TRADEMARK TUESDAYS – INTRO TO COPYRIGHT LAW

LV

This is my legal series about IP law (named Trademark Tuesdays because that sounds better 🙂  As always, this is to be taken as entertainment and not actual legal advice. You want legal advice, ask your lawyer 🙂

If you’re a writer, you’ve heard the term copyright.  It’s very important in the arts.  So what is a copyright?  It is literally what it sounds like, the right to copy.  It means you own that type of mental work and you are the only one who can make reproductions of it.

On some things it’s easy to say what’s copyrightable and what isn’t.  A book is copyrightable, but what about a title?  Or a made up word?  There it gets a little more tricky.  It gets grey.  Lawyers love grey, it gets us lots of money.  This post is just going to touch on the basics of the more obviously copyrightable stuff, the nuances will come later.

1. For something like a book, the first question is usually along the lines of, “Do I have to register it to have protection?”  Basic answer is no.  You created it, it’s yours and legally no one can take it from you.  You have copyright as soon as the art is put on a medium, as in, words are put on the page.

The tricky part if you get caught in a legal battle is proving it was yours first.  This is where a registered copyright helps because it helps prove it was yours on the date registered (it also does other stuff for you like you can get greater damages in court).

2. You own it as soon as you create it, except for Works for Hire!  This is a big exception you need to be aware of.  If you’re hired to create anything, read the contract carefully, it will usually say if it’s a work for hire or not.  (If it’s not clear, then courts get into factors to determine who owns copyright and that’s a big, expensive legal battle, and these will be discussed in a later article.)

3. Despite popular belief, putting something online does not give everyone with a computer the right to copy and distribute it freely.  Don’t get me wrong, we all do it, we’re just not supposed to.  When you post something online, you’re accepting (maybe even encouraging!) others to share it, but that doesn’t mean you lost your copyright.  (Be careful with this because there does come a point where if you haven’t been controlling who gets to reproduce your creation, you could be giving the impression that it’s freely out there for all to use and this could affect your rights.)

If somebody shares something they weren’t supposed to, ask them to take it down.  It’s your copyright, you didn’t give them permission (a license) to reproduce it.  The formal, legalese term for this is a Cease and Desist letter.

Most of us posting stuff online though, (as in the picture I have above) probably won’t get sued for it because 1. It’s not worth it, a single internet user is small potatoes and not worth the legal battle, also, if the copyright owner sent me a Cease and Desist, I’d listen and that’d be the end of it for most people (as in, they’d know it wouldn’t be worth it to sue me, not that they couldn’t). And 2. Most of our sharing would fall under Fair Use.

4. Fair Use: Be careful here.  Fair Use isn’t what we lawyers call a safe harbor, meaning it’s not a shield from being sued.  It’s an affirmative defense.  That means once you are sued, they prove you violated copyright, then you prove it’s covered under Fair Use.  Usually people can’t afford a lengthy legal battle, so they just take whatever it is down even if their use is clearly Fair Use.  This is stuff like you’re not making money off it, it’s for educational purposes, it’s a parody.  (We’ll go more in depth in a later article).

A good way to avoid troubles like this is simply ask the copyright holder (if you can figure out who it is, another problem with the internet because I couldn’t begin to guess who owns the copyright on the pics I get online).  You like a pic and want to use it on your blog, email the owner and ask.  Most artists will be fine with it, or at most ask for a small licensing fee.

Alright, there’s your primer on copyright laws.  Happy writing!

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8 thoughts on “TRADEMARK TUESDAYS – INTRO TO COPYRIGHT LAW

  1. “…if you can figure out who it is, another problem with the internet because I couldn’t begin to guess who owns the copyright on the pics I get online.”

    This is a VERY dangerous route to take as there have been several bloggers sucesfully sued for as little as a single Copyright violation by photographers. A little Google research should turn up examples.

    Not a lawyer, but my thought is, if you didn’t take the photo yourself, or don’t have permission to use it from the Copyright holder, don’t use it. There are stock photo sites on the net with free or low cost royalty free (you pay once, not royalties forever) images.

    There are also Creative Commons licenses that allow for reproduction, but there are multiple CC license types, so check each photo each time.

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    1. This one’s not quite relevant though because that was a company. They were talking about Fair Use, but they were a company making money using in part these images. They were never really under Fair Use. Fair Use doesn’t have anything to do with how quickly you take something down. It’s you don’t make money off the use, it’s a parody, something like that.

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  2. Rob makes a very important point. Just because it’s not likely for somebody to sue you out of the millions of people online in the country, doesn’t mean they won’t.

    Although, they do send cease and desist letters first and that’s where most bloggers get off that train and the copyright holder lets it go. You take it down and that’s the end of it.

    I’m not sure what happened with this Blogger Beware woman because usually you don’t get damages if you send a take down notice and the person violating copyright takes it down. I’m not saying they can’t get damages, just usually no one pushes it that far.

    This comes with a huge but though, Even if most people are happy if you take the image down and even if legally they couldn’t get too much in licensing fees for your past use if they wanted to (there are statutory damages if the thing is a registered copyright though) and even if you would probably win under a Fair Use defense (that’s a lot of even ifs) they still may demand thousands of dollars to settle it.

    Even if they are not legally entitled to it.

    Yeah.

    See, there’s a difference between what people actually could win if it got dragged through the courts and what they tell you you owe them. It’s basically legal blackmail. Pay me this much or we go to court.

    Also, they could get attorney’s fees on top of whatever licensing fee if they did win. Again, if you’re blogging and not making money off it like millions of us, you’re probably under Fair Use.

    But people are assholes and will demand you pay them off to keep them from suing. Being in the right in the end (again, most of us would fall quite clearly under Fair Use) won’t save you the cost of a legal battle.

    Best course of action, ask first. In this case, it really is better to ask permission than to seek forgiveness.

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