Copyrights and Wrongs

You’ve heard about copy-rights and you have this nagging
little feeling that, whatever they are, they might just apply to the things you
and others have created for the Web or the Internet.

But what the heck are those rights and how are you, and
others, supposed to behave around them? Here’s where you can get it, short and
sweet: the answers to those basic, and burning, copyright questions.

The US Digital Millennium Copyright Act

Well, despite the titillating events in the news last fall,
the US Congress produced some important copyright legislation to meet the needs
of an accelerating digital era. In October 1999, the Digital Millennium
Copyright Act was signed into law by president Bill Clinton. It tidily met the
needs of both copyright holders and the general public, which wants access to
copyrighted materials on the Web.

The act:

  • Mandates protection of copyrighted works in digital
    realms

  • Prohibits the circumvention of technological devices
    designed to protect copyrighted works

  • Provides for penalties for criminal infringement of
    digital works on-line

  • Protects service providers from liability in the
    transmission of copyrighted and/or infringed materials

  • Includes a licensing and royalty scheme for the
    transmission of copyrighted music over the Internet.

But if you do not know the first thing about basic copyright
law, this newest piece of copyright legislation is not the place to start with.
So, instead of diving into this end of the copyright pool, I would like to start
at the shallow end and walk you carefully into deeper copyright waters.

What is the US copyright law?

Today’s US copyright laws are rooted in English common law
and the US constitution. The copyright statutes were put into place to encourage
the development of intellectual property in the form of scientific and artistic
products for the public good. Creators of this intellectual property are given
exclusive rights, for limited times, to copy and distribute their works. The
constitutional framework supports the concept that creators may control the use
of and seek payment for their original creations and their derivatives. This
essential concept makes possible the economic structure of the art, publishing,
and software worlds. In other words, you are entitled to make money from your
‘artistic products’.

For the sake of brevity, this article focuses on intellectual
property in the form of artistic creations and will not delve into the
copyrights applying to computer software or other scientific products.

What is protected?

Your
artwork is your intellectual property, and is protected by copyright laws.

Your art (graphics, photos, music, etc.) becomes protected by
copyright when you take it from an idea or concept and make it into something
fixed and tangible. The basic requirements that a work of art must meet to
qualify for copyright protection are:

  • The artwork must be original, and not copied from
    anything else

  • It must show at least a minimum amount of creativity

  • It must be fixed in one of these tangible mediums–in
    its digital state as 1s and 0s; paintings and drawings; original music; your
    original artworks scanned into your computer; artwork you have created using
    bit-mapped or vector drawing, painting, or photo-manipulation programs or
    any combination of these digital media; buttons and graphics, cartoons,
    illustrations, and original writing that you have created for your Web site
    and that reside on your Web site.

The list is extensive, though not complete. If you can see or
touch your artwork, with or without the aid of a machine or device, no matter
what its medium, it qualifies as being fixed in a tangible medium of expression.
And you own it and the copyrights to it.

And that goes for the other guy’s work, too. Buttons and
graphics, cartoons, illustrations, and original writing found on other people’s
Web sites–as well as the myriad other fixed, tangible creations out there in
the ‘real’ world–it’s all owned and copyrighted by someone. Always
assume these things to be copyrighted by their creators. They are not just there
for the taking. If you wouldn’t take it from a gallery without paying for it,
you shouldn’t take it from a Web site.

What, exactly, are my copyrights?…….>>>>

You, as the creator and owner of an original work, are
granted a bundle of rights under the Copyright Act. The rights are exclusive,
which means you, and only you, may use them or allow others to use them. And it
is this exclusivity of copyright that makes it valuable to you.

The rights are separately licensable and enforceable and are
as follows:

  • You have the
    exclusive right to reproduce your copyrighted work. You can make as many
    copies of your original artwork as the market will bear. For example: You
    can use your original artwork as a button and as a background texture on
    your Web site.

  • You have the
    exclusive right to prepare derivative works based on your copyrighted works.
    For example: You can create a button graphic on your site, then alter its
    color and texture for use as other buttons on the site.

  • You have the
    exclusive right to distribute copies of your copyrighted work to the public
    by sale or other transfer of ownership, to prevent others from doing so, and
    to license others to do so. For instance: You can post your work on your Web
    site and you have the legal right to prevent anyone else from posting your
    work on their Web site without your consent and/or payment of a usage fee.

  • You have the
    exclusive right to perform your copyrighted work publicly in the case of
    literary, musical, dramatic, and choreographic works, pantomimes, and motion
    pictures or other audiovisual works. For instance: You may put your
    audiovisual work on-line, where those who log on can play it back for their
    pleasure.

  • You have the
    exclusive right to display your copyrighted work publicly in the case of
    literary, musical, dramatic, and choreographic works, pantomimes, and
    pictorial, graphic, or sculptural works, including individual images of a
    motion picture or other audiovisual work. For instance: You may display your
    work at an art gallery or on the Web.

  • You can sell or
    license any or all of these rights, piecemeal or all together. In fact, it’s
    the usual thing for a graphic designer to specify that a given graphic
    design may be used only for a specified purpose and/or for a limited time.
    You then retain all of your other exclusive copyrights in the work.

How do I get copyright protection?

You get copyright protection automatically on creation. But
to protect yourself even further, it is best to register your work and to add a
copyright notice.

Registration is not necessary, but is highly recommended.

Yes, your work is automatically protected by copyright law,
even if you do not file the official registration forms, but if there is an
infringement, your day in court may be easier and more lucrative if you have
registered your work. To begin with, you can’t carry on a copyright lawsuit if
you haven’t registered. And registration makes it much easier to prove that
you own the copyright you’re claiming, and that it began to apply to the work
on the date you claimed. Finally, you may be eligible for certain kinds of money
damages and for reimbursement of attorney’s fees if you’ve registered.

That said, it’s a snap to register your copyrights on-line.
Just click over to lcweb.loc.gov/copyright/–that’s the US copyright office
Web site–and select CORDS (copyright office electronic registration,
recordation and deposit system). Follow the steps, and you’re assured of
timely registration. Or you can select ‘application forms’ and download the
forms you need to do your registration by regular mail.

Handy hint: You may register a series of graphics for a fee
of $20, so just register every Friday the work you’ve created that week. That
way, no matter what happens, your copyrights will be up-to-date and in place.

A copyright notice is not necessary, but is desirable.

The standard internationally recognized copyright notice
looks like this: © Mary E. Carter 1999

Place the copyright notice where people can readily see it–near
the top of your Web site, for instance. Make it large enough that it can be
easily read and recognized. You may also add the words: “All rights
reserved.”

There are high tech ways to embed copyright information right
into your digital artwork and on-line materials. We will explore these in
another article.

How long do copyrights last?…….>>>><

  • For the most part, your copyrighted work is protected for
    your lifetime plus 50 years. That’s the general rule for work created on
    or after January 1, 1978.

  • Works created before January 1, 1978, are subject to
    different rules. If the owner of one of those older copyrights does
    everything right, the total length of copyright protection is 75 years from
    the date the copyright was obtained.

  • If the work is anonymous or pseudonymous, or was done as
    work made for hire, the protection lasts for a total of 75 years from its
    first publication, or 100 years from its creation, whichever is shorter. The
    exception: If an anonymous or pseudonymous author’s identity is revealed
    during the term of the copyright, the term changes to the life of the author
    plus 50 years.

  • When the term of protection expires, the work goes into
    the public domain, which simply means copyright protection no longer
    applies, and no one needs permission, or must pay anything, for the right to
    use the work. An excellent source of safe, public-domain artwork can be
    found in books published by Dover books.

Can I sell the rights to copy my work?

Yes. Such a sale is called a
‘license’. It means you give someone else the permission to ‘infringe’,
to use your work in ways you agree to and describe, and, generally speaking, for
a stated usage fee.

You may sell all of the rights to copy your work, or some of
the rights, thus restricting the scope of the license in terms of duration,
geographic scope, markets, media, and so forth. For example: You may grant an
on-line magazine the right to use a graphic element on its Web site, but not
sell it the rights to use the graphic on promotional mugs for the site. You
would be paid one usage fee for the use of the graphic element on the site and
could, at some future date, negotiate another usage fee if the magazine wanted
to use the graphic element on its mugs.

And you know what? You may also ‘give’ your copyrights
away. As the creator of intellectual property–artwork–you have the right ‘not’
to charge for the right to copy your work. For instance: You may allow people,
anywhere, anytime, to download copies of your Web site graphics onto their Web
sites for free.

What is not protected?

Certain things are not protected by copyright law, regardless
of whether or not they are fixed in a tangible form. They are: any idea,
procedure, process, system, method of operation, concept, principle, or
discovery, and lists of things such as names, addresses and phone numbers in the
white pages of a phone book and many lists found in on-line databases. But be
careful. If a list has been compiled using a unique methodology, or if the list
is designed to look unique, it may be copyrighted.

The exception

Work made for hire does not belong to its creator. You do not
own your original artwork or the copyright to it when you produce "work
made for hire" (sometimes called "work for hire"). There are only
two ways in which work can be work made for hire and they’re mutually
exclusive. But if either applies, the work is work made for hire and the
copyright in the artwork you create for your employer belongs to your employer,
not you. In fact, the copyright law considers the employer to be the ‘author’–which
means creator–of the work. Here’s how it works:

l You, the creator of the work, are an employee of a
firm or person, and you produce the artwork as part of your job. Generally, you
can tell who is an employee and who is not, but sometimes it gets tricky. If you’re
on the payroll, and you work in the boss’s offices or plant, and your
supervisor can tell you how to do your job, and your job description includes
the creation of artwork, then the work is work made for hire. Depending on your
employer and contract, this could even apply to artwork you create outside your
job or during your own time!

l You, the creator of the work, are a free-lancer, but
your client has come to you with an assignment for the work, and you and your
client both sign a contract that states that your work is "made for
hire," or "for hire," or has words to that effect. It does not
matter that you did the work in your own office or that you pay your own taxes
and health benefits. If you have a written contract or sign a purchase order
that’s also signed by your client and that has words to the effect that your
work is ‘for hire’, then your client owns everything, and you’re not
considered the author/creator of the work.

Are there times when copying is okay?

Yes, there are. There are two sorts of circumstances where
copying is okay. The first involves things that either lack or have lost
copyright protection, such as creations in the public domain, ideas, and facts.
The second involves things that are covered by copyright, but for which some
instances of copying are allowable because of the copyright act’s ‘fair use’
exception.

Mary E Carter
is a partner in California-based graphic design firm
The Black Point Group

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