 This quick guideline does not pretend to be a comprehensive
guide, and I don’t pretend to be a lawyer. (
though I occasionally play one on the Internet )
What I hope to do, however, address some of the more commonly
asked questions presented in my seminars and consulting sessions.
DMCA Alert!
The Digital
Millennium Copyright Act (85K Adobe Acrobat File) changed
copyright in many ways. It put legal strength behind copy-protection
systems, even limiting some fair use rights. The DMCA also changed
the liability outlook for ISPs in major ways.
“I Didn’t Know It Was Copyrighted.
There Wasn’t a Notice or Anything”
Too Bad -- Essentially, Everything is Copyrighted!
 At least that is the safe assumption to make. The moment anything is placed
into a reproducible form, (written down, saved as a file, posted on
a blog or scribbled on a napkin,) it becomes copyrighted information
under the law.
What that means is that if I scribble a network configuration on a
cocktail napkin, hand it to you. You then scan it and put it on a Website,
or redraw it and hand the copy to your network consultant. You have
just infringed my copyright. Before I could be successful in my suit,
however, I have to prove that the material was an original work, and
then I have to prove damages.
After a bazillion bucks in legal fees,
I could find myself awarded a dollar. If you re-draw it without just
tracing it, it might be defensible, but if scanned or otherwise copied,
it is an infringement and the damages might not be just a dollar.
The Copyright Notice is Not Absolutely Necessary.
(But it's still
a good idea.)
You no longer need to put the copyright notice on a document for it
to be covered. It is, however, a good idea to do so. Doing so properly
will greatly enhance your ability to recover damages should litigation
become necessary. This is because the infringer will have more trouble
pleading ignorance as an innocent infringer.
When you do put the notice
on a document, please use the correct format. The symbol is the letter “C” in
a circle. Two parentheses won’t do it. Use © and Not (C). The
word Copyright, and the year the item was created should also
be on the document, along with the phrase “All Rights Reserved.” This
gives you additional protections in some international markets which
are not members of the "Berne Convention." At the moment
this is Bolivia, Peru and a couple of other South American countries.
While not deemed truly necessary, it doesn't hurt.
This Document Copyright ©2010 By
T. S. Eggleston All Rights
Reserved
You Don’t Need to File a Formal Registration
to be Covered!
(But it's still a good idea.)
The answer to this is both true and false. Before you can successfully
sue for infringement, a formal registration must be submitted. Also,
you will usually not recover Punitive Damages and Legal Fees if a formal
registration has not been filed.
The I.P. Lawyers Say:
"If you register a work BEFORE the infringement occurs,
you are entitled to what are called "statutory damages" which
is like punitive damages but no longer called that - since it is
up to $100k for each infringement, it is well worth doing, PLUS
if it is registered beforehand, you are almost guaranteed attorney
fees, which can be considerable in copyright cases. If you register
afterwards you only get the damages you can prove, and do not get
legal fees. Be careful in the international arena though since
under Berne, foreigners may not have to register to protect their
works, only to sue for statutory damages and legal fees. As the
law changed in 1989, there are lots of interesting variations too
complex for here. Short answer , always register, it is cheap at
$20 per work and the atty. fee recovery alone has been as high
as $350,000 in one case."
All Websites are Fair Game for Linking
This is true, sort of. There are a couple of interesting cases awaiting judgment or trial now. It’s not THAT you link which
will cause a problem, but HOW you do so. If you set your website up
with frames, and display an ad in one frame while someone else’s
Website is being displayed in the other, the area gets very gray. You
are effectively pocketing ad revenue for displaying the work of others.
I would not want to be the one on the defendant side of one of these
suits, because the resulting page may be considered a “Derivative
Work.”
One state recently proposed legislation that would prohibit linking
to a website in that state without the written permission of the site
owner. This is of course, totally bogus. Attempting to enforce state
laws across a global medium like the Internet is virtually (pun
intended) impossible. Of course that state could still issue a
warrant for your arrest. While this would probably not be enforced
outside that state, you might find yourself driving through it one
day at an excessive rate of speed. When the friendly constable calls
in the traffic stop . . . well, you get the idea.
It is, however, just good Net etiquette, as well as good business
to drop the site owner or Webmaster a note, thanking them for their
resource. Let them know that you have linked, and mention that a reciprocal
link would be appreciated. While I don’t do this with the really
big corporations like Microsoft, Hewlett Packard or Kodak, I make it
a practice when I link to a small, personal or university site.
Beware of Hidden Infractions
Do not put another company's business name or trademarks inside
your web page META tags. Some less than ethical web developers do this
in an attempt to fool search engines into finding their site instead
of the other one. It is as best unethical, and at worst very illegal
- as seen in several rulings, such as Oppedahl & Larson v. Advanced Concepts,
et al. For the latest roundup of the usual suspects, see the general
roster at Meta
Tags Lawsuits. You definitely don't want to be listed there.
About Celebrity Photographs
- You may sell photographs you take.
- You may reproduce them on a website.
- The normal laws of libel apply, and the truth is generally a defense.
- UNLESS - the photographs are used commercially
to promote or endorse a a product, service or other use in which
the subject could reasonably be expected to receive royalties or
other consideration.
(The above also applies to photos of 'anonymous' people on the street
or other settings.)
Remember: In general, celebrities can afford more
and better lawyers than you! Be safe, not sorry
| Legal
Use |
Improper
Use |
 |
 |
8 x 10 Color Prints of
the Pope and President Carter:
$25.00 Each
( You hold the Copyright ) |
"Acme Bleach -- for the
Whitest Robes in the Vatican"
(Implies Endorsement/Use) |
Buying It Doesn't Necessarily Mean You Own It!
Most people think that when you buy something, you own it. This is
not always true. Consider the case of an artist who creates ceramic
like tiles from commercially available post cards. Even though the
post cards were bought and paid for, the copyright owner holds the
exclusive right to make derivative works, and those tile like things
are just that. Ditto coffee mugs, collages and the like.
This actually gets even more strange as we go on. Say you buy a painting
from a local sidewalk artist, who will obviously never amount to much,
but you sort of liked it. Once on the wall, you decide it’s just
a bit too bright, and should be toned down a bit. Pulling out your
handy can of spray stuff, you give it a few coats to soften the colors.
While you’re at it, you whip out your brush and add one more tree,
making it just perfect for that spot over the sofa. You have just infringed
on that artist’s rights by modifying his or her work, an exclusive
right belonging to the copyright owner. (the artist) You may not even
be permitted to destroy it, since that right may also reside with the
originator.
The I.P. Lawyers Say:
"This artists "moral rights" provision applies
only to those works that meet certain rules, the most important
of which is that there cannot be more than 200 copies of it and
usually it has to be a signed work. I would just say that modifying
or incorporating anothers work of visual art is not a good idea,
either in physical form or in electronic form, which is the real
problem these days with photo editors."
See how strange this stuff can get?
This derivative work section of the law might, (and might is
the scary word) be applied to linking through to a graphic on another
website, giving it the appearance that it is really on yours. Regardless
of how a judge decides, I still would not want to be on the defending
end of this one.
See Also: Just Because You Bought It Doesn't
Mean You Own It
But I’m only using a very small part of
the original image...
This doesn’t matter one Iota. The law reads “whole, or in
part.” In fact, I use this part of the law to save money on copyright
filing fees. If I have 10 or 15 images to copyright, I combine them
all into a single image and register it as a single work. The work
is therefore covered “whole, or in part,” and each image
is a part of the whole. Neat huh? (also cheap)
I got the Domain Name first and I paid for it -- so it’s mine!
YOU COULD BE WRONG!
(NOTE: This Comes Under Trademark Law, Which
Is Almost As Strange)
If it was not already registered, I could run right out and register
disneyland.com if I wanted to. The domain registration authorities
don’t check whether you have the right to use a name, they just
check to see if it is already used. They will therefore gratefully
accept your money, and bingo, you are on the net as disneyland.com
-- until the lawyers at Disney catch you. Then you will be on the losing end
of a nasty trademark infringement suit.
You might not even be able to legally use your own name. Assume
for a moment that your name is Joel Hyatt, and you have a law firm
called Hyatt Legal Services. You want to register hyatt.com, and the
hotel folks have not yet jumped on the Internet wagon. You’d lose
-- Joel A. Hyatt did in a similar case involving trademarks rather
than domain names.
Summary and Resources
The entire arena of intellectual property law and the Internet is
very fuzzy at the moment, and it is going to be a few years before
it becomes any more clear. The very act of looking at a website is
a technical violation of the copyright laws, since you are making
a copy on your hard drive and/or in the memory of your computer. Of
course, this is certainly an “Authorized Copy” since you
couldn’t view the site otherwise, or it may fall under the “Fair
Use” provisions.
Programs like Web Whacker are available which allow you to download
entire Websites into your computer for off-line viewing later. Is this
a violation, an authorized copy or fair use? At the moment, nobody
really knows for sure. It's a safe bet that just using this to download
a site for offline viewing by yourself could be considered an authorized
copy. If, however, I copied that off to diskette and distributed it
at one of my public programs, I could be in deep guano. In fact I might
be in trouble if I showed the copy as part of my presentation even
without distributing it.
The I.P. Lawyers Say:
"I tell my non lawyer audiences to apply the smell test - does
it seem right or kind of shady or sleazy - if it is, its probably
illegal. Best bet is either create your own or buy the rights which
are usually fairly cheap, unless they are really famous like Ansel
Adams photos or Andy Worhol."
In summary, be safe rather than sorry. When there is any doubt, get
written permission to use, copy or modify copyrighted works, and assume
everything is copyrighted. If you are still in doubt, consult an Intellectual
Property Lawyer.
For further research and reference, you may want to check out Title
17 of the US Code-- the Copyright Section.
 The
United States Library of Congress Copyright Office has
a website where you can find out more about copyright
basics, filing
procedures and even get the forms that
you will need.
True Story
At least the lawyers at Hormel Corporation are courteous
- Microsoft
Copyright and Permission Information
-
If you're looking for information on Microsoft copyrights, trademarks,
and permission procedures, you'll find what you need here. Microsoft
addresses questions about copyrights, trademarks, and using the
company's logos, products, and clipart in outside Web sites, marketing
materials, and products. Find out which images, products, and logos
you can use without permission, and which require sign-off from
their respective product groups.
-
The details don't stop there. This site contains all sorts of
little gems: such as, how to legally donate copies of Microsoft
software to non-profits, how non-profits can obtain software, and
how to downgrade to earlier product versions.
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