A Few Notes on Copyright Law

Like So Many Things In Law, It's Boring, But Really Useful

Count your blessings. This is a short essay that goes over, very quickly, what copyright law is, why we have to follow it, and why we get mired in knee-deep muck if we break it. I have this on my website because I have an extreme dislike for other people taking my essays and reviews and passing them off as their own work. Yes, I know copyright is virtually non-existent on the Internet because it's so hard to enforce. Yes, I know the moral high ground is a very lonely place when you can't enforce the law. That doesn't change anything. There is such a thing as copyright law and it does apply to the Internet. This comes as a great surprise to some people, who think that just because it was uploaded, the author has given up all rights to the work, whatever it was. Untrue.

I've got a fair amount of experience with copyright violation. Most notably, my (in)famous essay on “TwinkiePagans,” the innerdolphinlovechild so many ceremonial magicians love to hate, was passed around from mailing list to mailing list with at least eight different claims of authorship. None of them mine. In other areas other than my admittedly small circle of occult/Pagan/magical publishing, I've seen people work for months on fiction, only to have it copied off the net and posted to archives under a different author's name. Sometimes it wins prizes in the new archives. Isn't that lovely? A web designer I know in England was surprised to find her entire site design lifted by another person - style sheets, graphics, fonts and all. The site had been up for a whole two days. No apology, no retraction, just blatant plagiarism. That. Pisses. Me. Off.

Had someone told me ten years ago that I would be angry and frustrated that some nitwit was passing my carefully crafted book reviews off as their own work to a goggle-eyed audience of frustrated intellectual adolescents, I might have laughed. Maybe. Now I just want heads to roll. That's unlikely. Even if copyright law was enforcable on the Internet (which it really isn't, unless you're Warner Brothers or another Big Time media company), it's not a hanging offense. More's the pity. Still, it's not acceptable, in most circles, and people who are caught doing it are embarassed and often ashamed of themselves. As they should be. I've found that most of the people who are caught plagiarizing (those with an ounce of decency, or at least a soul) will backpedal like…um, like crazy, for lack of a better analogy, and offer apologies, lame explainations (“I didn't know it belonged to somebody!”) retractions, even Actual Cash to the original author/creator of the plagiarized item in question. At the very least, they'll usually remove the offending item from the site. Now I'm getting ahead of myself. First, I want to take a broad look at what copyright law is and how it applies to everything - even things published on the Internet.

The first thing to understand is that copyright laws change. They're not necessarily the same from year to year. They generally get changed when someone with a lot of money has a lot to lose under current copyright law. Example: Walt Disney died 50 years ago. All of his work - images too, according to the law - would have gone into public domain this year. Disney, needless to say, has a lot of interest in keeping Mickey Mouse & Co. under copyright. The law was changed to 70 years from the author or creator's death.

Specifically, this is referred to as the “Duration of Rights.” Under current law, the copyright term for works created by individuals is the life of the author plus 70 years. The copyright term for “works made for hire” is 95 years from the date of first “publication” (distribution of copies to the general public) or 120 years from the date of creation, whichever expires first. Works made for hire are works created by employees for employers and certain types of specially commissioned works (for example, animators working for Disney). Copyright protects “works of authorship.” The standard for a “work of authorship” is something that is “original” and “fixed” in a tangible medium (the Web is considered a tangible medium). The Copyright Act states that works of authorship include the following types of works:

  • Literary works. Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories. Book reviews would go in here. So would semihumorous essays.
  • Musical works. Songs, advertising jingles, and instrumentals.
  • Dramatic works. Plays, operas, and skits.
  • Pantomimes and choreographic works. Ballets, modern dance, jazz dance, and mime works.
  • Pictorial, graphic, and sculptural works. Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art. WEB DESIGN falls into this category.
  • Motion pictures and other audiovisual works. Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works.
  • Sound recordings. Recordings of music, sounds, or words.
  • Architectural works. Building designs, whether in the form of architectural plans, drawings, or the constructed building itself.

A copyright owner (like, say, an author) has five exclusive rights in the copyrighted work:

  • Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form.
  • Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a “derivative work.”
  • Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending.
  • Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered “performance.”
  • Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered “display.”

You can use something that is under copyright, without permission from the copyright owner, within limits. The “fair use” of a copyrighted work, including use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Copyright owners are, by law, deemed to consent to fair use of their works by others. “Fair use” is not defined in the copyright law. Instead, whether a use is fair use is determined by balancing several factors. These factors are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the potential market for, or value of, the copyrighted work. There's a lot of arguing that goes on about whether this use or that use is fair use of copyrighted materials, in and out of court.

Bottom line - if you write something, you hold the copyright to it. It doesn't matter where you've published it, or in what format (electronic or text), or even if it's just a bunch of scribbles in a notebook.

Copyright is automatic and implicit and applies to anyone who's created anything that fits the definitions of copyrightable work.

No one is allowed to distribute, change, publish, etc. without permission of the person holding the copyright. There's a fairly big movement on the Web to remind people that just because it's online doesn't mean it's free for the taking.

So, how do you find out if someone is using your material for their own gain, be it their reputation or their pocketbook? Usually Google is a pretty good search engine to use when looking for copyright violators. Plug in keywords - mine were “Twinkie Pagan” and “TwinkiePagan” - and see what comes up. You might be surprised. Google searches everything, including the archives of Yahoo! mailing lists. Look for the filename of your .jpg or .gif with the extension, if you're searching for graphics works. Do it regularly - maybe once a month or so. Also let people know that you're interested in web pages, fiction, essays or graphics that bear a startling resemblence to your own. Ways to tell it's yours and not just a coincidence? Embed a copyright statement into the HTML code of your page - a lot of people don't bother to check the code for things like “copyright whoever whatever date, unauthorized use prohibited” tucked in before the “body” tag. There's a way to embed copyright statements into graphics, too, but I'm not an artist and don't know how to do that. Keep copies of your rough drafts - with dates on them.

You found a copy of your work up on someone else's site, attributed incorrectly or falsely. What do you do? Send a “cease and desist” letter. I'll put up an example that my husband wrote for me before too long. Essentially, it's a letter that says “cut it OUT” in threatening legal language and gives them a time frame to take down the plagiarized material and post a retraction and compensate you for using your work without your permission, especially if they were financially benefitting from your work. You might not (and probably will not) get any money, but most people who get a “cease and desist” letter do not know enough about copyright law to know that there's virtually no way you can follow up legally without a ten ton law firm on your side and a budget the side of the gross national product of Albania. So they take the offensive material down. Poof. No more problem. Um. Except for the moral outrage, but that will go away.

This essay will be updated as time and resources permit. If you've got specific questions, let me know. I'm not a lawyer and CANNOT give legal advice, but further information and links are available upon request.

This essay by bkwyrm@bkwyrm.net, with the assistance of the FindLaw web page, a variety of legal reference books, two law librarians, a friendly copyright attorney, and her husband, who practices Estate and Probate Law.

3/16/2003 2:11:25 PM