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30 Jul

Copyright AB©s

By Cathleen A. Dettmann

July 30, 2012

We’ve all seen it: That often miniscule little “©” lurking in the bottom corner of pictures, articles, photographs and other types of creative media. Whether in print or electronic form, that symbol always means the same thing – this piece of work is copyrighted, and all potential copycats must beware.

To be sure, virtually every person reading this article has likely violated someone’s copyright in one way or another, usually without even being aware that they are doing so. The popularity of Al Gore’s internet has brought the issue of “innocent infringements” into particularly sharp focus. Once uploaded to the digital airwaves, any image or written text can be shared millions of times, without the consent of the author. Sure, some authors revel in the publicity that viral internet popularity can bring, but not all of them do. And, as some copiers find out much to their chagrin, the simple act of posting something on one’s website or Facebook wall can bring down the hammer of the federal Copyright Act in full force; at times with calamitous legal and financial consequences.

Copyright can often be an amorphous concept for non-lawyers and lawyers alike, but there are some consistent ground rules which can at least help demystify the basics. This article is meant to provide a broad overview of the concepts at play in copyright law – not to provide a detailed analysis of any particular situation.

First, who can get a copyright and for what? Copyright protection inures to any person who takes an original creative idea and fixes it into a tangible form or medium of expression. Fortunately, those of us who are not artsy types still have hope – as the Supreme Court duly noted, the “requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.” Feist Publ’ns, Inc. v. Rural Tel. Service Co. Inc., 499 U.S. 340, 345 (1991). Certainly there are ambiguities and complications in determining whether or not something qualifies for copyright protection and these issues will be the subject of future postings.

So, you’ve created something original with the essential, yet minimal, creative spark – do you have to do anything else to achieve copyright protection under the Act; say, register your work with the Federal Copyright Office? The answer, which is likely to surprise many, is “no.” The rights one can obtain under the Act begin at the moment the creative idea is fixed into a tangible medium of expression. Indeed, this act of creation is a powerful one, granting the author of the work the exclusive right to reproduce the work, distribute copies or otherwise perform the work, or to prepare derivative works based upon the original copyrighted work, among other rights. That first right listed – the right to reproduce the work – is often the one which trips up even the most savvy of internet users, but more on that later.

Luckily for everyone employed with the federal Copyright Office, there are still distinct benefits and advantages to obtaining federal copyright registration for your work. In fact, most lawyers would, I’m sure, recommend that anyone wishing to take full advantage of the protections under the Act register their copyrighted works as soon as possible. The primary reason is that a copyright registration provides significant benefits in terms of litigation: A registered copyright is a prerequisite to filing any copyright suit in federal court. Generally speaking, if you register your copyright prior to any infringement (i.e. the unauthorized reproduction or use of the work by someone other than the author), you’ll be able to collect “statutory damages” and attorney fees if you prevail.

Damages in copyright actions are a complicated issue. However, the long and the short of it is that without the ability to collect statutory damages, you’ll have to prove actual damages in terms of quantifying illegal gains by the infringer or your own losses. This is extremely difficult to prove, and you can sidestep these difficult proofs by electing to receive statutory damages. The judge gets to decide how much is awarded in statutory damages, although the statutes provide a range of $750.00 to $150,000 per infringement. Additionally, lawsuits are expensive and being able to collect your attorney fees from the losing party goes a long way toward making you “whole” in the end.

So far, we’ve explained the protections afforded to the authors but only hinted at the potential pitfalls for would-be infringers. Let’s bring it full circle. As indicated earlier, the author of a work has the exclusive right to decide when or where that work is reproduced in any form. Practically speaking, this means that when you see someone’s nifty photograph on their own website, and post a copy of it on your Facebook page – well, unless you had the author’s actual permission to do so, you’ve likely just infringed a copyright, my friend. No matter how “innocent” you were (even if you had no idea you were infringing) the action is still punishable under the Act. If the copyright was registered with the Federal Copyright Office before you reposted it on your Facebook page, then a judge could order you to pay tens of thousands of dollars to the author. To be sure, there are areas of grey in copyright liability as well as affirmative defenses such as fair use, joint authorship and implied license, all of which we will address another time.

It probably seems far-fetched that an author would actually sue an innocent user like this, right? Well, by now we’ve all seen and read the news stories about individuals forced to pay record companies hundreds of thousands of dollars for the simple act of downloading a song from the internet. The use of photographs or other images is no different; indeed our firm has defended individuals in lawsuits alleging just this kind of use. Some legal commentators have also pointed out how popular sites like Pinterest are rife with copyright violations and legal hazards for users.

And that little “©” mentioned earlier? Don’t be fooled if it’s not there – the author need not provide actual notice of the copyright in the form of a “©,” or any other form for that matter. Moreover, most website hosts and internet service providers (like Facebook or Pinterest) either put the liability for copyright infringement back on the users, or else are otherwise covered by special rules set forth in the Digital Millennium Copyright Act passed by Congress a few years ago. The DMCA is a unique safe harbor in copyright jurisprudence and doesn’t protect individual infringers from liability.

Given the ease with which entirely innocent people infringe on potentially valuable copyrights every day – particularly with the rapid rise of digital file sharing of all forms on the internet – it is likely that policy makers will need to readdress copyright law as it applies to our new digital world. However, until that happens, the use of copyrighted text and images on the internet (and in print) is strictly a “user beware” scenario and one should always think twice before hitting that “copy” button.

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Cathleen A. Dettmann

About the author

Cathleen is a business attorney and a Senior Associate at the firm; her practice is concentrated on business litigation, including franchise disputes, copyright and trademark issues, business break-ups, non-compete and trade secret litigation as well as general contract disputes.


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