Saturday, October 22, 2005

Copyright FAQ & Myths

We'll get to the subject of screenplay structure in just a bit, but it's time to take a pause to insert some common sense and a little self-protection into the old gray matter. It's absolutely astonishing what writers don't know about the subject of copyright! Who'da thunk it?

I've seen self-proclaimed "professional" writers make the most outlandish claims about copyright. It's usually self-serving so as to facilitate their own abuse of someone else's copyright. But, sometimes, the misinformation is dispensed out of pure ignorance.

One self-proclaimed "professional" thought to allow the copying and publishing on her failing messageboard the words of other writers, stripping off author names and links back to any original source so as to create the false impression that she and her buddies were the original authors of the purloined words. And she claims to be employed as a writer by a major New York newspaper... all the while, engaging in wholesale stealing of articles from other newspapers' websites.

Well, that didn't last. You don't fuck with the Washington Post and expect to get away with it, my dears. And now she's forced to hide in shame behind a not-so-secret gateway and that has effectively isolated her from the rest of cyberspace. Which is at it should be.

But, it was truly amazing and amusing and maybe even a little scary how ignorant she and others of her ilk turned out to be re: all things copyright. And that has become my impetus for publishing here (WITH FULL CONSENT OF THE ORIGINAL SOURCES) a few truths on that very subject. Shall we begin?

QUOTE: "Copyright in the United States is legal protection that is given to literary, dramatic, musical, artistic, and certain other intellectual works created by "authors" and fixed in a tangible medium, whether such works are published or unpublished."

QUOTE: "The Copyright Act of 1976 generally gives the owner of copyright the exclusive right to do and to authorize others to do the following things with the work: to reproduce it (make copies), to prepare derivative works based on the work (like a movie based on a story), to distribute copies to the public (like selling your photographs), to perform the copyrighted work publicly (like playing recorded music in bars or nightclubs of a certain size), to display the copyrighted work publicly (unveil a statue or sculpture), and with respect to sound recordings, to perform the work publicly by means of a digital audio transmission (certain types of webcasting)."

QUOTE: "The use of words and text from pre-existing sources, such as articles, books and other published and unpublished written works, images (including photographs, graphic designs, videos and reproductions of fine art) and music as integrated into a web page or viewed while surfing will be governed by the copyright basics applicable to each such area. As a result, neither webmasters nor surfers can exercise any of the exclusive rights of the author or owner of the copyrighted words, images or music without the author or owner's consent."

QUOTE: "Similarly, the fact that text or material is available on line does not mean that it can be copied and used by web masters or surfers without an appropriate agreement. Even if the text appears without a copyright notice, it may nonetheless be protected and cannot be used unless properly licensed."

QUOTE: "Copyright notice is no longer a prerequisite to copyright protection in this country, but it does put U.S. visitors on notice that you claim exclusive rights in the expressive content of your page."

Those last two quotes seem to be especially difficult concepts for the "gang that couldn't write straight." Or anything of their own.


And now for some myths about copyright...


INTERNET MYTH
"If someone posts something on the Internet -- text, a picture or icon, a sound or video clip -- it's up for grabs or 'in the public domain', so I can take it and use it however I want."

THE FACTS
WRONG!!! In fact, publication on the Web has become almost as common as, and from a legal standpoint is really no different from, publication in the traditional print or broadcast formats. Most newspapers, magazines, television networks and other news and entertainment organizations have Web sites that compliment their more traditional TV, radio or print publishing activities. In fact, some commercial magazines and news sources -- such as Salon and Slate -- are published exclusively on the Web. Other businesses, like record labels, use the Web essentially as a means of interactive advertising, offering such things as exclusive photos and sound or video clips of their artists that the old-fashioned record store display just can't provide. All of these "Web publishers" are just as interested in commercially exploiting their intellectual property, and in preventing its unauthorized or undesired use by others, as are the traditional print and television media. They're also just as entitled to do so under the copyright laws.


INTERNET MYTH
"If something doesn't have a copyright notice or something containing the © symbol, it must not be copyrighted, so I can take it and use it however I want."

THE FACTS: Also not true, at least not anymore. While such a notice used to be required when a work was published, since 1989 a work is deemed immediately and automatically protected by copyright as soon as it is "fixed in any tangible medium of expression," -- that is, as soon as it's committed to paper, film, audiotape, videotape, computer file, etc., and is no longer just an idea in its creator's head. The fact that it is subsequently published or displayed without a copyright notice doesn't change that fact one bit. So, just because you don't see a copyright symbol doesn't mean the graphic or audio file you'd like to copy and use on your Web page isn't protected by copyright; to the contrary, and particularly if it was created within the last 10 years, it almost certainly is.


INTERNET MYTH
"But I'm not charging people anything to view my Web site, and I'm not selling anything; doesn't that mean I can use anything I want?"

THE FACTS:
Absolutely not. Whether you're using someone else's copyrighted work for a commercial or profit-making purpose is only one of numerous circumstances that are required to be considered in the legal test for determining whether the use is "fair." For example, just because you're not charging visitors to your Web site to download an audio file or view a photograph doesn't mean that you're not depriving the owner of that work of an opportunity to do so, and thus cutting in on his potential profits.


An excellent article about the copyright owned by persons who write newsgroup (forum, messageboard, etc.) posts can be found HERE: http://benedict.com/digital/Internet/Usenet.aspx
It is indeed a violation of copyright to copy or cut and paste in total a message from one messageboard or group to a different one unless you are the original author of that same post or the owner of that forum or messageboard (you own all content of your messageboard or forum or group).


Online Infringement
The Copyright law was recently amended to help owners of copyright to get their works removed from infringing sites on the Internet, by requiring host OSPs to institute a no-infringement policy, provide an accessible agent to receive claims of infringement committed by its subscribers, and to remove the infringing material expeditiously after receiving notice, among other things. If the OSPs follow these rules, they can escape liability to the copyright owner. The infringing party, of course, remains fully liable for his or her acts of infringement.
The Copyright Office website (http://www.loc.gov.copyright/) has a list of OSP agents and instructions for copyright owners whose works are being infringed online.


Copyright Exists Automatically Upon Creation
Beyond creating a copyrightable work, an author need do little else to gain copyright protection. Neither publication, nor registration with the Copyright Office, is required today to secure copyright.


What is copyright infringement?
Copyright infringement is the exploitation of any of the rights of copyright -- the right to copy, distribute, display, perform, and make derivative works based on the protected work -- by another without proper permission.


What are the penalties for copyright infringement?
A copyright owner possesses the exclusive right to reproduce and distribute the work in copies, to perform and display the work, and to produce derivative works based on the work. Anyone who infringes these exclusive rights without the copyright owner's permission faces severe civil (and possibly criminal) penalties: he can be judicially restrained from further use of the work, unauthorized copies could be impounded or destroyed, and the infringer could be liable for actual damages, profits earned from the unauthorized use of the copyright owner's work, and, if the copyright is registered, for statutory damages and attorneys fees.


Can I be sued for using somebody else's work?
If you copy, display, distribute or prepare a derivative work based on another's copyrighted work without his or her permission, the owner may be entitled to bring an infringement action against you.



Information obtained from Friends of Active Copyright Education (FA©E), an initiative of the Copyright Society of the U.S.A., at:http://www.face-copyright.org/.
From the Legal-Database Website (http://www.legal-database.com/copyright-laws-internet-law.htm): "Works put on the Internet are considered “published” and therefore qualify for copyright protection. A work put on the Internet is not considered public domain simply because it was posted on the Internet and free for anyone to download and copy. You need permission from the site owner to publish any materials"
I really, really strongly urge everyone to visit this site, especially if you plan on using the internet in any fashion. The link to the internet section of this website is HERE: http://www.csusa.org/face/softint/index.htm
Feel free to leave comments and discuss, but I am NOT a lawyer and cannot dispense legal advice. If you have a legal question, I recommend you visit one of the above linked websites or pay a visit to FindLaw.com.
Oh. Yeah. If there are any lingering questions, here's a nifty little volume that might come in handy:

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