the copyright rules

(NOTE: this article is not legal advice. If you're unsure of something or need legal advice then it is best to contact an attorney.)

If you're an illustrator or writer and are not sure whether you can use an illustration or passage of text, then this article is for you! If you are afraid that your work will get stolen, then this article is also for you!

Unfortunately, copyright law is not cut and dried. Many of it falls into the gray area and would probably take a judge to give you a definite "yes" or "no" answer...or rather rule in favor or against you. That's one of the problems when dealing with copyright issues and that's why you need to be CAREFUL!

A good way to become versed in copyright law and to better understand its limits, i.e: what you can and cannot do, is to read about some court cases, follow the judge's decision making process, and then extract your own findings. A lot of copyright law is common sense, once you wade through the legalese.

I've heard many writers and artists ask questions such as these:

"Should I register my illustration with the copyright office?"

"Should I send my manuscript to myself via certified mail, so no one else will steal my words?"

"How can I stop someone from stealing my artwork if I post it on the web?"

"Do I have to affix a copyright notice to my work?"

"I'm illustrating a book about monkeys...can I copy a picture I got from the national geographic?"

"Can I quote from a book or article?"

"Can I use a piece of a photograph or painting in my own artwork?"

I'll attempt to answer the above questions and more, but prepare to be bored! Copyright law isn't very exciting, but it's necessary, so please read on!

First, let's deal with the basics––what works are protected by copyright law and which ones aren't:

THE FAIR USE DOCTRINE: Under the fair use doctrine, you may quote a piece of text or even print part of a painting or photograph. There are no set rules as to how much text you can quote or how much of a piece of artwork you can reproduce. Generally, if you're writing a nonfiction book or article, you may quote a sentence or two (perhaps more) or reproduce part of a painting, if it's for "scholarly" use, such as for educational purposes, news reporting, criticism, comment, and research. Certain parodies are also considered "fair use." You may even be able to reproduce a whole painting if say in reality, the painting is in color, and you reproduce it in black and white. You CANNOT reproduce a work, or even part of it, if it's for commercial use such as advertising. That will most likely be in violation of copyright law.

Below are the four factors the copyright office uses in determining "fair use," as taken from the U.S Copyright website:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The text goes on to say: "The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

To read the entire passage, go to:www.copyright.gov/fls/fl102.html

The easy stuff––what copyright law is TODAY: Anything you create today is automatically protected under copyright law. There is no need to officially inform the copyright office. You are also not required to post a copyright notice on your work for it to be protected. Whether your work is published or just hanging on a wall in your home, it's yours and you own the copyright to it.

The rule today is: Life plus 70 years. So that's the life of the artist or writer plus 70 years after his or her death. If the work is anonymous, then it's 95 years from the publication date or 120 years from the day it was created––whichever ends first.

Beware that different rules apply for works first created outside the United States.

So far, that's pretty easy to figure out, right? But inevitably, a writer or artist may at some point in time want to either quote a large passage of text, use a photograph in a collage, or reprint photographs for a book.... So how do you determine whether that work is in the public domain?

Below is the "don't take my word for it..." explanation of it all; followed by an easy "take my word for it" guide.

For anything created in the present day, the above rules apply, but what about before then?

Now to the tricky stuff:

1922 and before: Anything created in the U.S on or before 1922 is now in the public domain. This is so because a work was allowed 28 years from its publication. The work was allowed to be renewed for another 28 year period if the proper paperwork was filled out on a timely basis. But again, all copyright projection has expired for such works.

Once a work is in the public domain, it stays there. Although a work may be published later, on its own or as part of a compilation, that does not take the work out of the public domain. Sometimes you will see a copyright notice with several dates attached, such as: ©2003, 2004 - that means a revision has been made. The copyright owner is simply protecting the new work added. Also, if you see that a book has been published in say, 1922 and again in 1925, and the second printing has a new copyright attached, that does not mean that the second printing extends the first version's copyright protection. The book published in 1922 is in the public domain. The revised version, or derivative, does NOT extend the older version's copyright.

The Copyright Act of 1909: The owner/creator of a work was allowed one 28 year term of copyright ownership (with proper copyright notice displayed). The owner was allowed to renew the copyright for another 28 year period, if they filled out the proper paperwork. If the renewal was not sought, then any work created between 1923 and 1963 is now in the public domain. Only 20% of the works were renewed.

Renewal term extended: To complicate things more, the 28 renewal term was later extended for another 39 years. So the original 28 year renewal term became a renewal for a total of 67 years. With the first 28 year period, plus the renewal term of 67 years, the work would be protected for a total of 95 years. However, that extenstion does NOT include works before 1923.

The copyright notice before 1978: All work had to display the proper copyright notice. If that notice was absent, the owner of the work would be forfeiting copyright ownership, thus, the work would and is now in the public domain.If a work was part of a compilation, such asin a magazine, one copyright notice at the front of the publication was sufficient to protect all works contained inside.

1964-1977: Works created during this time period enjoyed the benefit of a 67 year renewal term automatically, without having to fill out a renewal application. So that's the initial 28 years, plus the additional 67 which makes for a total of 95 years. This automatic renewal wasn't instated until 1992, by the Sonny Bono Copyright Extension Act.

The Sonny Bono Copyright Extension Act passed in 1998 extended the copyright protection for 20 more years. Now works created between 1923 and 1978 are protected for 95 years. It is important to note that the law in 1998 does not protect works created in 1963 or earlier. If renewal of such works created on those earlier dates was not sought, then they are now in the public domain.

On and after 1978: This is the magic date when copyright law significantly changed: 1978 (Jan 1st) - 1989 (March 1st): In 1976 a new copyright act was created: Works published after 1978 that did NOT display the a copyright notice could still be claimed by the creator, if within five years after publication, the work was registered with the Copyright Office.

 

To recap (since this copyright talk can be mind-boggling!)...

TODAY :

* no copyright notice posted required.

* Work is automatically protected under copyright law from the moment it's created

* Work will be protected by copyright law for life plus 70 years

* anonymous works are 95 years from publication date or 120 from date of creation.

BEFORE 1923 : work published or created in the U.S is in the public domain

1923-1963: the work has a copyright term of 95 years from date of first publication––renewal NOT automatic. If a work created from this period was not renewed then it is in the public domain

1964-1977: 95 years from publication, renewed automatically.

1978 - present: life plus 70 years––if created anonymously: 95 years from pub date or 120 years from date of creation, whichever ends first.

Copyright law for works of hire and co-authored works have different copyright rules as well as some works created outside the united states. Be also aware that different countries have their own set of copyright laws.

Now, to the questions.... These are the types of questions asked often. Unfortunately, copyright law isn't so black and white, so caution is advised. When in doubt, ask a lawyer!

 

I'm going to paint a picture of an elephant but I need reference materials. How much can I copy without getting in trouble?

The first thing to be aware of is this: even though an individual may create a famous photograph of say, the White House ... because the subject matter doesn't change, the photographer of this famous photo in question cannot claim copyright ownership over such an image. Anyone who stands in front of the White House and snaps a shot may very well posses a photo developed with very similar results.

Now let's say that a photographer or painter dyed or painted the White House lawn pink and asked the president to pose while standing on his head. If someone else painted or photographed the same exact thing, or something substantially similar, then there might be a problem! The key element in question is DISTINCTION. And there isn't an exact rule, say if 25% or more of an image is copied, then it's in violation of copyright law. Not so. Someone could copy 5% of an image and it could still be in violation. The important question be answered is: what was that 5% copied? If the 5% was the focus of the image, then the copier may be in trouble.

So now let's get to the image of the elephant. Generally, most elephants look similar enough. No one can sue you for painting an elephant that looks like theirs––2 ears, large snout, big body, etc. IF the elephant is distinctly lit while existing in an unusual or distinctive environment, and there are key elements that make the image original and recognizable, then you have to be careful. If a judge looks at your illustration and can determine that it almost certainly came from the source you copied, then you may be in copyright violation.

But remember the White House example: the White House will always be in the same environment and will always be similarly lit, no matter who photographs or paints it. You can't help but have your work look similar to someone else's work using the same subject matter. In such instances, you are not violating any copyright laws.So if you use a National Geographic photo as a reference, then you will be fine. But if you copy every element of the photograph, then you will not be fine. I recommend getting as MANY photo references as possible and then combining them. Don't refer to any one photograph TOO closely.

As an artist, the best thing you can do is take your own photographs when possible. But we all know that such a scenario isn't always possible. Not everyone has access to a herd of elephants!

You should also be very careful when using pieces of actual photographs. Don't think that plopping the thing in Photoshop, changing the contrast, adding some filtered effects and maybe creating a new background will save you!

Can copyright law protect the title of my latest novel?

No. A title, phrase, or name cannot be protected by copyright law. You can however trademark such things. Just as brandnames like Kleenex can be trademarked, a title can also be trademarked...but only under certain circumstances! If you go to the bookstore, I guarantee you will find at least 20 titles of books all called "Forbidden"––everything from thrillers to romance novels. The title "Forbidden" therefore cannot be trademarked. If your book is part of a series, then you may be able to trademark the series title, such as The Series of Unfortunate Events and Harry Potter. Names generally can't be trademarked either, so don't bet on making the name on your birth certificate a product! However, did you know that Eric Carle has trademarked his name? So under certain circumstances, it can be done. Generally three things apply: 1) time 2) exposure 3) distinction.

Ask yourself this: are certain words associated solely with a certain work? Or are they generic and can be associated with other things? Logically, no smart author would try to use the title or name their character "Peter Rabbit" or "Winnie-the Poo." Those names are protected because they've become so recognizable and have been around for a long time.

A few years ago, two children's titles, both compilations, were published and arrived in stores at almost the exact same time. One was called " You Read to Me, I'll Read to You," and the other was called "You Read to Me & I'll Read to You." Will either author get in trouble? Of course not! That sort of scenario happens in publishing.

Here's another example, that is not so cut and dried. Donald Trump is in persuit to trademark the words "You're fired." Because Trump received national exposure for his words, he may very well win his case. Anyone today, when they hear the words "You're fired," thinks of Trump. Other phrases such as Nike's "Just do it," come to mind. But the important key is: When most Americans here those phrases, what do they think of? But not so fast Trump… other businesses, such as pottery shops, have already staked claim to those words and have been using them for years. Going to the bargaining table may be the only solution to win the words "You're fired."

If you're assure of whether you can use a title or not, check at the U.S trademark office - trademark search

Can I quote something somebody said that I just read in a news article or book?

Maybe yes...but maybe no. Because the words are verbatim and they are not the author's own words, but rather quoted from a third party, then the author of the article or book does not own the rights to the quoted words. The reason? Copyright law protects original material and something quoted by someone else and then printed is not considered original. The author of the interview would perhaps own the particular arrangement of the questions and words, but not the actual quotations. But not so fast! This is where the law gets tricky: If the person quoted gave the author permission to quote them in their article (such as an interview), then the person quoted is the owner of the words printed. They own the copyright. If the words are not quoted verbatim, then the author rather than the speaker, may own the copyright. Dual ownership may also occur, which means that both the interviewer and interviewee will own parts of the interview.

When does someone not own the copyright to their words? Government employees who've made public speeches do not own the copyright to their words. Quotations copied from text in the public domain are free to use. Quotations printed or recorded without the speaker's permission are also free to use (think secretly recorded conversations such as the Linda Tripp vs. Monica Lewinsky case).

I just read a book about a flying cow. Does that mean I can't write a book about a flying cow?

No. Ideas are not copyrightable. Plot is not copyrightable. Neither are fictitious settings. Only a sequence of WORDS can be protected under copyright law. However, a distinctive character can be protected by law. For example, if a story contains a character who happens to be a ten foot tall woman, always wears baseball caps and goes to church every Thursday, while continuously chewing tobacco and traveling with a pink poodle, then her character would perhaps be protected. But there is no definite rule. Basically, the more developed and distinctive the character, the more likely it is that the character would be protected. A cowboy from Texas who wears ten-gallon hats and rides horses will most likely not be protected by copyright law. Some characters can also be protected under trademark laws, such as Spiderman.

A friend of mine just gave me a great plot idea! Do I have to give her credit if I turn it into a book?

Most likely not. Ideas are not copyrightable. Most courts would only rule in your friend's favor if he or she actually wrote down some of their ideas and you copied those sentences verbatim. Someone who does proofreading, corrects spelling and maybe even offers some suggestions to improve your story cannot claim ownership. The key to ownership is INTENT. A work is only collaborative if it was agreed upon when the work was created. If you would like your work to be a collaboration, get it in writing ahead of time!

I'm an artist and I'm worried about posting my artwork on the web... what should I do? Can I stop people from taking it?

Well, there are few HTML tricks or you could stick copyright symbols all over your work.... But I say, why bother? When you post a piece of artwork on the web, remember that the dpi is set at 72––no one can reproduce a work with a low resolution and make it look even halfway decent. My philosophy is this: If someone wants to print out your work to stick on their corkboard, let um'! That's one more fan to add to your fan base. In fact, I recommend putting some wallpaper on your site for people to download onto their desktops. It's a great way to get exposure, and it's free! And if you did ever see your work used in a commercial way, remember that you have the original as proof that you are the copyright owner––it would be an easy win!

Should I include a copyright notice?

Even though it is not required that you, the creator, post a proper copyright notice, it is in your better interest to do so. The reason why is that IF someone did unlawfully use your work, you would be able to win your case more easily and collect more damages if the user could NOT claim ignorance. If they WILLFULLY used your work and you made it CLEAR that your work was copyrighted, then your case would be much easier!

IF you're submitting your manuscript or art sample to a publisher, there is NO need to print a copyright notice. Publishing companies know the business and they will NOT steal your work! Furthermore, you may appear amateurish by doing so.

DO post a notice on your website and any printed material available to the public.

What does a copyright notice look like?

A copyright notice is simply the © symbol––a "c" surrounded by a circle. The word "copyright" is often used, or sometimes the abbreviation "copr." The word or the abbreviation are acceptable in the United States, but if your work is to be circulated outside the states, always use the © symbol, because some foreign countries only recognize it, not solely the words. Be sure to also include the date that your Work was created. Also be sure to include the Author's name. So, write Copyright © by Sally Simms 2004 -- If your Work is unpublished, write "Copyright© by Sally Simms (Work in progress - or - This work is Unpublished)"

How can I find out whether a work is in the public domain or not?

If you can't find out on your own, you can write or call the U.S copyright office and they will do a search for you. The copyright office will charge 75 dollars an hour to locate, retrieve, and reproduce records. It may take up to a month and a half for them to retrieve the records needed.

call:

Reference & Bibliography Section

(202) 707-6850

8:30 a.m. to 5 p.m., Monday through Friday, eastern time

Fax: (202) 252-3485

or go to their website and fill out the form: www.copyright.gov/forms/search_estimate.html

Another option is to hire a private business to search for you. They may take far less time and in some instances, be just as affordable or cheaper than the copyright office.

How can I register my work with the copyright office?

YOu can write to the copyright office at:

Copyright Office Library of Congress

101 Independence Avenue

S.E.Washington D.C. 20559-6000

or go to their website at: www.copyright.gov

They will generally charge 30 dollars for the application

U.S gov. copyright hotline: (202) 707-9100

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REFERENCES

WEBSITES:

U.S. COPYRIGHT OFFICE

www.copyright.gov - search for works under copyright protection - learn the basic copyright facts - how to register your Work

UNITED STATES PATENT AND TRADEMARK OFFICE

www.uspto.gov - learn about patent and trademarks - how to register - search for works under patent and trademark protection

THE PUBLISHING LAW CENTER

www.publaw.com/copy.html - lots of great info about copyright law

www.publaw.com/trade.html lots of great info about trademark law

more websites:

www.efuse.com/Plan/copyright.html - lots of great info about trademark law more great copyright information...plus wonderful illustrations to liven things up!

www.benedict.com - this one talks about some interesting copyright lawsuit cases...everything from the representatives of Barney the big purple dinosaur, who accused over 700 costume shops that sold purple dinosaur costumes of copyright infringement, to movie actor turned governor Aronold Schwarzenegger, who didn't want his image "tarnished."

 

BOOKS TO BUY:

THE CHICAGO MANUAL OF STYLE: this is a great book for writers and publishers and it includes a chapter on copyright law.

THE WRITER'S LEGAL COMPANION: This book also has a section devoted to copyright issues.

THE COPYRIGHT HANDBOOK - How to Protect & Use Written Works: This is the MOST thorough book on copyright you'll ever need! I highly recommend it.