The truth about copyrights and trademarks.

[Duke]

I saw a bunch of misinformation on the DVX board, so I thought I'd post the correct stuff here. Copyright laws have changed a lot over the years.

1) A copyright notice is not required to have a copyright.

2) Merely making the copy is a violation. No profit is required.

3) The internet does not make it public domain.

4) Stories based on someone else’s story do not belong to you. Fan fiction is a violation.

5) Fair use is allowed but it’s very complicated and varies in different jurisdictions.

6) If you don't defend your copyright you don't lose it. The opposite is true for Trademarks.

7) Titles and ideas can not be copyrighted. You could make a movie called Titanic, or make a movie about the Titanic sinking.

8) Trade mark protection is completely different and can protect colors, shapes, pictures or names as long as they are unique. Names are trademarked, not copyrighted.

9) Copyright law suits are based on a burden of proof called a ‘preponderance test,’ generally interpreted as 51% positive in order for them to rule against you. It’s not much. Beyond a reasonable doubt doesn’t apply. (There's also a separate criminal statute for copyright, if you have more than ten copies.)

10) Write facts and ideas in your own words and you will not be in violation of a copyright.

A copyright notice used to be required to have a copyright, but that changed completely in April 1, 1989. Now everything is copyrighted and protected whether it has a notice or not. Before that people lost their protection if they didn’t use the notice.

There is another issue of using someone’s likeness for a commercial purpose that is also prohibited. However, if you charge for the copy higher damages are likely to be awarded to the copyright holder.

Now nothing goes in the public domain unless the author specifically puts it there.

In the old days things became part of the public domain over time.

The "fair use" exemption to (U.S.) copyright law is for commentary, parody, news reporting, research and education about copyrighted works without the permission of the author, but can still violate copyrights if they damage the original or intend to damage the original. Fair use is more likely to be found if it’s short and attributed. Other countries are different.

Internet copyright law was changed in the Digital Millennium Copyright Act and vastly reduced the fair use doctrine.

[harkangelproductions]

John, do you have a source for your information? I am very interested in learning more and VERY surprised about #7 (Titles and Ideas). Thanks for posting!

[Worley]

1) A copyright notice is not required to have a copyright.

That's right. EVERYTHING you write is copyrighted. Including your letters. So, if someone published a letter from you without your permission, they have broken copyright law.

2) Merely making the copy is a violation. No profit is required.

That's right.

3) The internet does not make it public domain.

If you have put something on the internet, you have published it. And just because it is published does not give others the right to copy it. However, consider fair use/educational use. This applies to #1 as well. See #5

4) Stories based on someone else’s story do not belong to you. Fan fiction is a violation.

Don't confuse this with "ideas" (#7). This would refer to someone remaking the Star Wars film, for example. And recently in Germany fans were unable to release their film version of a computer game (http://news.bbc.co.uk/1/hi/technology/7010484.stm) due to copyright issues.

5) Fair use is allowed but it’s very complicated and varies in different jurisdictions.

Read the notices above the photocopiers in educational institutions (in England)!

6) If you don't defend your copyright you don't lose it. The opposite is true for Trademarks.

Yes. You write it, it's yours. Unless it's music, in which case the copyright expires after 50 years (http://news.bbc.co.uk/1/hi/entertainment/6913656.stm) (in the UK). I think that for written (word) works the copyright is 50years after death, but I'm not certain.

7) Titles and ideas can not be copyrighted. You could make a movie called Titanic, or make a movie about the Titanic sinking.

That's correct. If it weren't true, we would have precious little to read or view.

8) Trade mark protection is completely different and can protect colors, shapes, pictures or names as long as they are unique. Names are trademarked, not copyrighted.

The colour orange (Orange PCS), the word Easy (Easy Group).

9) Copyright law suits are based on a burden of proof called a ‘preponderance test,’ generally interpreted as 51% positive in order for them to rule against you. It’s not much. Beyond a reasonable doubt doesn’t apply. (There's also a separate criminal statute for copyright, if you have more than ten copies.)

It may be different in the UK. Especially where music is concerned. Stock, Aiken and Waterman sued an artist who sampled their work without credit/permission. The sample was, from memory, less than 0.5 second.

"Substantially similar to" is the terminology used over here, I think.

10) Write facts and ideas in your own words and you will not be in violation of a copyright.

Or give credit where you have used small quotes from other's works. For longer quotes, seeks permission.

In the front of almost any Stephen King novel, look at the list of credits for quotes of just single lines from songs.

A copyright notice used to be required to have a copyright, but that changed completely in April 1, 1989. Now everything is copyrighted and protected whether it has a notice or not. Before that people lost their protection if they didn’t use the notice.

There is another issue of using someone’s likeness for a commercial purpose that is also prohibited.

Tom Waits sued a German company for using the likeness of his voice in an advert.

[PTravel]

I saw a bunch of misinformation on the DVX board, so I thought I'd post the correct stuff here. Copyright laws have changed a lot over the years.This is a very good and almost completely accurate summary. I'll just the address the points that need clarification:


1) A copyright notice is not required to have a copyright.Correct, but it's a good idea to include one anyway as it will provide prima facie evidence of intentional infringement if the work is copied without authorization.


5) Fair use is allowed but it’s very complicated and varies in different jurisdictions.Fair use is an equitable defense, meaning it is committed to the discretion of the court, and intensely fact-specific, meaning that similar facts patterns might yield different results. If, by "jursidictions," you mean among the different federal circuits, you are correct. However, the general principles of fair use doctrine are reasonably consistent across the U.S.


8) Trade mark protection is completely different and can protect colors, shapes, pictures or names as long as they are unique. Names are trademarked, not copyrighted.Trademarks are words, phrases or symbols (or combinations of all three) that designate a single source for goods or services. A trademark does not need to be unique, as long as its use does not result in consumer confusion as to source, affiliation or sponsorship. For example, I could open a dry cleaners and call it Canon without infringing the trademark of the company that manufactured my HV-20. Trademark infringement is determined with reference to an 8-12 factor test (the actual factors are the same, but are grouped differently depending on the jurisdiction -- Google "Polaroid Factors" if you're interested in what they are). Similarity of mark is only one factor, and no factor is dispositive of infringement.


9) Copyright law suits are based on a burden of proof called a ‘preponderance test,’ generally interpreted as 51% positive in order for them to rule against you. It’s not much. Beyond a reasonable doubt doesn’t apply. (There's also a separate criminal statute for copyright, if you have more than ten copies.)The preponderance of the evidence standard applies to virtually all civil litigation. Copyright infringement requires establishing two factors by a preponderance of the evidence: ownership of a valid copyright and copying. Prima facie evidence of ownership is a copyright registration. Proferring one shifts the burden of proof to the defendant. Copying is usually proven circumstantially through another two-factor test: access (to the original work by the accused infringer) and "substantial similarity" (a legal term of art) between the accused work and the original. Substantial similarity, in turn, is proven by two analyses: objective substantial similarity and subjective substantial similarity. The former involves presenting evidence of direct correspondence of elements, expert witness opinions, etc. The latter simply asks the trier-of-fact, "would a reasonable person conclude that the accused work is so similar to the original that it had to have been copied?"


10) Write facts and ideas in your own words and you will not be in violation of a copyright.As long as you don't copy protected expression, you won't be in violation of copyright.


A copyright notice used to be required to have a copyright, but that changed completely in April 1, 1989. Now everything is copyrighted and protected whether it has a notice or not. Before that people lost their protection if they didn’t use the notice.The notice requirement was dropped when the U.S. conformed its copyright law to comply with the Berne Convention, which sets international standards for copyright protection.


There is another issue of using someone’s likeness for a commercial purpose that is also prohibited. However, if you charge for the copy higher damages are likely to be awarded to the copyright holder.That's not quite correct. Commercial appropriation statutes are creatures of state law. Some states prohibit use of someone's likeness for advertising. Others define "commercial" far more broadly. As a general rule, anyone appearing in public has no expectation of privacy, and their image is fair game, subject to concerns about such things as false-light defamation, etc.


The "fair use" exemption to (U.S.) copyright law is for commentary, parody, news reporting, research and education about copyrighted works without the permission of the author, but can still violate copyrights if they damage the original or intend to damage the original. Fair use is more likely to be found if it’s short and attributed. Other countries are different.Sorry, but this one is wrong. Fair use is doctrine that evolved to reconcile, among other things, the First Amendment interest in unrestricted speech and the absolute monopoly granted by Article I, Section 8. You've listed a number of instances in which fair use may (but will not always) be found. There are many others. In determining whether fair use applies, courts use a 4-point analytical structure defined by statute. However, none of the factors are dispositive -- all may be present and a work may still be found infringing, or none may be present and the particular work found to be fair use. One of the more important factors in the analysis is whether the copy damages the market for the original, not whether it damages the work itself. Attribution (or the lack thereof) is completely irrelevant to a determination of fair use as the doctrine assumes that it permission will not be sought, nor is seeking permission necessary.


Internet copyright law was changed in the Digital Millennium Copyright Act and vastly reduced the fair use doctrine.This is a political statement, not a legal one. The DMCA introduced one very controversial provision, namely the one that makes illegal defeating any copy protection mechanism. However, it also contains an expression provision that asserts it does not vary fair use law. In my opinion, the effect is to limit fair use, but the DMCA, by it's own language, claims that it does not. I am not aware of any decisions in which the DMCA was applied to a situation that, absent the prohibition on defeating copy protection mechanisms, the use would have come within fair use.

PTravel, Esq.
Intellectual property lawyer (and HV-20 enthusiast)

[PTravel]

John, do you have a source for your information? I am very interested in learning more and VERY surprised about #7 (Titles and Ideas). Thanks for posting!John is correct about #7 -- titles may not be protected by copyright (this is in the statute). Copyright also does not protect ideas, only the expression of ideas. In law, this is called the "idea/expression dichotomy" and is intended to balance the tension between the First Amendment core value of unrestricted speech and the Article I, Section 8 grant of monopoly rights in protect expression.


1) A copyright notice is not required to have a copyright.

That's right. EVERYTHING you write is copyrighted. Including your letters. So, if someone published a letter from you without your permission, they have broken copyright law.Well, not everything you write. Copyright applies only to works of authorship, i.e. that writing that displays a minimum of creativity. The threshold for required creativity is extremely low but, for example, writing down the every other letter of the alphabet won't result in a protectable work of authorship.


10) Write facts and ideas in your own words and you will not be in violation of a copyright.

Or give credit where you have used small quotes from other's works. For longer quotes, seeks permission.Attribution is not a defense to infringement. "Small quotes" (and, for that matter, larger ones) may be subject to fair use, but beware of what "small" means as a matter of law. In Harper v. Nation, the Nation Magazine incurred substantial infringement liability for publishing a single paragraph from large biography by Gerald Ford. The determination is made not with reference to counting words, but to the importance and signficance of the quoted material.


In the front of almost any Stephen King novel, look at the list of credits for quotes of just single lines from songs. The credits are there because the license obtained by King's publisher requires them, not because including them obviates copyright infringement liability.


There is another issue of using someone’s likeness for a commercial purpose that is also prohibited.

Tom Waits sued a German company for using the likeness of his voice in an advert.As did Bette Midler. Both New York and California commerical appropriation law covers name and likeness. Vanna White won a commercial appropriation law suit based on Panasonic's use of an advertisement featuring a gold-colored robot in a blond wig wearing a red dress turning letters similar to those on Wheel of Fortune.

[Ian-T]

[B]6) If you don't defend your copyright you don't lose it. The opposite is true for Trademarks.

Yes. You write it, it's yours. Unless it's music, in which case the copyright expires after 50 years (http://news.bbc.co.uk/1/hi/entertainment/6913656.stm) (in the UK). I think that for written (word) works the copyright is 50years after death, but I'm not certain.

.For music in the U.S. this is 75 years after death.

[Mal]

It's 70 years after death in the USA.

A great thread, and one dear to my heart.
Especially as one day, we (you and I) hopefully will be THANKFUL that copyright laws exists when it is our work that is unlawfully copied! :)

[Worley]

Thanks for the clarifications PTravel.

The threshold for required creativity is extremely low but, for example, writing down the every other letter of the alphabet won't result in a protectable work of authorship.

Unless you are an 'artist' in which case you can sh*t in the gutter and it's considered a monumental work of art!

I

[Duke]

PTravel, you were a bit too literal with Worley. When he said letters, I don't think he was referring to the alphabet, merely correspondence. A squiggly line, or spatter of paint on canvas can be copyrighted. It's a really, really low threshold. (But we attorneys are a nit-picky bunch. An occupational hazard.)

Also, when I mentioned jurisdictions, I was thinking other countries. This is a pretty international group and copyright still varies from country to country.

The point was, don't assume it's in public domain because these days public domain is a very limited concept.

Duke