Copyright Infringement Basic Concepts

by Claire E. White

This is part two of Basic Copyright Concepts For Writers.

Copyright Infringement

An author must be concerned with two aspects of copyright infringement: avoiding having his or her work infringed upon and avoiding infringing others' works. Copyright law protects against the copying of the "expression" of a work, not of the author's ideas. The difference between the expression and the idea of a work is a difficult concept from a legal perspective. Even if someone does not copy a work exactly, the "expression" of the work may have been copied. This concept is particularly apparent in music and art. If the allegedly infringing work is "substantially similar" to the copyrighted work, copyright infringement exists.

The owner of a copyright really owns a "bundle" of rights, like a bundle of sticks. Each stick or right can be sold or assigned separately to a third party. The rights owned by the author are as follows:

The Right to Reproduce the Work: the right to copy, imitate, reproduce, duplicate or transcribe the work in fixed form.
The Right to Derivative Works: the right to modify the work to create a new work. A new work that is based upon an existing work is a "derivative work".
The Right to Distribution: the right to distribute the work to the public by sale, rental, lease or lending.
Public Display Right: the right to show a copy of the work directly to the public (e.g., hanging up a copy of a painting in a public place) or by means of a website, film, slide, or television image at a public place or to transmit it to the public.
Public Performance Right: This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public.

Infringement can occur when any of these rights is violated. For example, Joe, a science fiction enthusiast, decides to create a webpage featuring Star Wars®. He places pictures on his site of Princess Leia, Han Solo and Luke Skywalker underneath a big Star Wars® logo which he copied off the official Star Wars® website. He also places a midi on his site which plays the Star Wars® theme music and shows an animation with 3 stills copied from the video version of the original movie. He then adds an interactive message board where viewers can add a paragraph to a new adventure on which these characters embark and a quote "There is no try...only do" under a picture of Yoda. Sound familiar? There are sites like this all over the Web.

So, what copyright violations has Joe committed? Well, he has infringed upon Lucasfilm's bundle of copyright rights in a number of ways. By copying the pictures of the characters from the film he has infringed upon Lucasfilm's right of reproduction and possibly upon the individual actors' rights to publicity. By creating a new storyline with the same characters from the film he has violated the right to create derivative works. By showing stills from the movie in sequence he has violated the right of public performace. By playing the midi he has violated the rights of the holder of the copyright to that music and of the holder of the rights to that particular recording of the music. He would also be liable for reuse fees which are paid to the owners everytime that music is played or performed in public. The quote could possibly be considered a copyright infringement upon the script of the movie if it is considered a key phrase, even though the quote is small. He has also infringed upon the trademarks of Lucasfilm by showing the Star Wars® logo, which is a registered trademark of Lucasfilm.

A number of myths persist on the Internet in this regard. The first myth heard is, "it's just free advertising so it's not infringement". Not true. The holder of the copyright has the exclusive and sole right to decide when and how to advertise its products. This issue is a hot one - thousands of fanzines online and offline are gathering places for fans to discuss their favorite movies and television shows. The fans get very angry when the big studios and companies send threatening letters to the owners of infringing websites and obtain injunctions ordering sites to be shut down. Some studios even encourage the fans' unauthorized activities behavior on the quiet, while adopting an official policy against any infringement. The reason for this behavior has to do with trademark law, not copyright law. A holder of a valid copyright cannot lose that copyright in a work by failing to defend it. However, a holder of a trademark can lose the trademark if the holder fails aggressively to prosecute trademark violations and defend the mark. Therefore, Joe should be especially worried about that trademarked StarWars® logo sitting illegally on his site. The bottom line is, if you copy something without authorization you are taking the risk of being sued and/or having your site shut down. You must obtain a license or assignment from the owner of the copyright before you may reproduce the copyrighted material in any format whatsoever, including on the Internet.

Another misconception heard on the Internet is that if the site is free and the owner is not making money from the site, than any material on the site does not constitute copyright infringement. Irrelevant. Although whether the infringement is commercial or not may have a bearing on the damages awarded in the subsequent copyright infringement suit, it is not a defense to infringement that you made no profit from the infringement.

One of the biggest misconceptions on the Internet appears to be an idea that one can gain title to a copyrighted work by altering the image. This is absolutely false. If Joe, our hypothetical infringer, copies a copyrightable photograph of a horse in a field from Sue's webpage then adds animation to it so that the horse now appears to be running through the field, Joe does not own copyright to the picture. He only owns the copyright to the animation element, not of the horse running because it is a derivative work of the original photograph.

Exceptions to the Infringement Rules

There are three exceptions to the copyright infringement rules which allow one to reproduce a another's work without obtaining a license or assignment of rights: when the use is considered "fair use", when the work is in the public domain, and when the material is not copyrightable. "Fair use" is a doctrine which states that one may reproduce the copyrighted work for a limited purpose of teaching, reviewing, literary criticism and the like. Without the "fair use" doctrine no one would ever have his or her book reviewed or have been able to study the works of Kurt Vonnegut in college or high school. "Fair use", however, is a slippery doctrine, and is determined on a case by case basis. Quoting small amounts from a work have been held to be copyright infringement where the quoted matter was crucial to the work and the copying contributed to the decline in commercial value of the work. On the other hand, entire passages quoted from books have been held to be "fair use". To be safe, ask permission from the author.

Public domain refers to works which are no longer covered by copyright law. For example, the recent rash of movies adapting Jane Austen's novels may have something to do with the fact that no one holds the copyright to these works; they are in the public domain and no license fees have to be paid to the author or her heirs. Facts which are common knowledge such as the form of calendars are also considered to be public domain and may be copied and reproduced at will.

The third exception relates to noncopyrightable works. Facts are not copyrightable, nor are ideas. However, a compilation of facts presented in certain order with original input and formatting, such as Writers Write's^® guidelines listings database for example, is entitled to full copyright protection.

Conclusion

The Internet has compounded the copyright problem. When an author posts his or her work on a homepage it can be seen by people all around the world in countries which have no copyright treaty with the United States. Even if the author's work is infringed upon, he or she may never even hear about it if the work is reproduced in a foreign country. Furthermore, it is expensive to pursue a copyright violation lawsuit in a foreign country. However, it can be done.

If you find a copyright violation, the first step is to write a letter to the offending party requesting that the infringing material be withdrawn or removed from a website. If the infringing material is located on a website and the owner refuses to remove the offending material you might consider informing the owner's Internet Service Provider ("ISP") about the situation. The law in several countries is changing to hold ISP's liable for violations of various laws by users of the ISP and many ISP's will respond to complaints about illegal activities on members' websites. The underlying remedies for copyright violations have not changed because of the electronic revolution; one can still sue for damages and for an injunction to prohibit the display or transmission of the copied work. However, it is a good idea for today's authors to pay attention to what is happening on the Internet in order to protect their creative works.

PLEASE NOTE:

This article is intended to be a general summary of basic copyright concepts and may not be relied upon as a substitute for legal advice. If you have a legal matter involving copyright issues you should consult an attorney regarding the specific facts of your case.

**Claire E. White is an attorney with over ten years' experience in major law firms. She is a former instructor at the University of California at Irvine Extension and is a frequent lecturer and writer on legal and business topics including computer law, corporate law, the Internet and effective business communications.

Return to the September 1997 issue of The IWJ.