The Copyright topic area includes discussions of traditional copyright, fair use, reverse engineering, and the additions to copyright law made by the the Digital Millennium Copyright Act (DMCA). Under the DMCA topic heading, we discuss the ISP "safe harbor" and its necessary conditions (notice and takedown), as well as the anticircumvention provisions of section 1201.
Related sub-topics:
The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:
(1) the right of reproduction (i.e., copying), (2) the right to create derivative works, (3) the right to distribution, (4) the right to performance, (5) the right to display, and (6) the digital transmission performance right.
The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.
Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.
Infringement regulation protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.
The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
In order for material to be copyrightable, it must be original and must be in a fixed medium.
Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.
The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.
Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark.
Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.
The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."
Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.
A plot synopsis may or may not infringe on a copyright, depending on whether the court finds that the use of original material is fair use. Photographs are protected by the copyright holder's rights to both reproduce and display his work, and this right may be violated by posting those photographs on the Internet.
Copyright vests in a creative work - including literary, musical, dramatic, choreographic, pictorial or graphic, audiovisual, or architectural works, or sound recordings, but not in ideas, at the moment the work is fixed in tangible form.
Copyright grants a variety of rights to the owner of a creative work, which means that the work (and the owner of the rights) is protected from others doing those things without the owner's permission.
"Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Subject to certain 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here.
The federal Copyright Act may be found at http://www.loc.gov/copyright/title17/.
The primary defense to copyright infringement is "fair use." 17 U.S.C.
Under the Copyright Act, penalties for copyright infringement can include:
A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412).
Works are copyrighted as soon as they are "fixed in a tangible medium of expression," but some legal rights and remedies are available only if the work's copyright is registered. To find a copyright registration, you may search copyright records at the Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted.
No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be "original works of authorship" under the Copyright Act. Names may be protected by trademark, in some instances. See the <!--GET FAQLink 6--> FAQ for more information.
In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods
of operation, concepts, principles, or discoveries: they only protect physical
representations. 17
U.S.C.
A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C.
Legal documents such as briefs, contracts, and even cease-and-desist letters written by private attorneys (but not by government lawyers) may be protected by copyright like any other material "fixed in a tangible medium of expression." However, greater fair use defenses may be available to those who copy legal documents. For example, it may be uniquely necessary to use the precise language of the document; the document may have little "creative" input; and its copying may not impact the market for legal services.
Section 1202 of the Copyright Act prohbits unauthorized removal or alteration of copyright management information, which might include a copyright notice.
Many makers of computer software say that their software is licensed, not sold, because the user breaks a "shrinkwrap license" on the box or clicks through an end-user license agreement ("EULA") before using the software. The legal rights of the end user may then be limited by the licensing terms, provided that the end user has been contractually bound to those terms. EULAs may attempt to prohibit modification, reverse engineering, or resale. Courts are still working out the tensions between software licensing and copyright's first sale and fair use rights.
Many people confuse the two, but copyright infringement and plagiarism are different concepts. Plagiarism occurs when a dishonest writer, or some other person, copies another's words or ideas without attributing them to the true author. Black's Law Dictionary 1170 (7th ed.1999). With plagiarism, it does not matter whether the words are copyrighted .
Yes. Works produced by the US government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government. Private contractors working for the government, however, can license or transfer copyrights to the US government, and those copyrights remain enforceable.
Creative Commons licenses provide a standard way for authors to declare their works "some rights reserved" (instead of "all rights"). If the source you're quoting has a Creative Commons license or public domain dedication, you may have extra rights to use the content. Licenses don't trump fair use, but if you want to do more than fair use allows, look at the terms of the license to see what it permits and what, if anything, it requires you to do in return. The attribution license, for example, lets you copy, distribute, and display a work so long as you name the original author. Share-alike lets you make derivative works so long as you use the same license for your re-mix. A work in the public domain is no longer under copyright, so you can use as much as you want in any way you like.
First sale is a doctrine in copyright law saying the owner of a particular copy of a copyrighted work has the right to sell, lend, or transfer that copy. In other words, the copyright holder's rights over a physical copy of a work end with the "first sale." The doctrine is codified in the Copyright Act, 17 U.S.C. 109.
No. While you are free to report the facts and ideas embodied in another person's article or web page, you shouldn't copy the entire page unless you can assert a fair use defense. Copyright does not protect facts or ideas, but it can protect the particular way someone has expressed them.
A valid license is an agreement where the copyright owner retains his or her ownership of the rights involved, but allows a third party to exercise some or all of those rights without fear of a copyright infringement suit. A license is preferred over an assignment of rights where the copyright holder wishes to maintain some ownership over the rights, or wishes to exercise continuing control over how the third party uses the copyright holder's rights.
No. Copyright protects only expression, not ideas. So while copyright might protect one author's description of a bookkeeping method, it does not prevent others from using the method or copying the forms needed to use it.
This "idea/expression dichotomy" is spelled out in part in the Copyright Act's Section 102(b):
"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
The Universal Copyright Convention (UCC), adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention.
The UCC was developed by United Nations Educational, Scientific and Cultural Organization as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection.
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886. It was developed at the instigation of Victor Hugo, and was thus influenced by the French "right of the author" (droit d'auteur), which contrasts with the Anglo-Saxon concept of "copyright", which has only been concerned with economic protection.
The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations. WIPO was created in 1967 with the stated purpose of encouraging creative activity and promoting the protection of intellectual property throughout the world.
A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and useful or industrially applicable.
"Proprietary" indicates that a party, or proprietor, exercises private ownership, control or use over an item of property, usually to the exclusion of other parties.
Where a party, holds or claims proprietary interests in relation to certain types of property (eg. a creative literary work, or software), that property may also be the subject of intellectual property law (eg. copyright or patents).
In a civil lawsuit, the victim brings a case for money damages against the offender or a third party for causing physical or emotional injuries. Regardless of the outcome of any criminal prosecution, or even if there was no prosecution, crime victims can file civil lawsuits against offenders and other responsible parties. The person who starts the lawsuit is called the plaintiff, and the person or entity against whom the case is brought is called the defendant. Unlike a criminal case, in which the central question is whether the offender is guilty of the crime, in a civil lawsuit, the question is whether an offender (or a third party) is responsible for the injuries suffered
In a civil suit, unlike a criminal prosecution, the plaintiff is responsible for the cost of litigation. Most attorneys handle victim cases on a contingency basis, which means that the attorney fee is deducted from the final award. This allows individuals to have access to the civil justice system without the need to finance the case themselves. If the case is not successful, the victim usually pays nothing. In a civil suit, the attorney directly represents the victim.
A criminal prosecution is a legal action brought by the state against an individual or group of individuals for violating state criminal laws.
Screen shots or screen dumps are still images taken from computer programs. Screen shots are often used in training materials to explain how to use a computer program. Screen shots are protected by copyright law if the original work is protected. This is due to the fact that screenshots are viewed as derivative works.
The US Copyright Act of 1976, Section 101, says:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."
Perjury is the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. Perjury is a crime because the witness has sworn to tell the truth and, for the credibility of the court, witness testimony must be relied on as being truthful. The rules for perjury apply when a person has made a statement under penalty of perjury, even if the person has not been sworn or affirmed as a witness before an appropriate official.
Commercial reproduction is reproduction of multiple copies of copyrighted materials, in whole or in part, for the purposes of commercial redistribution. The permission granting process of copyrighted materials helps ensure individuals/organizations wishing to reproduce such materials for commercial purposes have access to the most accurate, up-to-date versions.
A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) (17 U.S.C. 411 and 412)
A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). (17 U.S.C. 504)
A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) (17 U.S.C. 411 and 412)
A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). (17 U.S.C. 504)
No. While you are free to report the facts and ideas embodied in another person's article or web page, you shouldn't copy the entire page unless you can assert a fair use defense. Copyright does not protect facts or ideas, but it can protect the particular way someone has expressed them.
You get copyright automatically when you create a work and "fix" or record it. Registration with the Copyright Office is not a prerequisite, but it can give you additional protection: you can only get statutory damages for infringement of a registered copyright. A U.S. author must also register before filing a copyright lawsuit.
Unlicensed use or distribution of copyrighted works is illegal and may be considered a criminal act. Copyright law grants the exclusive right to use, copy, distribute, display, and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work.
Most governments recognize a bundle of exclusive rights in relation to works of authorship, inventions, and identifications of origin. These rights are sometimes spoken of under the umbrella term "intellectual property". An example is copyright, which grants a copyright holder a negative right to exclude others from exploiting his or her artistic or creative work. The position is generally similar with patents and trademarks. Exclusive rights arise from a grant of patent or registration of a trademark, while in other cases such rights may arise through use (eg. copyright or common-law trademark).
Holding an intellectual property right generally means that the rights holder can maintain certain controls in relation to the subject matter in which the IP right subsists. For example, a person who buys a copy of a computer program which is subject to copyright may use the software for personal use, but will probably be prohibited from creating or distributing copies of that software, subject to certain exceptions such as fair use or fair dealing, which vary widely from jurisdiction to jurisdiction.
One has misappropriated copyrighted material if he or she has acquired, disclosed, or used the material without the permission/license from the holder of the copyrighted material, where such activities were done through improper means or in breach of an obligation of confidentiality or non-use.
No. Copyright protects only original expression, not discovered facts. Creative selection and arrangement of facts is protected, but you can take the basic facts and rearrange them without infringing copyright. Thus the publishers of a telephone book cannot sue an online phone book publisher for copyright infringement, even if it took the first publishers considerable effort to collect the listings.
As defined by 15 USC section 506, criminal copyright infringement occurs if a person willfully infringes upon a copyright and it was done under any of the following circumstances: 1) for commercial advantage or private financial gain; 2) where the copies have a retail value of at least $1,000 and were made within a 180-day period; or 3) by distributing copyrighted work where the infringer knew or should have known the work was intended for public distribution. If found guilty, the infringer can be imprisoned for up to 10 years, depending on the type of infringement
As defined by 15 USC section 506, criminal copyright infringement occurs if a person willfully infringes upon a copyright and it was done under any of the following circumstances: 1) for commercial advantage or private financial gain; 2) where the copies have a retail value of at least $1,000 and were made within a 180-day period; or 3) by distributing copyrighted work where the infringer knew or should have known the work was intended for public distribution. If found guilty, the infringer can be imprisoned for up to 10 years, depending on the type of infringement
A copyright notice is placed on copies of a work by the owner in order to inform the public that the owner - an individual or business - holds copyright in the work. The public is then "on notice" that the work is copyrighted and unauthorized copying may infringe the copyright owner's rights.
Generally, a proper copyright notice must contain: 1. The symbol ©, the word “Copyright”, or the abbreviation “Copr.” 2. The year of first publication of the work. 3. The name of the copyright owner, a recognizable abbreviation of the copyright owner's name, or a generally known alternative designation of the owner.
The notice must also be placed on copies of a work so that they give reasonable notice of the claim of copyright.
The legal effect of proper copyright notice is to prevent a defendant in a copyright infringement suit to raise a defense based on innocent infringement. Simply, it prevents a defendant from saying "I had no idea that this work was copyrighted and I should not have to pay damages for willful infringement."
The specific notice provisions are set forth in 17 U.S.C. § 401-406.
Monetary damages are a category of "Special damages." They are awards which compensate plaintiffs for monetary losses. These may be actual losses (real lost sales) or reasonably predictable losses.
Willful infringement occurs when the infringer knows that the material they are copying is protected by copyright. In many cases, the penalties for copyright infringement are greater if the infringement is willful.
The public domain refers to materials that are not protected under copyright law. Prior to 1978, a work could fall into the public domain if it was not registered or if it did not have proper notice. After 1978, there was no registration or notice requirement and thus a work would not automatically fall into the public domain.
A work may also fall into the public domain if its copyright expires. Under the 1909 Copyright Act, a work received protection for a 28 year period (works between 1964-1977 receive automatic renewal), with an option to renew the work for an additional 28 years (because of the Copyright Extension Act, a work created before 1978 can have protection for 95 years after publication). For works created after 1978, the copyright holder lasts for the life of the author + 70 years (the copyright holder's heirs retain the intellectual property rights).
So, you should not assume a work is in the public domain. You should first check with the Copyright Office.
Trade dress refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. The “look and feel” of a product or its packaging.
Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.
Speech that involves a public figure--such as a corporation--is only defamatory if it is false and said with "actual malice", meaning with knowledge of the statement's falsity or in reckless disregard for the truth. It also must be factual rather than an expression of an opinion. In the United States, because of our strong free speech protections, it is extremely difficult to prove defamation of a public figure.
Truth is an absolute defense to a claim of defamation, but of course, the truth can be difficult and expensive to prove.
Opinions are not defamatory, but the issue is whether a reasonable reader or listener could understand the statement in question as asserting a statement of verifiable fact, not whether it is labeled as "opinion."
In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]
A proper counter-notice must contain the following information:
If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]