Chilling Effects Clearinghouse > Copyright > Frequently Asked Questions
Frequently Asked Questions (and Answers) about Copyright
More Frequently Asked Questions about Copyright may be found in FAQs for its subtopics and related topics, linked below:
Piracy or Copyright Infringement
Copyright and Fair Use
Anticircumvention (DMCA)
Derivative Works
DMCA Safe Harbor
Reverse Engineering
and Fan Fiction
Q: What is copyright protection?
Q: What may be copyrighted?
Q: Who may hold a copyright?
Q: What rights are protected by copyright law?
Q: What kinds of things are copyrightable?
Q: What is copyright infringement? Are there any defenses?
Q: Do plot synopses and reproductions of photographs infringe on copyrights?
Q: What is the Digital Millennium Copyright Act?
Q: Where can I find the text of the U.S. Copyright Act?
Q: What are the possible penalties for copyright infringement?
Q: How can I find out whether a work has a registered copyright?
Q: What constitutes copyright infringement?
Q: What defenses are there to copyright infringement?
Q: Does copyright protect words or short phrases?
Q: What's wrong with removing a copyright notice?
Q: What is the difference between plagiarism and copyright infringement?
Q: What is fair use?
Q: How does a Creative Commons license help?
Q: May I freely copy from federal government documents?
Q: Am I free to copy elements of someone else's website verbatim?
Q: Are legal documents copyrightable?
Q: What is the "first sale" doctrine?
Q: Does the first sale doctrine mean I can re-sell computer software?
Q: Am I free to copy the content from someone else's website verbatim?
Q: What is a valid copyright license?
Q: Does copyright protect techniques or methods?
Q: What is the Universal Copyright Convention (UCC)?
Q: What is the Berne Convention for the Protection of Literary and Artistic Works?
Q: What is the World Intellectual Property Organization (?WIPO?)?
Q: What is a patent?
Q: What is "proprietary" material?
Q: What is a civil lawsuit?
Q: what is criminal prosecution?
Q: What are screenshots, and is using them copyright infringement?
Q: What is penalty of perjury?
Q: What is commercial reproduction of copyrighted materials?
Q: What are statutory damages?
Q: What are statutory damages?
Q: What constitutes unlicensed copy and display of copyrighted material?
Q: What is an exclusive right in intellectual property?
Q: What is misappropriation of copyrighted material?
Q: Does copyright protect facts?
Q: Do I need to register my copyright?
Q: Am I free to copy the content from someone else's website verbatim?
Q: What is criminal copyright infringement?
Q: What is criminal copyright infringement?
Q: What is copyright notice?
Q: What are monetary damages?
Q: What is "willful copyright infringement"?
Q: What is in the public domain?
Question: What is copyright protection?
Answer: A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permision of the copyright owner. 17 U.S.C. ?102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. ?201. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. ?106. This right lasts for the life of the author plus seventy years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17 U.S.C. ?302.
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Question: What may be copyrighted?
Answer: In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. ? 102(b). Anything unrecorded is not copyrightable, in as much as it is not "fixed;" for example, dances and improvisations themselves are not copyrightable: only visual recordings or written descriptions of them are. Say I go to a jazz concert and listen to a soloist's improvisation. If I have the musical equivalent of a photgraphic memory, I may be able to reproduce that improvised solo in my own concert on the following night. If that solo exists nowhere but my memory (i.e. the original concert was not recorded) I may play it with impunity, because it is not "fixed" and therefore not copyrightable. But, if the original concert was recorded (e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred from playing my version of the solo. Even a bootleg recording (for which the recorder can be punished under section 1101 of the copyright act) qualifies for copyright protection: a work need not be formally published in order to be "fixed;" it need only be saved in a tangible form. 17 U.S.C. ? 104.
The originality requirement of 17 U.S.C. ?102 demands that a work, in order to be copyrigted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content. For example, a replica of a painting in the public domain may not be novel, but it is copyrightable. An item of sculpture designed to be used as a pipe for smoking marijuana may not be designed for legal ends, but it is copyrightable. A false biography is copyrightable, although it may well also be cause for defamation litigation.
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Question: Who may hold a copyright?
Answer: A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C. ?201(a), (d). In some cases, however, the actual creator is not considered the author of the work for copyright purposes: if a work is created by an employee in the regular course of her employment, it is considered a "work for hire" and the employer, not the employee, is considered the "author" of the work for copyright purposes. For example, in the absence of an agreement to the contrary, a staff writer for a newspaper does not hold the copyrights in her product, the newspaper does. This only applies to works created in the ordinary course of employment: if the same reporter writes a novel in her spare time, she herself owns that copyright.
Certain commissioned works may also be considered works for hire. 17 U.S.C. ?201(b); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire" is defined in 17 U.S.C. ?101.
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Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:
(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.
The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.
Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.
Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.
The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
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Question: What kinds of things are copyrightable?
Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.
Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.
The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.
Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.
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Question: What is copyright infringement? Are there any defenses?
Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.
The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.
(17 U.S.C. 107)
The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."
Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.
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Question: Do plot synopses and reproductions of photographs infringe on copyrights?
Answer: A plot synopsis may or may not infringe on a copyright, depending on whether the court finds that the use of original material is fair use. Photographs are protected by the copyright holder's rights to both reproduce and display his work, and this right may be violated by posting those photographs on the Internet.
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Question: What is the Digital Millennium Copyright Act?
Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor).
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Question: Where can I find the text of the U.S. Copyright Act?
Answer: The federal Copyright Act may be found at
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Question: What are the possible penalties for copyright infringement?
Answer: Under the Copyright Act, penalties for copyright infringement can include:
an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works
impounding or destruction of infringing copies
damages -- either actual damages and the infringer's profits, or statutory damages
costs and attorney's fees
A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412)
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Question: How can I find out whether a work has a registered copyright?
Answer: Works are copyrighted as soon as they are "fixed in a tangible medium of expression," but some legal rights and remedies are available only if the work's copyright is registered. To find a copyright registration, you may search copyright records at the Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted.
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Question: What constitutes copyright infringement?
Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission:
1. reproduce (copy) the work;
2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression);
3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a);
4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here.
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Question: What defenses are there to copyright infringement?
Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. ?107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rightsof the author (17 U.S.C. ?? 106 and 106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner's consent. In deciding whether a copier's actions were fair, judges will consider
1. the purpose and character of the copying (certain types of educational copying is allowed)
2. the nature of the original (originals made for commercial reasons are less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original (copying may be permitted if it is unlikely to cause economic harm the original author).
Examples of activities that may be excused as fair use include: distributing copies of a section of an article in class for educational purposes; providing a quotation in a book review; and imitating a work for the purpose of parody or social commentary.
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Question: Does copyright protect words or short phrases?
Answer: No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be "original works of authorship" under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information.
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Question: What's wrong with removing a copyright notice?
Answer: Section 1202 of the Copyright Act prohbits unauthorized removal or alteration of copyright management information, which might include a copyright notice.
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Question: What is the difference between plagiarism and copyright infringement?
Answer: Many people confuse the two, but copyright infringement and plagiarism are different concepts. Plagiarism occurs when a dishonest writer, or some other person, copies another's words or ideas without attributing them to the true author. Black's Law Dictionary 1170 (7th ed.1999). With plagiarism, it does not matter whether the words are copyrighted ? you still can get into plagiarism trouble by stealing from the public domain. Also, plagiarism is an ethical offense, as opposed to a legal transgression, and the person guilty of plagiarism ?only? suffers the rebuke of the community, whether it be academic or otherwise. Kindergartners Count, Inc. v. DeMoulin, 249 F.Supp.2d 1233, 1251 -1252 (D. Kan., 2003). Still, the lack of judicial remedy does not make plagiarism any less serious of an offense.
Copyright infringement is a legal offense, subject to monetary damages and injunctions imposed by a court of law. It occurs when a person, knowingly or unknowingly, violates the exclusive right of the copyright holder to reproduce, display, perform, distribute, or make a derivative version of a certain work. 17 U.S.C. ? 106. The holder of the legal copyright isn?t necessarily the author of the work and, moreover, the infringer cannot save him/herself from a lawsuit by correctly attributing the work.
Finally, the Copyright Act applies only to expression, and not ideas. 17 U.S.C. ? 102(b). One therefore cannot commit copyright infringement by copying a plot twist or abstract theory, whereas one can plagiarize any of the above.
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Question: What is fair use?
Answer: There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C. ? 107):
The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.
The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.
The amount and substantiality of the portion used. Copying nearly all of a work, or copying its "heart" is less likely to be fair.
The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it's unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn't count as having an "effect on the market for the work" under copyright law.
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Question: How does a Creative Commons license help?
Answer: Creative Commons licenses provide a standard way for authors to declare their works "some rights reserved" (instead of "all rights"). If the source you're quoting has a Creative Commons license or public domain dedication, you may have extra rights to use the content. Licenses don't trump fair use, but if you want to do more than fair use allows, look at the terms of the license to see what it permits and what, if anything, it requires you to do in return. The attribution license, for example, lets you copy, distribute, and display a work so long as you name the original author. Share-alike lets you make derivative works so long as you use the same license for your re-mix. A work in the public domain is no longer under copyright, so you can use as much as you want in any way you like.
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Question: May I freely copy from federal government documents?
Answer: Yes. Works produced by the US government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government. Private contractors working for the government, however, can license or transfer copyrights to the US government, and those copyrights remain enforceable.
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Question: Am I free to copy elements of someone else's website verbatim?
Answer: No. While you are free to report the facts and ideas embodied in another person's article or web page, copyright protects the expression ? the combination of words and structure that expresses the factual information ? but not the facts and ideas themselves.
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Question: Are legal documents copyrightable?
Answer: Legal documents such as briefs, contracts, and even cease-and-desist letters written by private attorneys (but not by government lawyers) may be protected by copyright like any other material "fixed in a tangible medium of expression." However, greater fair use defenses may be available to those who copy legal documents. For example, it may be uniquely necessary to use the precise language of the document; the document may have little "creative" input; and its copying may not impact the market for legal services.
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Question: What is the "first sale" doctrine?
Answer: First sale is a doctrine in copyright law saying the owner of a particular copy of a copyrighted work has the right to sell, lend, or transfer that copy. In other words, the copyright holder's rights over a physical copy of a work end with the "first sale." The doctrine is codified in the Copyright Act, 17 U.S.C. 109.
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Question: Does the first sale doctrine mean I can re-sell computer software?
Answer: Many makers of computer software say that their software is licensed, not sold, because the user breaks a "shrinkwrap license" on the box or clicks through an end-user license agreement ("EULA") before using the software. The legal rights of the end user may then be limited by the licensing terms, provided that the end user has been contractually bound to those terms. EULAs may attemtp to prohibit modification, reverse engineering, or resale. Courts are still working out the tensions between software licensing and copyright's first sale and fair use rights.
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Question: Am I free to copy the content from someone else's website verbatim?
Answer: No. While you are free to report the facts and ideas embodied in another person's article or web page, you shouldn't copy the entire page unless you can assert a fair use defense. Copyright does not protect facts or ideas, but it can protect the particular way someone has expressed them.
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Question: What is a valid copyright license?
Answer: A valid license is an agreement where the copyright owner retains his or her ownership of the rights involved, but allows a third party to exercise some or all of those rights without fear of a copyright infringement suit. A license is preferred over an assignment of rights where the copyright holder wishes to maintain some ownership over the rights, or wishes to exercise continuing control over how the third party uses the copyright holder's rights.
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Question: Does copyright protect techniques or methods?
Answer: No. Copyright protects only expression, not ideas. So while copyright might protect one author's description of a bookkeeping method, it does not prevent others from using the method or copying the forms needed to use it.
This "idea/expression dichotomy" is spelled out in part in the Copyright Act's Section 102(b):
"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
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Question: What is the Universal Copyright Convention (UCC)?
Answer: The Universal Copyright Convention (UCC), adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention.
The UCC was developed by United Nations Educational, Scientific and Cultural Organization as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection.
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Question: What is the Berne Convention for the Protection of Literary and Artistic Works?
Answer: The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886. It was developed at the instigation of Victor Hugo, and was thus influenced by the French "right of the author" (droit d'auteur), which contrasts with the Anglo-Saxon concept of "copyright", which has only been concerned with economic protection.
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Question: What is the World Intellectual Property Organization (?WIPO?)?
Answer: The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations. WIPO was created in 1967 with the stated purpose of encouraging creative activity and promoting the protection of intellectual property throughout the world.
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Question: What is a patent?
Answer: A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and useful or industrially applicable.
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Question: What is "proprietary" material?
Answer: "Proprietary" indicates that a party, or proprietor, exercises private ownership, control or use over an item of property, usually to the exclusion of other parties.
Where a party, holds or claims proprietary interests in relation to certain types of property (eg. a creative literary work, or software), that property may also be the subject of intellectual property law (eg. copyright or patents).
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Question: What is a civil lawsuit?
Answer: In a civil lawsuit, the victim brings a case for money damages against the offender or a third party for causing physical or emotional injuries. Regardless of the outcome of any criminal prosecution, or even if there was no prosecution, crime victims can file civil lawsuits against offenders and other responsible parties. The person who starts the lawsuit is called the plaintiff,and the person or entity against whom the case is brought is called the defendant. Unlike a criminal case, in which the central question is whether the offender is guilty of the crime, in a civil lawsuit, the question is whether an offender or a third party is responsible for the injuries suffered
In a civil suit, unlike a criminal prosecution, the plaintiff is responsible for the cost of litigation. Most attorneys handle victim cases on a contingency basis, which means that the attorney fee is deducted from the final award. This allows individuals to have access to the civil justice system without the need to finance the case themselves. If the case is not successful, the victim usually pays nothing. In a civil suit, the attorney directly represents the victim?s interests and the victim has greater control in case decision-making than in a criminal prosecution. A civil lawsuit is different from the compensation available from the Attorney General's Victim Compensation Division.
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Question: what is criminal prosecution?
Answer: A criminal prosecution is a legal action brought by the state against an individual or group of individuals for violating state criminal laws.
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Question: What are screenshots, and is using them copyright infringement?
Answer: Screen shots or screen dumps are still images taken from computer programs. Screen shots are often used in training materials to explain how to use a computer program. Screen shots are protected by copyright law if the original work is protected. This is due to the fact that screenshots are viewed as derivative works.
The US Copyright Act of 1976, Section 101, says: "A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ?derivative work?." A photograph of a copyrighted item is considered a derivative work in US jurisdiction. US Copyright Act of 1976, Section 106: "(...) (T)he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (...) (2) to prepare derivative works based upon the copyrighted work;"
Therefore, if one uses a screenshot of a copyrighted work without the proper license from the copyright holder, it is copyright infringement. One defense may be fair use, however, depending on the use of the screenshot and the extent to which the copyrighted work is the sole subject of the screenshot. Another possible defense may be that substantial changes were made to the orginal work so that the screenshot is a "new" piece of work.
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Question: What is penalty of perjury?
Answer: Perjury is the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. Perjury is a crime because the witness has sworn to tell the truth and, for the credibility of the court, witness testimony must be relied on as being truthful. The rules for perjury apply when a person has made a statement under penalty of perjury, even if the person has not been sworn or affirmed as a witness before an appropriate official.
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Question: What is commercial reproduction of copyrighted materials?
Answer: Commercial reproduction is reproduction of multiple copies of copyrighted materials, in whole or in part, for the purposes of commercial redistribution. The permission granting process of copyrighted materials helps ensure individuals/organizations wishing to reproduce such materials for commercial purposes have access to the most accurate, up-to-date versions.
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Question: What are statutory damages?
Answer: A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) (17 U.S.C. 411 and 412)
A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). (17 U.S.C. 504) ?Innocent infringement? may lower the damages amount. Typically, a ? notice on a work, precludes an infringer from claiming innocent infringement.
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Question: What are statutory damages?
Answer: A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) (17 U.S.C. 411 and 412)
A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). (17 U.S.C. 504) ?Innocent infringement? may lower the damages amount. Typically, a ? notice on a work, precludes an infringer from claiming innocent infringement.
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Question: What constitutes unlicensed copy and display of copyrighted material?
Answer: Unlicensed use or distribution of copyrighted works is illegal and may be considered a criminal act. Copyright law grants the exclusive right to use, copy, distribute, display and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work.
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Question: What is an exclusive right in intellectual property?
Answer: Most governments recognize a bundle of exclusive rights in relation to works of authorship, inventions, and identifications of origin. These rights are sometimes spoken of under the umbrella term "intellectual property". An example is copyright, which grants a copyright holder a negative right to exclude others from exploiting his or her artistic or creative work. The position is generally similar with patents and trademarks. Exclusive rights arise from a grant of patent or registration of a trademark, while in other cases such rights may arise through use (eg. copyright or common-law trademark).
Holding an intellectual property right generally means that the rights holder can maintain certain controls in relation to the subject matter in which the IP right subsists. For example, a person who buys a copy of a computer program which is subject to copyright may use the software for personal use, but will probably be prohibited from creating or distributing copies of that software, subject to certain exceptions such as fair use or fair dealing, which vary widely from jurisdiction to jurisdiction.
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Question: What is misappropriation of copyrighted material?
Answer: One has misappropriated copyrighted material if he or she has acquired, disclosed, or used the material without the permission/license from the holder of the copyrighted material, where such activities were done through improper means or in breach of an obligation of confidentiality or non-use.
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Question: Does copyright protect facts?
Answer: No. Copyright protects only original expression, not discovered facts. Creative selection and arrangement of facts is protected, but you can take the basic facts and rearrange them without infringing copyright. Thus the publishers of a telephone book cannot sue an online phone book publisher for copyright infringement, even if it took the first publishers considerable effort to collect the listings.
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Question: Do I need to register my copyright?
Answer: You get copyright automatically when you create a work and "fix" or record it. Registration with the Copyright Office is not a prerequisite, but it can give you additional protection: you can only get statutory damages for infringement of a registered copyright. A U.S. author must also register before filing a copyright lawsuit.
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Question: Am I free to copy the content from someone else's website verbatim?
Answer: No. While you are free to report the facts and ideas embodied in another person's article or web page, you shouldn't copy the entire page unless you can assert a fair use defense. Copyright does not protect facts or ideas, but it can protect the particular way someone has expressed them.
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Question: What is criminal copyright infringement?
Answer: As defined by 15 USC section 506, criminal copyright infringement occurs if a person willfully infringes upon a copyright and it was done under any of the following circumstances: 1) for commercial advantage or private financial gain; 2) where the copies have a retail value of at least $1,000 and were made within a 180-day period; or 3) by distributing copyrighted work where the infringer knew or should have known the work was intended for public distribution. If found guilty, the infringer can be imprisoned for up to 10 years, depending on the type of infringement
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Question: What is criminal copyright infringement?
Answer: As defined by 15 USC section 506, criminal copyright infringement occurs if a person willfully infringes upon a copyright and it was done under any of the following circumstances: 1) for commercial advantage or private financial gain; 2) where the copies have a retail value of at least $1,000 and were made within a 180-day period; or 3) by distributing copyrighted work where the infringer knew or should have known the work was intended for public distribution. If found guilty, the infringer can be imprisoned for up to 10 years, depending on the type of infringement
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Question: What is copyright notice?
Answer: A Copyright notice is placed on copies of a work buy the owner in order to inform the public that he holds copyright in the work. The public is then "on notice" that the work is copyrighted and unauthorized copying may infringe the copyright owner's rights.
Generally, a proper copyright notice must contain:
1. The symbol ©, the word “Copyright”, or the abbreviation “Copr.”
2. The year of first publication of the work.
3. The name of the copyright owner, an recognizable abbreviation of the copyright owner's name, or a generally known alternative designation of the owner.
The notice must also be placed on copies of a work so that they give reasonable notice of the claim of copyright.
The legal effect of proper copyright notice is to prevent a defendant in a copyright infringement suit to raise a defense based on innocent infringement. Simply, it prevents a defendant from saying "I had no idea that this work was copyrighted and I should not have to pay damages for willful infringement."
The specific notice provisions are set forth in 17 U.S.C. § 401-406.
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Question: What are monetary damages?
Answer: Monetary damages are a category of "Special damages." They are awards which compensate plaintiffs for monetary losses. These may be actual losses (real lost sales) or reasonably predictable losses.
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Question: What is "willful copyright infringement"?
Answer: Willful infringement occurs when the infringer knows that the material they are copying is protected by copyright. In many cases, the penalties for copyright infringement are greater if the infringement is willful.
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Question: What is in the public domain?
Answer: The public domain refers to materials that are not protected under copyright law. Prior to 1978, a work could fall into the public domain if it was not registered or if it did not have proper notice. After 1978, there was no registration or notice requirement and thus a work would not automatically fall into the public domain.
A work may also fall into the public domain if its copyright expires. Under the 1909 Copyright Act, a work received protection for a 28 year period (works between 1964-1977 receive automatic renewal), with an option to renew the work for an additional 28 years (because of the Copyright Extension Act, a work created before 1978 can have protection for 95 years after publication). For works created after 1978, the copyright holder lasts for the life of the author + 70 years (the copyright holder's heirs retain the intellectual property rights).
So, you should not assume a work is in the public domain. You should first check with the Copyright Office.
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Maintained by USF Law School - IIP Justice Project
Recent C&Ds
Photo DMCA (Copyright) Complaint to Twitter, David R Dickinson , August 7, 2012
Photo DMCA (Copyright) Complaint to Twitter, Liverpool Echo, August 7, 2012
Image DMCA (Copyright) Complaint to Twitter, Dr.. Mike Murdock, August 7, 2012
Photo DMCA (Copyright) Complaint to Twitter, David R Dickinson , August 7, 2012
Poem DMCA (Copyright) Complaint to Twitter, Your True Nature, Inc, August 7, 2012
Photo DMCA (Copyright) Complaint to Twitter, David R Dickinson , August 7, 2012
Photo DMCA (Copyright) Complaint to Twitter, Liverpool Echo, August 7, 2012
Image DMCA (Copyright) Complaint to Twitter, Dr.. Mike Murdock, August 7, 2012
Photo DMCA (Copyright) Complaint to Twitter, David R Dickinson , August 7, 2012
Poem DMCA (Copyright) Complaint to Twitter, Your True Nature, Inc, August 7, 2012
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Related News
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Related Resources
"The Progress of Science and Useful Arts": Why copyright today threatens intellectual freedom, Free Expression Policy Project (policy paper)
Intellectual Property Issues, Negativland
Copyright Basics, Betsy Rosenblatt, Harvard Law School (reference)
The Right to Read, Richard Stallman, GNU Project (parable)
Fair Use Network, (reference)
Barbie v. "Barbie Girl", (Article)
Negativland on Fair Use, Negativland
Fair Use Network, (Online information resource)
Build Your Own DMCA Counter-Notice, (form)
Subpoena Defense, Subpoena Defense Alliance
EFF database of RIAA subpoenas, EFF/PACER (court filings)
SPA Copyright Bullies Shake Down the Web, Rallying against SPA's anti-piracy tactics
Interactive Digital Software Association, Online piracy enforcement and education programs
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Related Topics
This Topic: Copyright
Anticircumvention (DMCA)
Copyright and Fair Use
Derivative Works
DMCA Safe Harbor
DMCA Notices
DMCA Subpoenas
Piracy or Copyright Infringement
Reverse Engineering
Frequently Asked Questions (and Answers)
Chilling Effects Clearinghouse -
www.chillingeffects.org
