The heyday of the Internet seemed to turn traditional notions of copyright on their proverbial heads. The Web proved to be a powerful new publishing medium, and anyone who knew a scrap of HTML went wild posting things online. Gradually, copyright owners — whether writers, music publishers, or others — awoke to the fact that there was no meaningful difference between the Internet and other publishing media — and, therefore, that they should be paid for the use of their material online. Copyright owners started to stand up for their rights, and sites like the old Napster started getting shut down. Today, the pendulum continues to swing between both extremes: On one side, you have the freeze, where large, institutional copyright holders use sophisticated bots to hunt down Web sites using their works, then send notices to take the material down, sometimes even though the material is being used legitimately. On the other hand, there’s the continuing free-for-all, where everyone from large institutions to small businesses or individuals keeps using material without properly compensating copyright holders.
One byproduct of these developments is that the average person has become much savvier about copyright than they were five or 10 years ago. “Most people don’t think anymore that if you find something on the Internet that you’re free to copy it and put it on your Web site,” says Jessica Litman, author of Digital Copyright and professor of copyright and Internet law at The University of Michigan Law School. Another result, though, is the increasing need for writers and other content creators to be aware of copyright law, both to protect their own rights and help prevent them from inadvertently infringing on others’ rights.
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To help meet that need, we’ve gathered tips to help ensure you’re aware of what’s legit and what isn’t when it comes to copyright. Today’s feature focuses on what you should know about copyright when you’re a content creator (Got a blog? Have a Web site that publishes user comments? Then we’re talking to you!). Check back tomorrow for our copyright feature focused on protecting work of your own. *
Know what is copyrightable
Simply put: A copyright grants commercial rights to the owner of an “original work of authorship” that appears in a “fixed form.” This includes everything from pieces of writing and songs to plays, images, and movies — even to architecture and software. The purpose of the copyright is to grant the owner the sole right to profit financially from all uses of the work. Someone wants to publish your article in their publication? They have to get your permission and, if you want, pay you. Someone wants to make a movie version of your book? Same thing. Someone wants to perform your play, song, or book? If you own the copyright and want them to pay, they’ll need to cough up the cash.
Common exceptions to the copyright rule include government documents and works that are considered “common property,” such as a height and weight chart. Another exception is a work whose copyright has expired and is therefore considered “in the public domain” and free for all to use. (Witness the round of movies based on Jane Austen books which have cropped up over the past decade.)
Plagiarism isn’t a copyright infringement, but it could hurt just the same
Copyright involves using someone else’s work and attributing it to them, but without the necessary permissions (and, possibly, payments). Plagiarism involves using someone else’s work and pretending it’s your own. It’s a subtle distinction, but it makes all the difference in the courts. A copyright infringement is a prosecutable offense, and financial damages can be recouped. Plagiarism is simply an ethical offense, and thus cannot be hashed out in the courts. But, don’t think that a plagiarizer won’t suffer penalties. Post someone’s article to your Web site without realizing you needed to get permission? They’ll either ask you take it down, or, worst case, bill you for a license. A pain, but not a career killer. Plagiarize by using someone else’s words, trying to pass them off as your own, and getting busted? See if you get any gigs after that.
| A common misperception about fair use is that size matters. But size actually doesn’t matter. More important is the intent behind the usage. |
When it comes to fair use, size doesn’t matter
“Fair use” is an exception to the copyright rule enabling people to use portions of works for the purposes of reporting on them, commenting on them, and parodying them, as well as for research and education, without needing to get permission to do so. The classic example is a televised movie review. If a TV station wants to broadcast an entire movie, they have to get a license. But if they just want to use a few clips in a review in order to cover the movie, they don’t need any special permission. Because of examples like this, though, a common misperception about fair use is that size matters. That is, that you don’t need a license if you simply use a small portion of a work. But size actually doesn’t matter in this case. More important is the intent behind the usage: Are you using the snippet because you want to report on, comment on, or make fun of the larger work? Or are you simply folding someone else’s creativity into your own, and thereby potentially enhancing the commercial value of your own work? Anthony Elia, a New York publishing attorney and co-author of Author Law A to Z, recalls a case in which an author included song lyrics in the chapter headings of his book — just a few lines here and there. The music publisher objected and threatened to bill the author a separate license for each copy of the book published. The author quickly removed the lyrics.
What’s tricky about “fair use” is that the law doesn’t contain hard and fast rules about what is and is not allowed. Instead, it simply lists a series of factors a judge would consider in evaluating whether the contested use of a piece of a work was fair or not. The Copyright Web site (a resource about copyright and an online copyright registration service) offers a nifty Fair Use Visualizer to help you evaluate whether your use of an item is likely to be considered “fair” or not. Use it as a starting point, but consult a lawyer if you want to be certain.
Publish clips on your Web site appropriately
Over the past decade, freelance writers have discovered that the Internet offers a great way to showcase their work: Set up a Web site, where you describe your areas of expertise, post scanned copies of your clips, and maybe even include thumbnail images of the covers of publications where your work appeared to reinforce your qualifications. You now have an easy way to show potential clients your work. Simple, right? Not quite.
By definition, your Web site is a promotional tool, which means everything on it is being used for commercial purposes (rather than journalistic ones). This means you don’t necessarily have the right to use all the elements that were included in the original article. You own the words you wrote (assuming you didn’t give up rights to them in your contract with the publication), so you can include those. But the photographs, charticles, and other “original works” that were part of the final article? Rights to those belong either to the people who created them or the publication. And unless those folks have given you rights to use them to promote yourself, you’re not legally entitled to put them on your Web site.
Kind of throws a wrench in the whole using-the-Internet-to-display-your-work thing. Here are a few workarounds:
Establish ownership of comments made on your blog
Technically, comments made by visitors to your blog belong to them. They are their “original” works in their “fixed” form. But you might reasonably want to use those comments in some derivative work somewhere down the line, like in an anthology. Follow the lead of sites like WashingtonPost.com, Technorati.com, and Craigslist.org, and post terms and conditions on your Web site that establish your right to use any comments posted as you see fit.
Get permission
If you want to use someone else’s work in your own, and you’re not positive you have claim to fair use, get permission. It’s a potentially long process, so start early. Copyright owners are not always easy to locate. Even once you find them, negotiations might take a while, since there are no set rules on how much it should cost to re-use a particular work in a specific circumstance. To find an owner, start with the database at the U.S. Copyright Office. It’s free if you do it yourself, but if you want to save time, you can pay the Library of Congress (where the Copyright Office sits) to do it for you. For other ideas on ways to locate a copyright holder, take a look at the online cheat sheet provided by Lloyd J. Jassin, a New York publishing attorney and co-author of The Copyright Permission and Libel Handbook.
*Since we’re talking law, we must make clear: This article does not constitute legal advice, but provides tips to get you started. Take the time to educate yourself in depth. If you have concerns stemming from anything you’re working on, consult a lawyer.
E.B. Boyd is a freelance writer based in San Francisco.
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