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A poem or written story, a recorded song or choreography, an artwork or a photograph, and some intellectual works – these are just some of the original creations that are automatically protected by copyright. This means that the creator, author or artists of these works has the exclusive right to make copies, distribute, display, modify, adapt and derive from his or her material.
Generally, it's not legal for anyone to use a copyrighted work without the owner's expressed permission. Otherwise, you could be liable for copyright infringement and may be sued or fined for the violation under the provisions of the copyright act.
What is copyright infringement?
Copyright infringement pertains to the violation of someone's intellectual property (IP). It is another term for piracy or the theft of someone’s original creation, especially if the one who stole recoups the benefits and not the creator of the material.
To understand copyright infringement, you must first know the rights, as well as the limitations, of a copyright holder. It's possible to engage in copying and distributing someone's work without actually violating or infringing anything, so you’re not legally accountable. It's also possible to be subjected to a legal process even if you had no intention or knowledge that you stole from the owner.
Purpose of copyright
The primary purpose of copyright is to give creators the incentive and reward for sharing their original work. Creators can economically benefit from their copyrighted materials and receive proper recognition. They can also call the shots on how their work may be reproduced, distributed, adapted, derived, aired, streamed or displayed.
With exclusive rights, creators can be encouraged to come up with more creations to share with the public. Thus, the public may also benefit from their work because it can be useful for the enrichment of their lives.
Creators, however, are not obligated to make their work public. Still, unpublished materials are protected under the same copyright laws. Creators are also not required to register their work with the U.S. Copyright Office. They do not need to place a copyright notice or copyright symbol © on their work to gain copyright protection, and it won’t devalue their original work.
Works with copyright protection
Copyright protection attaches to an original work the very moment the creator puts it in a fix or tangible format. These may include some of the following subjects:
- Literature - novels, short stories, essays, poems, manuscripts, articles, computer software, and smartphone apps
- Music - musical notes, melodies, and lyrics of a song or jingle, operas, and musical plays
- Sound recordings - podcast, CD, and recorded speeches
- Audio-visual - movies, television shows, online videos, stage plays, video games and slideshows, pantomimes, and choreography
- Art - graphics, fine arts, photographs, maps, diagrams, and sculptures
- Architectural - architectural plans and the drawings associated with it
Materials distributed over the internet are also protected by copyright. It would be a mistake to believe that it's immediately part of the Public Domain once someone posts their work on the internet. Thus, anyone uploading, distributing and downloading copyrighted material online without the permission of the creator may still be charged for copyright infringement.
Works without copyright protection
But copyright protection may not be extended for the following types of subjects below. Instead of copyrighting these works, the owners or creators may file for other forms of intellectual property protection, such as a patent or trademark, to gain exclusive use of the materials.
- Titles, slogans, and taglines
- Ideas and concepts
- Procedures, methods, and systems
- List of ingredients
- Standard information (e.g., height or weight charts, measurements, calendars)
- Familiar symbols, such as a 'no smoking' sign
Terms of protection for copyrighted work
A creator has copyright protection for his work for as long as he lives. The term of protection, however, ends 70 years after his death. If the creator has collaborated the original work, the term of protection will last 70 years after the last surviving creator's death. Anonymous or pseudonymous creations, on the other hand, carry a protection term of 95 years from its publication.
Limitations of copyright ownership
Copyrighted work comes with certain restrictions and exceptions. Specifically, the law has a 'Fair Use' provision that may allow for the distribution and reproduction of copyrighted material without the owner's expressed consent.
Under Fair Use, if the original created work serves to teach, to be discussed and studied, to be reported in the news, or to be commented in public discourse, then it may be disseminated without any legal repercussions. Fair Use serves to balance the owner's rights versus public interest.
Some exceptions to copyright protection may include the following:
- Library and archives - Protected work may be copied for the purpose of its preservation in libraries and archives.
- Educational use - Copyright infringement doesn't apply to protected work used for learning, instruction or examination. For this purpose, the material may be photocopied, performed and played as part of the public's education and enrichment.
- Temporary copies – Having back-up copies of a computer program, provided it has been purchased and used lawfully, will not infringe on the owner's copyright.
- Specialized format - Reproducing and distributing copyrighted work in a specialized format for people with disabilities is not a copyright infringement.
Examples of copyright infringement
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A typical example of copyright infringement is the use of music in your videos. If you have not obtained the permission to use a song as background music for your home movies, business presentations, or your own creative work, then you could be liable for copyright infringement. Video-sharing sites like YouTube and Facebook actively flag down or mute songs and music for copyright violation.
Some creators put their work online to be downloaded for a fee. But it is a copyright violation to download a movie, TV show, music, software or e-book from a website that is not owned by the creator. Usually, these non-authorized sites also automatically prompt you to share the same material to others. So, you are redistributing copyrighted content against the owner's wishes with or without your knowledge.
You're reasonably allowed to record a TV show at home if you intend to watch it later. But it becomes a copyright infringement if you pass your recorded copy to other people, or you reproduce a bunch of copies to sell and profit from it, or you broadcast and post the video online.
You're infringing on the copyright of a creator's photograph, graphics or artwork if you use these without permission in posters, flyers, brochures or your own website. You also can't use these IP for your marketing campaigns unless you buy the photograph or artwork or pay the creators a certain fee. Similarly, even if you’ve purchased or paid for someone’s artwork for a specific use, you cannot put this on t-shirts, mugs and other items for selling if the creator didn't give you permission to use his work for merchandising.
You cannot also copy someone's creative work to claim as your own, even if it's a 'derivative' or 'inspired' work. This is called plagiarism in the publishing or music industry.
But copyright infringement can be subject to a lot of conditions. Copyright infringement litigations are decided on several factors hence the legal proceedings might be a bit tricky for both the defense and the prosecution’s side. Courts have to look at all possible factors to determine if there was indeed a violation.
- What is the nature of copyright violation?
- How much of the work was actually copied?
- What's the effect of a breach to the value of the copyrighted work?
Famous copyright infringement cases
'Star Wars' sues 'Battlestar Galactica', 20th Century Fox vs. Universal Studios
Universal Studios wanted to develop a space saga and sci-fi production after the commercial success of the first 'Star Wars' in 1977. So, the studio came out with TV series 'Battlestar Galactica' in 1978 with creator Glen Larson.
But 'Star Wars' producer 20th Century Fox claimed that 'Battlestar Galactica' had at least 34 similarities to their own space saga. So, the studio filed a lawsuit for copyright infringement against Universal.
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The California Central District Court executed a summary judgment in favor of Universal after finding that 'Battlestar Galactica' did not copy from 'Star Wars.' As far as this court was concerned, the only similarity between the two productions was the conflict between good and evil in outer space.
But 20th Century Fox appealed the case at the Ninth Circuit. This time, the appeals court found reasonable grounds to proceed with a trial, citing that there were, in fact, similarities to 'Star Wars' and 'Battlestar Galactica.' There were similar scenes, similar costumes, and equipment, as well as similar characters and conflicts.
However, the studios settled the case before the trial started. But 'Battlestar Galactica' was canceled by then and 'Star Wars' was anticipating the release of its second blockbuster movie 'The Empire Strikes Back.”
Napster vs. various recording companies
In 1999, Napster launched as a peer-to-peer (P2P) file sharing platform. It featured a pioneering technology that allowed people to share their audio format mp3 files on the internet.
But when Metallica learned that one of their demos, titled 'I Disappear,' was being distributed on the platform before its official release, the band sued Napster for copyright infringement. Soon, other artists and recording companies under the Recording Industry Association of America (RIAA) filed similar lawsuits after Napster refused to take down their original creations.
The District Court ruled in favor of the RIAA, but Napster appealed the case at the Ninth Circuit. However, it lost the appeal as well as the Ninth Circuit upheld the original decision that Napster was liable for copyright infringement. The company didn't have any safeguards for keeping track of the materials distributed on its website. It also didn't restrict access to the sharing and distribution of copyrighted materials.
After its developers and operators filed for bankruptcy in 2002, new management acquired the company. Today, Napster is an online music store for independent artists.
Author J.K. Rowling vs. 'Harry Potter' dictionary
Steven Jan Vander Ark, a 'Harry Potter' fanatic and a school librarian, labored for seven years to create a 'Harry Potter' dictionary or lexicon that served as a guidebook for J.K. Rowling's famous literary series. But Rowling and Warner Bros. Entertainment filed a lawsuit against Vander Ark and his publisher, RDR Books, for copyright infringement.
Rowling wanted Vander Ark to cease publishing his guidebook because it was much too similar to the original literature. It was also hampering on Rowling's creativity as she had plans to come up with a companion book or an encyclopedia to guide 'Harry Potter' readers.
The court sided with Rowling because it found that while Vander Ark intended his lexicon to be reference material, the fan copied the author's work too far. Vander Ark didn't abide by Fair Use and had no original commentary to go with his guide book.
How to avoid copyright infringement
It's relatively easy to reproduce and distribute other people's original work with today's technology. But the risks of using copyrighted material will not be worth the trouble to your finances, your time, your sanity and peace of mind. Below are some tips on how to avoid copyright infringement and become embroiled in a copyright case.
Assume there’s always copyright
It is safer to assume that any created work is protected under copyright laws. If you cannot find an explicit statement confirming that the material is for public use, there’s still a good chance that someone already owns the rights to it.
It would be better to get written consent from the copyright holder if you’d like to use the original material. Make an effort to contact the person or entities concerned to make a deal or negotiate its use.
Read and research before using an IP that is not yours
Some creators were willing to share their material for a price. There are also creators who can grant permission provided that there is proper attribution. If there’s no specific fee or other attribution conditions, you could find the Terms of Use on the owner’s official site. Read and go over the terms and conditions carefully because the crucial details are in the fine line. For instance, while you can use someone’s image for printed materials, such as in magazines, posters or brochures, its copyright or Terms of Use might prohibit the content from being used online.
If there are no explicit fees, attribution conditions or Terms of Use, then it’s better to assume that there are prohibitions to the material. Once again, your best bet is to contact the owner for the expressed consent.
Understand the nuances of Fair Use
However, if you are also aware of your rights under Fair Use, you can still freely take advantage of original work for non-commercial endeavors if you cannot obtain consent. But you need to consider a few variables that might affect your usage. Before taking someone’s work, ask yourself - how your use will impact its value in the market? Always be cautious and consult a legal expert on copyright laws when in doubt.
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Source materials from the Public Domain
There are many sources for free-to-use materials under the Public Domain. Search for the ones with Creative Commons licensing, which can be commercially viable.
Create your own or pay someone for the original work
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If you have the creative or artistic skill, you can create your original materials instead of copying or deriving from other people’s work. If you have the financial resources, then you can also commission other people to be the creators. In this case, you will still hold the copyright under “works made for hire” or within the scope of employment or contract of the creative.