectable than other works. Works that have very little original material, are harder (but not impossible) to protect.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole How much of the infringing work is made up of the copyrighted work? How much of the copyrighted work was used, and how “critical” to the original piece was it? For example, did you take the three main characters of Star Trek, rename them, keep every other aspect the same, and create a film about it? Or did you focus on the life of one of the red-shirted nameless security guards and create a rich and vibrant alternative world revolving around their youth – without using the Enterprise, the Federation, or any other of the key ideas of the Star Trek universe?Let’s be clear: there’s no set amount that’s considered safe. For example, it’s often repeated that 30 second music clips are fine, but anything longer can’t be used; however, there’s no law to back that up. Even the use of a few paragraphs from a novel can be too much for fair use. This is usually tied to…
- Effect upon the potential market How is your use of the copyrighted material affecting the market for the original material? This isn’t the deciding factor, because the creator of the original work is entitled to decide what they will and won’t allow to be done with their creation, whether it’s for profit or not. You can’t say that because you aren’t profiting that you haven’t hurt the creator’s chance to make money. And, you can try to copy something for profit but discover that there’s no market for it – and still be sued. But there is a consideration of the market effect of the new work in the equation. Remember, it’s up to the work’s owner to decide if they want to make money from it, and how.
OK, so once you’ve put together your fair use defense, you then weigh the difficulty and time and expense of defending it all in court, in front of a jury of your peers, and you decide if you really want to go through all that or if you’d rather just apologize and settle.
Attribution
Simply crediting the originator of your material doesn’t protect you against being sued for violating copyright. It can be a factor that shows that you thought you were acting honestly and in good faith, and it can also help to convince the person you’re taking from that your use is not a problem.
Even beyond issues of copyright, it’s also good manners (and good self-defense) to attribute information to its proper source. You would want others to properly attribute information you report back to you?