Apparently I'm on a bit of a copyright kick these days. Copyright is stuck in my head like an annoying song. Does this ever happen to you?
No, seriously. There were some excellent follow-up questions and concerns raised after my last post on international copyright issues. For example, folks had important questions about whether copyright can effectively protect "the little guy" given the costs of suit and what you could gain from filing suit. I want to touch on these issues while giving you some "Best Practices."
Still not convinced that this is worth a read? How about scare tactics? Did you know that the difference between registration and non-registration could be you owing your attorney 15k versus you getting $150,000 in statutory damages? That's right. If you don't register, you could end up in the hole, even if you win. Alternatively, you could register, get your attorneys' fees paid for and maybe actually get some cash back in your pocket. I think this post is worth your time, don't you?
So, let's all take a deep breath, grab our caffeinated beverages of choice, and jump back into the exciting and riveting world of copyright registration.
Here's what I want to cover:
- What the schmee can I copyright?
- How trademark is like copyright and how trademark is not like copyright
- If my original content is automatically protected, then why on earth would I go through the trouble of registering it and putting a notice on all my pages? I have other things to do with my time!
- What exactly is "notice of copyright" and is this the same thing as registering my copyright?
- What should my copyright notice contain?
- How do I register my online copyright?
- What?! I need to "deposit" my online content?!
- Do I need an attorney to register my copyright?
- Can I wait until after I want to sue someone to register?
- I never, ever want to go through the trauma of trial, so what do I care about statutory damages?
- What to do if you just can't get enough of copyright law
Let's do this.
>> What the schmee can I copyright?
In the online context, you can claim copyright for your original content, including text, graphics, and sound. This includes your emails, your blog posts, and your webpages filled with original content. This is the general rule. Now let's talk about the exceptions.
⇒ Exceptions to Copyright
- Copyright does not protect ideas, procedures, systems, or methods of operation. Thus, copyright does not protect my ideas for future blog posts or my delicious recipe for smoked cake.
- Copyright does not protect facts and purely mechanical, clerical content. The phone book is a great example of this.
- Copyright does not protect really trite content. Pop music titles/lyrics are often banal to the extreme. If you wrote a song with the lyric "I love you baby," don't count on copyright protection.
- Copyright does not protect content that is in the public domain. What the schmee is in the public domain? This deserves a more detailed post down the road, but generally it's content that is very old and the copyright has expired. There are a lot of different rules that determine how long copyright will lasts. Thus, I have to break out the "it depends" answer. But if the content was first published before 1923, it's in the public domain by now.
- Copyright does not protect content authored by the U.S. government. Thus, we can quote government reports, laws, etc. extensively without crediting the U.S. federal government. Interestingly, this is not true about other governments; the U.K. for example.
- Copyright also does not protect so-called "fair uses." This is definitely the topic of a future post because it is an important, controversial, and evolving concept. To put it generally, you can use other people's copyrighted materials, but only for fair uses such as news reporting and teaching. In the U.S. you can also use other people's material for parody. (Yay!)
>> How trademark is like copyright and How trademark is not like copyright
I want to briefly address the distinction between trademark and copyright because there is a special relationship between them in the advertising context. These concepts are easily confused for SEMs because they are often used in conjunction.
Trademark and copyright are similar because both are legal regimes designed to protect intangible intellectual copyright.
Trademark is not like copyright because trademark is designed to protect branding, one specific form of IP. Copyright, on the other hand, protects content more generally. Thus, trademark is more likely to cover names and short phrases. The common example here is Kleenex. "Kleenex" is a brand name protected by trademark law. It is not original content protected by copyright.
I am talking today exclusively about copyright, but you should know that if you ever get sued for a copyright related issue, there will probably be a trademark claim in there too.
>> If my original content is automatically protected, then why on earth would I go through the trouble of registering it and putting a notice on all my pages? I have other things to do with my time!
It's true that your original content is automatically protected by copyright law even if you never give notice that it's protected and you never register it. You'll hear me say this and you'll read about it all over the web. Consequently, people don't go through the extra steps of drafting notice provisions and registering their copyright.
This is a major problem because notice and registration are what give U.S. copyright law teeth. Sure, you're protected without it, but what kind of protection is it if all you get at the end of the lawsuit is a piece of paper from a judge telling you that you were right and a large bill from your attorney. Such a pyrrhic victory is not the way to run a business.
In order to really benefit from copyright law, you need to give notice and register your content. If you do these things, then you can take advantage of the law's provisions providing that the infringer must pay the copyright holder's attorneys' fees (yay!) and you can get money awards without having to hire a team of expensive experts to testify about how you were harmed financially.
By giving notice of your copyright claims and registering your content with U.S. Copyright office, you are making the copyright laws work for you.
>> What exactly is "notice of copyright" and is this the same thing as registering my copyright?
"Notice of copyright" is a short statement that informs would-be infringers that your work is protected. Giving notice of copyright is not the same thing as registering your copyright with the U.S. copyright office. However, it is something relatively simple that you can and should do to protect your interests.
By giving notice to the world that your content is protected, you eliminate the infringer's potential defense that the theft was unintentional. How can the defendant successfully argue that she "didn't know" the content belonged to someone else if it states in plain view that the content belongs to someone? She can't. If she can't demonstrate that the infringement was unintentional, you have a better chance of proving that it was "willful." If you can prove it was willful, then Ka-Ching! You get more statutory damages.
Best Practice: Even if you're too lazy to go through the registration procedures, you can and should AT LEAST be providing copyright notice on your material.
>> What should my copyright notice contain?
It doesn't have to be a treatise, but it should communicate the following:
1. The fact that the content is copyright protected
Um, yeah. It should state the work is protected. [Duh. Aren't you glad you're still reading this?]
You can do this with many words: "This work is owned and copyright protected."
Alternatively, you could do this with as little as the symbol: © [note: this approach has global appeal for our non-English speaking friends.]
I'm partial to the elegant and simple approach: "Copyright"
I think that abbreviations are tacky, but I'm snobby about things like legal notices: "Copr." [boo!]
If you want to go for the TKO, include both: "Copyright ©"
2. Who owns the content
This is the original author. If you wrote it on your personal time for personal uses, then you're the owner. If you wrote it for work, then your employer owns it. For example, I'm drafting this post, but SEOmoz, Inc. retains the copyright to it. SEOmoz, Inc. is on the copyright notice, not Sarah Bird.
If multiple people work on the content, you list them all: "Copyright 2007 by John Doe and Jane Doe."
3. When the content was first published
Obviously, for first publications, this is pretty easy. For example, the date for this post will be November 29, 2007.
Now, when I revise this post a year from now, I will include the date of revision and the date of the original post: Copyright by SEOmoz, Inc. Originally published November 29, 2007. Revised on November 30, 2008.
And if I obsessively tweak with this post every day for the next year, I just might write: Copyright by SEOmoz, Inc. November 2007 to November 2008.
Some people like to go crazy nuts and do the date in Roman numerals. This approach is classy, but I just don't want to work that hard. But that's just me.
>> How do I register my online copyright?
Register your online copyright at the U.S. copyright office. This involves filling out some forms, paying some money, and sending all the materials and copies to the copyright office. I don't want to go into too much detail about the registration process because the process changes and you can all read, so I'll just refer you to the U.S. copyright office's website and tell you the following general things:
1. Get the right form. Assuming that most of you are going to be registering content for websites, and assuming that the content is predominantly text (as opposed to graphics or music), you're probably going to use the Form TX. This is a basic fill-in-the-blanks process. You will need to know things such as the title of the work, a description of the content, the name and nationality of the author, the identity of any known claimants to the work, and whether the work is a revised copy, a derivative, or a compilation.
Here's some more specific advice. Remember that this may be used in court some day. It should be legible and it should be accurate. Take special care in writing down the correct legal name of the owner. Don't approximate here. Also, if the owner is a corporate entity, you do not need to include a date of birth, even though they have incorporation date. [Don't get cheeky with the form!] Also, for the love of all that is sacred, please keep a copy of everything you send. Also, when describing your content, don't just say "website." Indicate the kind of content on the website. For example, SEOmoz.org could describe its content as "Primarily text and some graphics published as a website."
You would be wise to ask, "What exactly am I registering? A whole site? A Page? A blog?" Well, yet again, the law has not caught up with the technology. In fact, the copyright office isn't even publishing a policy clarifying the issue. But if you can get someone on the line, they will tell you to go ahead and copyright the whole website so long as it is not gigantic. You could also choose to do it a page at a time. For example, you will probably need to start by registering your whole website. Then, as you add content, you have to register the new content. You can't re-register the content that's already been submitted and accepted before. So, don't update your website registration for minor revisions, only for substantive changes.
Blogs are also a problem for the current system. They don't fit well into the policies for copyrighting other kinds of serials (magazines, newspapers, journals). Thus, while it's not entirely practical to register a new post every time you publish, you should be registering the new entries. One approach is to register all of your new materials on your website/blog every three months.
Remember that you cannot re-register content that has been previously registered (or, shouldn't anyway). Thus, you only need to register your new content. One thing is certain: we can expect substantial overhauls in copyright registration policies in the future. The current methods are simply impractical for our current media. I promise to keep you all updated.
2. Pay the Fee. There is a charge for registering copyright. Currently the charge is $45 per work. Thus, you probably don't want to register every email, but you do want to register your more valuable content.
3. Mail in copies of the work, the fee, and the application. Make two copies of your work. These are deposited at the copyright office. Package your copies, the money, and the form, and mail to the copyright office at the address noted here.
Your package is going to be pawed through by all kinds of people, so make sure everything is stapled together and that you send your CD in a sturdy case. It never ceases to amaze me how much stuff gets "lost" or "ruined" in the mail.
If you want more detailed information on registering online works, go straight to the fount of knowledge, circular 66.
>> What?! I need to "deposit" my online content?!
Yes. That's part of the process.
It gets worse: the U.S. copyright office doesn't allow you to electronically register anything yet. Rumor has it that CORRDS (Copyright Office Electronic Registration, Recordation, and Deposit System) is under development, but not yet operational. The copyright office is looking for beta testers if you are interested. Until CORRDS is operational, you've got to send in a paper print-out [the horror!] or a CD of the materials. These materials will not be returned. And they may be scanned for anthrax.
>> Do I need an attorney to register my copyright?
Probably not. It depends on how much your time is worth and the nature of your project. If you're trying to copyright something pretty standard, such as a webpage with all original content, you probably don't need expert advice. But if you're trying to make a compilation of other people's work, or revise some previously copyrighted work, you should probably consult with an attorney.
>> Can I wait until after I want to sue someone to register?
You can register your copyright after infringement, but you won't be able to benefit from the attorneys' fees and statutory damages provisions. Since these provisions are what make copyright suits financially viable for most people, you must must must register before infringement.
>>I never, ever want to go through the trauma of trial, so what do I care about statutory damages?
If you're thinking that you would never file suit against someone, so this doesn't really apply to you, think again. There are two theories of why this is important to do, even if you never step foot in a courtroom.
⇒ Deterrence. The deterrence theory is that potential infringers will be less likely to steal your material if they know they may have to pay statutory damages. Further, they will be deterred by the sheer intimidation of having to potentially defend against a foe who has been on the offensive in protecting their IP. That's right. You will stun them into inaction by your sheer genius!
I'm not sure I believe this theory because it assumes that people who steal copyright understand the finer subtleties of copyright law. Do people who knowingly infringe check whether the IP they are planning on stealing is registered first? This doesn't seem realistic to me. I think most [I didn't say "all"] infringers are either (1) innocent (i.e., they are uninformed about the law) or (2) run spam farms from foreign countries and are relying on those complicated jurisdiction and conflict of laws rules to protect them.
⇒ Settlement. The settlement theory is that your case is much more likely to settle if the stakes are higher for the guy faced with defending the claim. I've seen this in action and it's definitely part of the settlement equation. This factor should be enough to motivate you to register your more valuable material.
For example, imagine that Tybalt is on the defending side of this equation. Perhaps he copied large portions of something brilliant Mercutio wrote and mixed it in with some of his own ideas. Tybalt then posted the materials on his personal blog. Let's say that Mercutio files suit against Tybalt for copyright infringement.
Now, if Mercutio never registered his copyright, Tybalt might choose to defend the case because he thinks he has a pretty good shot of defending the suit under the "fair use" doctrine. Further, Tybalt knows that Mercutio is going to have a really hard time convincing a judge to give him lots of money, even if he does prove that Tybalt's conduct infringed his copyright. After all, besides being offended, how has Mercutio been hurt by the infringement? How can Mercutio translate his hurt into provable, monetary damages to the judge? It's not easy. Thus, Tybalt knows that Mercutio's attorneys are going to tell Mercutio that this is not a good case to take to trial and that if Tybalt doesn't agree to settle, he should probably just drop the suit. Tybalt is more willing to risk going to trial because the potential outcome is not so very bad.
One the other hand, let's assume that Mercutio read his SEOmoz blog religiously and had timely registered his content. In that case, Tybalt's attorneys would be telling him that it's not worth risking a loss at trial because Tybalt could end up having to pay Mercutio's attorneys' fees and tens of thousands of dollars in statutory damages (all this in addition to his own attorneys' fees! Holy bankruptcy, Batman!). Even if Tybalt had a sporting chance to prove to a judge that his use of Mercutio's material was fair use, it's not worth the risk considering the potential outcomes. Tybalt would be well-advised to swallow his pride and pay Mercutio some nuisance settlement amount.
Thus, these statutory fees go a long way towards keeping people out of court simply by raising the stakes. I submit to you that this is often good thing. I happen to enjoy trials, but I know that my clients have not enjoyed trials, even when they had a good case. Trial is harrowing and there is a lot of "waste" towards attorneys fees. Is this justice? Probably not. But is it the best outcome considering all the factors? Probably so.
>> I just can't get enough.
If you too just can't get enough of copyright and you're a fan of funny cartoons, then check out this vid put out by the U.S. government. Great for getting your kiddies on the path to Nerddom.
Alright folks. I hope that I've scared some of you into action. If you put copyright notices on all of your work and register your valuable content, your future attorney will thank you.
Thanks again for your attention. I know copyright isn't the sexiest topic in the world, but it may be one of the most important for people in communication professions.
Please keep your questions and comments coming along. I really enjoy the feedback and direction from the community.
Best Regards,
Sarah
holy lord i so wanted to skip this most due to it's length, but then i read the first paragraph, then the second, and by the time i knew it i was wondering 'hrm should i really register my content?'...
muhwah ha ha. I tricked you into reading boring law stuff! *looking very sinister*
No, seriously. I am sooo wordy. I Promise to work on it in the future. Perhaps shorter, more frequent posts?
Sarah, it wasn't wordy--every word counted. Thanks so much for taking the time to set out this complicated subject for us. I for one found it very useful. :)
I agree with Wellwrittenwords - it may have been long, but the words mattered. Epseically since you already openned many areas to do follow-up posts where you easily good have written another 10-20 column inches ;)
I'm of the opinion that this post needs to be read by almost everyone who produces serious content for the web. Honestly, I've been in this business for 10 years (only 5 in SEO) and never knew how this all worked or why it was worthwhile.
Bravo! Sarah.
BTW - Submitted this to YCombinator, and hopefully the crowd there will like it. It should be right up their alley. And yes, that is a pitiful plea for votes :)
Sarah,
First, "yes", I believe your post will please the Mozzers.
I've been engaged in copyright, trademark and IP protection for almost twenty years and I've never seen a more articulate, concise and informative overview. Thank you for a well written piece. I've already printed it to save in my archive for future reference. Of course, I won't copy and send to others without the prior express written consent of SEOmoz, Inc. ;)
With regard to designations, I will typically use the universal copyright symbol, the word, the year and the brief sentence "All rights reserved". I don't know if that's repetitive.
"Copyright does not protect ideas, procedures, systems, or methods of operation. Thus, copyright does not protect my ideas for future blog posts or my delicious recipe for smoked cake."
I thought it might be worth pointing out, for those in the US interested in protecting the above, you can go to the United States Patent and Trademark Office here. They provide excellent reference materials to guide you through the process.
Also, although I am sure most of the community is aware of this, it's worth repeating that the Internet Archive is a good resource for past content you may have written and perhaps lost track of. If you've written it and can recover it - you can copyright it.
In closing, I would second Sarah's motion to encourage and even implore you to exercise your right to protection by registering original high quality content. Not to sound overly dramatic, but the backbone of the American economy is based on the collective value of our intellectual property - which encompasses copyright, trademark and patent.
Our innovation is by far the primary reason we have been able to maintain a competitive advantage, despite the shifting of literally millions of "non-IP" jobs (i.e. mfg.) around the world.
Kind Regards,
Sean
Thanks for your comment Seanmag. We need to band together and cheerlead the others into registering their copyright.
About the "all rights reserved," it isn't legally necessary. It's kind of an old skool hold-over from pre-Berne convention days.
That said, I've always thought is was a very classy designation. Further, it goes the extra-step to communicate to potential infringers to keep their hands off. And again, the value of this is that it helps to prove that the infringement was willful. You want your notice to prevent the "innocent infringer excuse." This helps you build evidence for your case.
They same thing goes for the Internet Archive and other similar services that keep of record of what you posted then. The value in these services is in establishing when, where and what you published. Who published what first can definitely be an issue in copyright cases and it's nice to have an independent record. That said, these sites are not a substitute for registering with the U.S. copyright office. Having your content on any number of the online storage databases has evidentiary value, but is a completely different from registering your copyright with the U.S. government in order to take advantage of the statutory provisions.
Thanks so much for your comments! They allowed me to clarify and hammer home some important points for our fellow mozzers.
Even Kinder Regards,
Sarah
LOL - Your salutation keeps making me laugh...
Has SEOmoz gone through the copyright registering process for this site?
Also, is this comment owned by SEOmoz? I'm writing it on my personal time... or, I guess it is my work time, but I'm my own employer.
Copyyright 2007 by WEBOSIS
I'm so pleased that someone out there other than me cracks up over the salutation. It's definitely nerdy lawyer humor.
Ahem.
Great question about the ownership of your comment! [I'm assuming there actually was a desire to know behind your cheeky comment.]
This is another area where the law has not caught up with the technology. But I'll give you a run down of the theories in play:
1) The "My Precious Approach." The approach adopts a barebones, no-nonesense attitude. You wrote the comment; You own the comment. SEOmoz didn't write the comment and therefore cannot take any credit for it. Very simple, right?
Of course, this leaves out the problem that SEOmoz is hosting the whole post and your comment is part of a larger thread initiated by SEOmoz. Which brings me to the second approach....
2) The "Compilation Approach." Under this approach, SEOmoz owns your comment because it is one piece of an entire thread/post that it created. There is precedent in copyright law for ownership of compiliations, but this approach ignores the fact that SEOmoz didn't author your original content. Regardless, if SEOmoz wanted to own your comment (muhaw ha ha), I would have to make an argument about compilation.
3) The "John Lennon ala 'Imagine' Approach."People who favor this approach believe that copyright law does more harm than good to the peoples of the world by stifling the spread of knowledge. Thus, these people argue that no one should own the comments. It's kinda like a public domain argument--more things should be in the public domain so that the community can all benefit from them.
Each of the approaches has its draw backs and its merits. We'll see how the Courts resolve it. In the meantime, if you have a comment that you are particularly proud of and want to copyright, you should definitely put the copyright notice on it and consider registering it. [I like to think of this as the "prove-me-wrong" approach.]
Thanks again for your comment KD.
Thanks for the reply! Very interesting stuff, especially seeing that the law is so far behind in adapting to technology.
I'm wondering if you'd continue your copyright kick by going into the legitamacy of Creative Commons licensing.
Great post idea!
Thanks!
I think I once paid a lawyer a LOT of money for similar advice. Of course he did take me out to lunch and let me drive his Ferrari.
Hmmmm.
Anyway, we do register our key works, but you might consider registering other works that have value such as your TOS, major updates to your FAQ's, etc.
_OT
Okay OT, you can drive my Ferrari next time you're in Seattle.
Also, if you're registering keywords etc, you are probably talking about trademark and not copyright... Whenever I here "key words and phrases" my trademark bells start going off...
vroom vroom...
My wife won't let me drive some bird's Ferrari, more the pity.
We "register our key works" not key words. You've been hanging out with too many filthy Moz'ers. I need to introduce to my cousin Eugene, such a nice boy.
We don't do a lot of trademark stuff, which is good since it's so darn time consuming and expensive.
-OT
this is a great post. i sat through two copywrite law classes in both undergrad and grad school and i'm thinking how nice it would have been to have professors sum it up in a few short paragraphs. yeah for the dmoz genius!
Wow GREAT post Sarah... I honestly thought TM and Copyright were the exact same thing with different names. And btw THANK YOU for the reference on "Pyrrhic"....
Digg it!
Excellent read Sarah.
For those on my own rainy island of broken soccer dreams and tea, you can find Copyright, Patent and Trademark information on the UK Intellectual Property Office
The UK is different in that:
Source Link
There are some simple things you can do to strengthen your copyright claim, such as registering with a commercial company (recommended if the content is genuinely worth it), or popping a cd of the content in a sealed envelope with a sticker over each seal; take this to you local post office and ask them to stamp the stickers with their official date stamp. You can either keep this at home (don't open it!) or see if your solicitor will keep it in his own archives. Hopefully the situation won't ever arise where you have to produce this as evidence.
As I mentioned before, if your content is something that is worth keeping close to your chest, you should register it with a professional, commercial firm.
Trademarks (branding) and Patents (inventions and ideas) are slightly different beasts in the UK and you should read the government IP website. Do be warned however that UK patents can take a maximum of 4 years and sharing your idea with anyone who hasn't signed a Non-Disclosure Agreement makes your idea invalid for legal registration.
I should add that this is advice I've picked up along the way, and someone with actual legal training is quite welcome to correct me on any of this!
I'm young enough to be on the tail-end of a Wiki-education afterall :)
Thanks for keeping the conversation global Lindop.
I'll check out your sources for my planned future post on procedures for filing suit in other parts of the world.
If anyone else has valuable information about their country's Intellectual Property regimes, do please pass them along.
And heck, ya'll can private message me now.
Wow! Yet another complicated system to keep me busy. I'll just tack this on with my holiday shopping and tax filing.
World Copyright Center actually provides copyright protection free of charge over-the-web. It helps you archive your copyrightable creations, and should you need to prove copyright ownership, World Copyright Center provides you with a reliable, dependable, authentic, and trustworthy solution.
Hi C-Inspiration. [Does anyone here remember the drink Hi-C? Can you still buy that stuff? Yum.]
Thanks for your comment. I just want to make sure my mozzers perceive the diffference between registering with your site and registering with the U.S. government copyright office. It looks like C-Inspiration is valuable for creating independent evidence of what a mozzer owns and when, but it is not a substitute for registering his or her copyright with the U.S. copyright office.
Thus, if a mozzer perceives that he or she may be subject to U.S. jurisdiction, he or she would be wise to go through the registration process described in my main post above.
I think your comment, and Will's above, help to make it clear that my post applies to persons who may be subject to U.S. jurisdiction, and not to the rest of the world.
For a follow-up, future post, I'll take a survey of copyright procedures in other countries. I think that would be very valuable for our international community.
Best Regards,
Sarah
Ecto-Cooler was the shizz! :P
On the rare occasions I go to McD's, I always get the Fruit Punch Hi-C... and yes, you can get the juice boxes at the store...
But Tang is where it's at, yo! :)
I tried doing that but it all seems exactly the same " طراحی سایت "and still not working. I must have done something wrong
More! More! I think this stuff just appeals to my geeky side. Must be something like that. It's fascinating.
Two questions:
1. I can't copy my govt's stuff - can I copy your govt's stuff? I.e. does the lack of copyright on US official documents mean anyone can copy them? Just checking we brits don't have some weird thing against copying *anyone's* government documents (wouldn't put it past them!).
2. sorry, but coming back to the international angle and trying to combine your last post with this one 'on the fly' - registering content will help in cases of US jurisdiction only presumably. Can non-US companies register copyright in the US? Should we? (i.e. do you think the benefits are still great enough?). Do you know about equivalent procedures in the UK?
Thanks for your insight!
PS - Will buys a drink for Sarah (in homage to the FB conversation happening on another thread and in the hope that we get ourselves out to Seattle very soon).
I'm glad that you are just as intrigued by the law as I am Will. And you've submitted a couple of excellent questions here.
First. Yes, you can copy the U.S. government's stuff. The U.S. government has put it out there in the public domain. So by all means, start ripping off those boring databases and vacuous congressional reports.
Second. Thanks for bringing us back full circle to my post on international copyright issues. I begin with a short story on international relations:
Ahem.
Historically, the U.S. used to make registration a prerequisite to copyright ownership. The rest of the civilized world, on the other hand, had a more natural law approach to copyright, i.e., the right to own your intellectual property springs forth from your fundamental human dignity blah blah blah, and not from some government. harumph. The U.S. didn't want to agree to give up the registration requirement, and the rest of the world didn't want to have the U.S. government's blessing to claim ownership of their stuff.
So, there was this stalemate with the U.S. refusing to sign the Berne Convention for decades (Berne is the big international treaty that everyone else was apart of). Finally, the U.S. and everyone else came to a compromise: The U.S. and foreign citizens do not have to register their copyright in order to claim ownership. This pleased the foreigners. However, the catch (all good compromises have a catch) is that in order to bring a suit in the U.S., you have to register the copyright. AND in order to benefit from the monetary provisions of U.S. law (atty's fees, statutory damages etc.), you had to register before infringement.
So, in accordance with the Berne Convention's "National Treatment Doctrine," foreigners are treated just like U.S. nationals under U.S. copyright law.
[what was the question? oh yeah.] Thus, our foreign friends who may someday need/wish to file suit in the U.S. should register your copyright with the U.S. copyright office. Once you do this, you can take advantage of the same benefits and privileges as your U.S. counterparts. If you don't register, you may find yourself in the same conundrum as your non-registered U.S. mates in that it's not financially feasible to bring suit for copyright infringement in the U.S., even if you have a winning case.
Regarding U.K. procedures, before you bring a copyright infringement suit in the U.K., you must drink a strong cup of tea, apologize politely to the chappy who stole your content for making content that was so attractive, and then sing a rousing verse of "God Save the Queen." Okay. I obviously have no idea about U.K. procedures, but I'll give it a look-see. I want to keep our friends across the pond coming back to SEOmoz.
Thanks for your questions and I hope to share a real life pint very soon.
Cheers,
Sarah
Best piece of advice from any lawyer. Ever. Thanks for the real advice as well ;)
1) Crown Copyright (which covers the majority of UK government documents) essentially allows redistribution of materials without the ability to relicense them.
2) You only need to register work in the US if it's covered by US copyright. Your work will almost certainly be always protected by UK copyright by default, if you register it in the US you could potentially harm your existing (and default) rights.
Caomhin,
Thanks for clarifying C. It's true that the U.K. as well as other commonwealth countries whose governments own the copyright to government documents have issued broad licenses to allow for distribution and utilization of the information. The license process allows the government to retain complete control of the materials by requiring that each person who uses the materials use due diligence to make sure that it is accurate. Further, the government can revoke this license at any time. Thus, our friends in the U.K. are permitted, so long as they exercise due diligence, to publish many government-owned materials.
The difference is that the U.S. government doesn't "own" the documents and therefore cannot issue a license, control how the information is presented, nor can it revoke the license in the future.
Also, I am unaware of any harm that would be caused by a foreign author registering her copyright in the U.S. The U.S. registration process does not affect any of the rights or privileges that the foreign person has in her native country (or any other country for that matter). If I am mistaken or there is an important piece of the puzzle I am missing, please please please let me know. I strive to be accurate and thorough. It's not always easy because the law continues to change in every country in the world. Please feel free to PM if you prefer.
Finally, thanks also for clarifying that registration is only necessary should a person ever need to file a lawsuit in the U.S. If there is very little chance that you will ever need to avail yourself of the U.S. court system, then there is no need to go through the registration process with the U.S. government.
Thanks again for your comment and I look forward to hearing from you soon.
Best Regards,
Sarah
As I understand it the problem with registering as US copyright when you're already covered elsewhere is that it gives defendants a much better chance of getting the case heard in US courts. Although US copyright registration wouldn't remove any rights you have in your own country, for most of us outside the US it would be preferable to deal with the issue in our own countries.
The problem can then be compounded by work not registered in the US. If you have some currently unregistered work alongside previously registered work the unregistered work can get dragged into US courts far more easily too, and then we get the rough deal you point out. So basically if you register one thing in the US you should be prepared to subsequently register everything.
Certainly last time I spoke with anyone at the IPO the recommendation was to not register anything with US copyright. There are a few exceptions to this which confuse matters further, but it's legal so it can't be too simple :-)
Sarah,
One of my secondary sites is LyricVault.com. It is an online music lyrics site. I started it a few years ago with a lot of passion. More or less I thought I could do a better job than the likes of metrolyrics.com, azlyrics.com, etc.
About two months after my launch I received some rather scary emails and letters claiming that music lyrics are copyrighted material. The industry is still very much in limbo on this issue and I have done nothing more to the LyricVault.com site since to promote it. I thought I would wait and see what happens before I sink anymore time and money into it. The site does self-update though thanks to the technology I built it with and the lyrics are submitted by the users so that part is also easy. I receive very little traffic to the site right now though (about 500 visitors per day) and it peaked in 2006 at about 2,000 visitors per day.
You specifically mentioned in your post that music lyrics aren't copyrighted. Can you comment more about that? Feel free to PM me if it is more appropriate.
Excellent post!
Brent D. Payne
Thanks for your comment TOCG. It gives me the opportunity to clarify my post.
Lyrics can be copyright and most probably are. The only lyrics that are not copyright are those that are so trite, so common, that they really can't claim to be original authorship.
So, it is quite possible that the material on your site is owned by someone (the artist, the producer, the record company...it depends on the contract).
Just because other people are posting the material doesn't mean that you are "off the hook." See my discussion above about the innocent infringer defense.
I don't know any of the specifics of your case and I can't give you legal advice, but proceed with caution here. And I would be interested to know how your situation develops in the future.
Best Regards,
Sarah
Okay . . . so you aren't my silver bullet. ;-)
I am having discussions with the one company that has the rights to the lyrics (NDA doesn't allow me to say who it is). I remain small for a reason. Plus, they can't get blood out of a turnip. The last conversation I had with publishers (they own the rights to lyrics by the way) was that until I get large enough to worry about, don't worry about it. Of course, in a court of law, I am sure their opinion may change and their recollection may become fuzzy.
I'll continue to wait this one out and see what my conversations turn out to be. Many lyric sites claim that they are for educational purposes only. That since they are user submitted then it's okay. That since the lyric copyright owners haven't enforced their rights for a decade now that they have lost right to the copyright, etc.
Personally, I'll just chill and continue to be willing to pay the copyright owners once we can reach an agreement. The difference is that, I want to pay if I should. The others don't plan on paying period. Interesting situation right now in the online music lyrics industry. ;-)
Brent D. Payne
Since we're doing a quick Q&A, my only 2 questions are:
1) U.S. Government written information is in the public domain, does this include photographs? (I had heard it does, except in some strange cases where the original photographer maintained the copyright or something).
2) What about state and county governments in the U.S.? Case by case basis? Or is there some blanket U.S. law that says public entities of any kind can not hold copyrights?
Oh yes. A very subtle question VG.
The U.S. government does have copyrights for anything created by its employees.
However, it can own copyright that was transferred/assigned from other people/businesses. Thus, the U.S. government can hire independent contractors to produce content and as part of the deal receive ownership of the materials.
There has been a lot of criticism of this practice because it frustrates the intention of the copyright statute disallowing copyright in government works. There is a lot of support [among law-types anyway] to amend the law to make it clear that this practice is unacceptable.
Thus, if you see something promulgated by the federal government that has the copyright notice, don't copy it! It means that they hired a contractor to create the content for them and then assumed ownership of the contractor's copyrights.
So write your federal congress ladies and gentlemen.
Regarding state and local governments, they do not have the same restrictions against owning (perhaps I should say "creating?") copyright. So if your local government makes something, they can copyright it.
I LOVE EXCEPTIONS!
There are a few exceptions to the rule that local and state governments can create copyrights. No government (federal, state or local) can claim copyright to statutes, ordinances or judicial opinions.
There you go.
Copyright protects works of original authorship such as text, artwork, photographs, sound recordings, screenplays, music, lyrics, etc.
If you need to protect your work you will want to register it for copyright. Visit copyrightregistry-online-form.com and fill out the form on the site.
[promotional link removed by editor]
HI
I know my comment comes lately, but I' kind of newby to the online copyright world. Your Post is on of the most complete and most usefull I readed.
Here is a tips for reader who arfe not US resident ( like me), because the US Copyright office is the only national copyright office providing a mechanism to deposit a copy of work’s content that is the subject of the copyright registration. In most case, applicant only register the title of his work. What worth a copyright protection if you can't protect what realy matters its content ! ????
in those case, I suggest to use prive web site to register your creation, so yopu could get a timestemp and evedence of your work to claim your right. theire is a few of theme on the web: www.fidalis.com, www.mapreuve.com. My favorite one (even if your visual aspect is not perfect) is www.myrightskeeper.com because they have a free service, and the possibility to protected a unlimiteted number of files to single works (very usefull to all parts of a song:lyrics texte,, beats, every instrumental parttions, and the overal projet)
Hope its' helpfull for you.
Marco Theo
(please excuse any mistake, english is not my first language)
Ello Sarah. I have a rather simple question for you:
Lets assume, I have comeup with a blog with some really unique contnent originally written by me. Since I don't want any one to steal my content, I also get it copywrite after paying $45 for my whole blog (just as you said). Now, a month later I come accross a competitors website, in which he has presented my blog posts, my content, idea after moulding it in a different format, changed grammer and minor color tweeks in the graphical images. It's ben copied to an extent that even a blind can tell you that both have some relation and I am actually very unhappy about it.
Now my question is: CAN I SUE HIM / HIS COMPANY?
Fabulous article. Thank you so much!
This was a very good article! I wish it was written years ago when I was much more confused about copyrights, trademarks and patents. It would have help out a lot.
One question though. When it says there is a $45 fee per work, does that mean $45 per html page or would a 'work' consist of an entire website?
Thanks for the great article!
Great question!
$45 per "work," not necessarily webpage. For example, if you've never registered your website before, it's not gigantic, and it contains original content, you can most likely register it as a single "work" for $45 buckeroos.
As you add pages or change content, the new stuff doesn't automatically benefit from the previous registration. YOu have to register the new stuff and you can't re-register the old stuff.
Whe you're updating, your "work" is likely to be a few pages on the same site and you can probably get away with the $45 fee.
I hope this helps to clarify.
Do services like Numly.com help or hurt the copyright protections we can claim against infringement?
What happens if we register our web site with the US Copyright Office for launch through November 29, 2007; then we edit a post from sometime in the past? I assume when we register our updated articles from November 30, 2007 to that date in the future, we would also need to remember that we need to re-register that updated post, correct?
Sarah, thanks for this excellent and informative post! I agree with Rand...everyone producing web content needs to read this.
Hey Sarah ! That's quite a rich post. To be frank I have read just half of it till now, but would definately go through it atleast 2-3 times (with your prescription offcourse: a cup of coffee) later when I reach home, have lots of work right now. I am sure your vigilance will actually help many. Cheers to your efforts !! :)
You deserve my Salute Sarah!
I am thinking that i should have copyright for the entire content on any of the websites that i am a part of.
Great Post ! ! !
Great Job, I always get lost on copyright do's and don'ts.
Excellent read on a topic that is too important to ignore, especially with greater numbers of folks whose business plans include the development and sale of information products (not endorsing the business model, just stating that if it is your business model, you need to know this stuff.)
In the U.S. you can also use other people's material for parody.
Which is why Weird Al, technically, doesn't have to get permission from say, Chamillionaire to do "White and Nerdy." (Although Al, being a mature professional, has always acceded to the original artists' wishes **cough**Prince**cough**.)
That's funny Kat - and you're absolutley right. It's not just a matter of using information that's considered public domain. There's a huge distinction between projecting something as parody (Weird Al, SNL, etc.) and satire (The Onion), versus the truth (as suggested by The National Enquirer), which is what exposes them to libel and slander lawsuits.
For me, it raises a question that may be a bit off base, but Sarah, if you're up for it, can you touch on the requirements of posting another source's content on your own site, in terms of recognizing them?
Also, if you inadvertently use copy from a source that was actually plagiarized from the original, are you subject to legal action? In other words, is the onus on the user to ensure that the source is the original?
Agreed. I'd like to see some stuff on proper citation for derivative works.
Dude, I'm totally up for it.
Your question about when it's okay to post another source's content on your own site falls neatly into a discussion about "fair use." I'm planning a nice general post on this sometime very soon. I'm debating between "fair use" and trademark for next week's post.
The short answer, of course, is that you can't post another source's content on your own website at all, unless it falls under a "fair use." Fair use is such a mushy concept under the law (judges are people and people have different ideas about what is fair) that I can't tell you more without launching into a big speech. So, please please please check in with me next week to go explore this topic in the detail it deserves.
Your other question is about the "innocent infringer excuse." [Disclaimer to my international friends, I'm talking here about U.S. law. The laws in other jurisdictions are probably different.] The law has always struggled to find a balance between the guy who's content got ripped off and the guy who accidentally ripped him off because he reasonably assume the content was in the public domain or that he had some right to publish. In determining who should bear the onus to make sure that the source is original, the legislature decided that the infringer should bear the onus to make sure he has the right to the content. It's not a perfect solution, but the infringer is in a better position to avoid the error than the copyright owner.
So, in a way, copyright infringement is a "strict liability" rule. If you infringe, you're guilty guilty guilty. The judges don't care about your intentions.
BUT, the harshness of the "no innocent intent" rule is slightly mitigated by damages rules. You may be liable, but what kind of damages can the court require you to pay?
As touched on above in my post, there are different ways of calculating damages: (1) actual damages, and (2) a range of statutory damages. The difference in dollars between these can be, and usually is huge.
Thus, while an innocent infringer will still be found guilty, the damages are likely to be very small. This acts as a disincentive for copyright holders to bring suit against truly innocent infringers. Why bring suit against the innocent infringer if you're only going to get a lousy $200 bucks?
So each case has to be evaluated based on what you think you can prove. If the defendant has a good shot at proving he was duped by some third party into innocently infringing, you would be wise to either drop the suit altogether, or settle for a relatively modest sum.
By the way, my discussion about the range of statutory damages is pretty cursory. If you want to dig deeper, check out the statute, Title 17 of the U.S. Code, section 504.
I hope this helps explain why there isn't an "innocent infringer defense," but there really kinda is one.
Very truly yours,
Sarah
Well, there you go folks. That answer alone was worth at least 3x the monthly cost of a Premium Membership. I do not cease to be stunned by the value SEOmoz is bringing to this community, and thank you again Sarah for your exceptional consideration.
Folks, please give Sarah a thumbs up to recognize the $200/hr+ it would have cost to have your own attorney answer these questions.
This entire post belongs in the SEOmoz Hall of Fame. (mozHOF)?
Kindest Regards,
Sean
Thanks for taking the time to write this in such detail. I just met with my attorney about trademarking my business name, SEO Columbus. We're not sure if it will be approved or not since it contains an industry and a city name, which I understand individually can not be trademarked but separately may. I have marked my logo and name with the TM label on my site showing intent, which I understand is important as well. Of course, even if I am able to make it official, getting people in Ohio (or anywhere for that matter, but probably not that much in demand elsewhere) to stop using the trademarked name may be a futile effort anyway.
Great post Sarah.
It sounds like you are helping a lot of people, including me.
Thanks
Great stuff; I went to a 1-1/2 hour seminar with a major law firm here in Chicago on copyright/trademark law and didn't learn half of what I got out of your post in 10 minutes.
One specific question (and if it's too specific, feel free to ignore it); if you're self-employed but not incorporated, is it generally better to use your name in the copyright notice or your company name (or does it not matter)? In other words, would "©2007 John Smith" or "©2007 SmithCo Consulting" be preferable (assuming SmithCo is just John)?