This is once again, the topic of the day. Here is an article I wrote and posted many times, in response to similar questions. The facts patterns of the problems you'll see here are original posts, and you'll see the similarities abound.

Now please don't take this as bona-fide legal advice. You have to go to a real lawyer, like Ivan, and pay hefty fees to receive personal information on your particular facts to receive true legal advice.

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> >>At 11:08 PM 6/29/98 -0400, (Bill Warner) wrote:
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> > as long as the attribution is there. If it is published on the Web for the world to read, it can certainly be copied.

Original article from June 29, 1998 =============== feel free to post with signature below.

Lots of fun to have with this question.

Sorry Bill, not quite correct. In fact Bill's statement shows just how risky it is for authors and publishers to remain uninformed about the copyright laws. Time to get with it folks.

However as with most legal questions, the answer to the key question -- "is the use of a writing prohibited and actionable under law?" is -- ta da:

It depends.

I'm going to put my once-upon-a-time attorney hat on, and give you the two minute discourse. Just remember folks, this is not bona-fide legal advice. Just words from a former attorney turned publisher and now custom news distributor, with a few legal books and case law at his fingertips.

The US Copyright law, BTW, is one of the most amazing statutes to ever have been created. Just think of the industry it has created -- and it was written nearly a century ago. Can you imagine the foresight of the lawyers and Congress when they were contemplating whether to pass this law? Wow. This is definitely one of the best laws in America. I love this law.

US Copyright laws and regulations grant a "copyright protection whenever an original creative writing is fixed in a tangible medium, e.g. paper, or a computer file. However, there are several key exceptions to the copy right laws that one must take into account.

To acquire the best protection for a creative writing, it is best to register the copyright by submitting the writing to the Office of Copyright with a Form T and appropriate payment, but this will only be of value in a contest or lawsuit down the road. The registration protects the filer from a contest later on. The first in time usually wins the first in right.

Original means that the work owes its origin to the author.

The copyright may not belong to the actual author if the writing was created as a work for hire. In other words you wrote the work for someone else who paid you. This is often the case when you hire someone to create a web site, but watch out for fine print in the contract that leaves the copyright in the hands of the web author -- not you. Sneaky ISP's actually have been known to do this.

If someone sends me a news release and I transmit it. The copyright is their's. "For Immediate release" constitutes a waiver of copyright protection of any copyrighted writings contained therein. Also, I'm a publisher and they give me permission to publish it to locations known and unknown. But go to PR Newswire and when transmitted it may actually go out with a PR Newswire banner and a PRN copyright on it. Now figure that one out???

If you're the actual author, the copyright is yours, if you wrote the work for hire the copyright belongs to the person for whom you were working. If a work is created by an employee within the scope of his or her employment, the employer owns the copyright. Thus if you hire me to write the news release, the copyright is yours, and the news release is a work for hire.

Most published works contain a copyright notice, though not on every page. For works published after March 1, 1989, the copyright notice is optional. Putting the words copyright or a big circle C on a work provides notice -- it helps people see that the work is copyrighted.

But the fact that a work doesn't have a copyright notice does not mean that the work is not protected by a copyright.

It is true that copying a very small amount is not a violation of a copyright. But what constitutes a "small amount" has been litigated across the spectrum. 300 words has been held actionable. 50 words is actionable, especially if it is the best part. Try using the words Coca Cola in a commercially profitable way without permission. (BTW, my use of the words Coca Cola here is fair use).

Copying any part of someone elses work is risky. You may have to run the risk of defending yourself in a lawsuit. Expensive. You may have to deal with public humiliation.

The easy way out of all legal entanglements and bad will is to simply get permission to include or use the writing. Compensation (required in any legal business transaction) need not be financial -- it could be sufficient consideration to offer the recognition that comes from the publication. This is cross promotion, and it is done widely by publishers all the time. I cannot imagine a sane web site owner saying no to free publicity. But you cannot assume that an author will be happy that you published his or her work without permission. They may wish to license your use or receive some alternative form of consideration in exchange for your use of their work.

If you give credit to an author or owner of a copyright, you certainly are are not plagiarizing that person's work. But you still may be violating his or her copyright.

You also can't simply change a few words here and there to avoid copyright infringement. A judge would simply compare the original and the adultered version and look to see who owned the copyright to the original creative work.

To cover your bases, you must get permission. Even an e-mail note will suffice to cover future potential liabilities. Sometimes, formal jointly signed highly detailed and lengthy permission statements are needed. Mostly not -- permission must however expressly cover the intended use of the writing, and will only cover the expressly identified use of the writing. Thus an e-mail that says "you can put a link on your web site", is different from "you can use this comment or testimonial in your books, promotion and marketing materials".

Both are satisfactory. Both are specific. If your first permission is not broad enough to cover a second intended use, simply ask again.

There is an exception called fair use. There's a lot of litigation over what constitutes fair use.

Generally, fair use occurs when the authors writings are used for non-commercial purposes, as in educational materials, or in a book review. Traditional fair use covers commentary, criticism, news reporting, teaching non-profit use, but not entertainment or for any commercial gain.

So if you incorporate someone's writing into a publication that is sold for profit -- watch out.

Facts and ideas of course, cannot be copyrighted either. The copyright just doesn't cover the facts in a writing. It may cover the creative and original way in which the facts are presented.

Finally -- the key question to the one whose copyright may have been infringed:

Answer -- It depends!

The decision hinges on whether going after one who violates a copyright or infringes on a copyright and getting damages worth the cost and effort of doing. Some might say that money is not the question -- it may be honor. You may be satisfied with a minor negotiation, or a voluntary cease and desist. If someone has made a movie off a book you wrote, it may be worth millions.

Key thing to remember is to keep your cool when approach a copyright infringer. Be carefull. Be professional.

Get a little angry yes -- but then put your thinking cap on and think up how to benefit from the (illegal) use of your writing. Strategize all the ways to turn the use to your advantage.

In the publicity business, they say that there's no such thing as bad publicity. The bright side is that you get published -- people see your name. Same here. The question is can you get more and can it be beneficial?

With improper use by major media, the answer is almost always yes. That's because they cannot afford to become known as a copyright infringer. With celebrities -- read the papers -- they voluntarily settle for millions.

With those who rip off writings and use them at their web sites, some lesser form of compensation is desirable. You should explore this when it happens.

This is the business of publishing, and be it known -- it goes with the territory. Successful people are copied -- they are approach and used to the limits of legality with and without their knowledge all the time.

When dealing with a copyright infringer, your initial tactics will likely determine the outcome because it will have an immediate and direct effect on the degree of cooperation, and the nature, direction and magnitude (e.g., severity, if you're not careful) of the response.

Think carefully about what you might want in return for some compensatory actions on their part.

You can profit when someone violates your copyright without getting legal about it. If you play your cards right, you may get quite a lot of good and valuable things in return.

Paul J. Krupin, JD (no jokes please!)


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