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     The Sincerest Form Of Flattery

I received an email the other day from an online friend alerting me to the fact that someone had COPIED one of the pages of my website and was using it, virtually verbatim, at theirs.  It was my first personal experience of copyright infringement. How flattering, I thought! I imagine though that when it happens a few more times it will begin feeling decidedly less flattering and decidedly more irritating.  We are talking about THEFT, after all.

Because we’re dealing with a technical legal subject here, I am not giving you legal ADVICE in this article.  This is simply the result of my own research and you use or ignore the information I’ve included here at your peril.  I neither assume nor accept any responsibility for what you do with this information.

In a nutshell, copyright is legal protection for the authors of ORIGINAL literary, dramatic, musical, artistic and intellectual works -- both published and unpublished works. Only the copyright owner has the right to reproduce, sell, distribute and perform the work publicly or to authorize others to do so.

Generally, only the author of the work can claim copyright to it -- with a few exceptions, however. If the work is “work made for hire” -- prepared by an employee or contractor within the scope of his or her employment or contract -- the EMPLOYER and not the employee is the “author”.

Copyright attaches to original works fixed in a TANGIBLE form of expression. So, for example, a dance routine created by a choreographer and recorded in writing can be copyrighted -- were the choreographer not to record the routine and just kept the it in his or her head, the routine would not be able to be copyrighted.

Other types of works that can’t be copyrighted are:
  • titles, names, short phrases, SLOGANS and the like (trademark protection may be available)

  • IDEAS (copyright protects only the tangible expression of the idea, not the idea itself)

  • procedures, methods, SYSTEMS, processes, concepts, principles etc.

  • works consisting entirely of information that is COMMON property and containing no original authorship such as calendars and facts of the world.

Copyright does not require REGISTRATION or publication to come into existence. Copyright attaches automatically once a work is created -- meaning when the work is fixed in a tangible form of expression for the first time. Under the copyright legislation, PUBLICATION occurs when copies are distributed to the public by way of sale, other transfer of ownership, rental, lease or lending. Note that a mere public performance or display of work does not, of itself, constitute publication. Once something is published, it is mandatory to deposit two copies in the copyright OFFICE within three months of publication in the United States for use in the Library of Congress. If you fail to do so, you may be liable for a fine of $250. Failure to deposit does not, however, affect whether your work has copyright protection.

There are several advantages to registering your copyright. First, it constitutes a public record of your claim to copyright in the subject work. Second, registration is a prerequisite to an entitlement to sue for an INFRINGEMENT. Third, registration allows the owner to record registration with the United States Customs Service for protection against the importation of infringing copies of your work. Fourth, if you registration allows you to recover MONETARY damages in cases of infringement. For detailed information about how to go about registering your copyright, visit the United States Copyright Office at lcweb.loc.gov/copyright/.

Although a formal copyright notice is not required, it can be useful. First, it may make would-be thieves at least think twice before stealing your work. Second, if a copyright notice appeared on work in which your copyright was infringed, then the offender can’t claim INNOCENT infringement in mitigation of damages. Third, it makes it easier for someone to track you down and ask for permission to use your work!

For work created after January 1, 1978, the work is automatically protected from creation until 70 YEARS after the death of the author. In the case of joint works, the copyright extends to 70 years after the death of the surviving author. In the case of works made for hire and anonymous or pseudonymous works, copyright endures for 95 years from publication or 120 years from creation, whichever is the earlier.

Copyright is a personal property right and can therefore be transferred. A transfer of an EXCLUSIVE right will not be valid, however, unless it's in writing and signed by the copyright owner or an authorized agent. A transfer of a NON-EXCLUSIVE right need not be in writing. As copyright is a personal property right, it can be bequeathed by will or pass by operation of the law governing intestate succession.

Unless fair use applies, you will violate the copyright if you use all or any part of their work in your work without prior permission. It is not an infringement of copyright, however, to use short QUOTATIONS from a work for the purposes of criticism, comment, teaching, scholarship or research. Any quotations used must clearly identify the name of the author and the source of the quotation. Note, however, that if your use is not fair use, then merely giving credit to the author of the work won’t protect you.

In general, the factors to be considered include the purpose and character of the use. If you stand to make a PROFIT on the use, the less likely it is that your use will be considered “fair use”. You must also take into account the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for and value of the copyrighted work. If you’re creating something NEW rather than copying work, and don’t COMPETE with your source, your chances of falling within the “fair use” defense are relatively better.

It’s more likely than not that one day you will have to grapple with the unpleasant reality that someone has stolen your work. Depending on the nature and extent of the infringement, you may be forced to take legal action. If you haven’t registered your copyright you won’t be able to do that. But more importantly, your work has VALUE. You’ve made an investment in terms of your time, effort and talent. You wouldn’t leave your front door open for thieves to walk in and steal your stereo. So get your copyright registered and close the front door to those who would help themselves to what you have worked so hard to create. 


Elena Fawkner is editor of A Home-Based Business Online ... practical ideas, resources and strategies for your home-based or online business. Visit her website at www.ahbbo.com.

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