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?.......>>>><

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