Updated: Sep 8
Wei Wei Jeang
Q: Can I protect my manuscript by mailing it to myself in a certified letter?
A: This method of “protection” is often called “the poor man’s copyright.” This method doesn’t protect your rights under copyright law. Copyright registration is a relatively inexpensive process and should be used to secure copyright registration for published works of authorship.
Q: How much do I have to change so that it’s not copying?
A: If you started with a copy of the original copyrighted work that didn’t belong to you, then it’s a violation of copyright. Under the fair use doctrine of the U.S. copyright statute, it may be permissible to use limited portions of a work including quotes, for purposes such as criticism, comment, news reporting, education, scholarship, and research, however, it these factors are not dispositive. There are no clear rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on the specific circumstances.
Q: How much do I have to change before I can claim copyright to the “new” work?
A: Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work, which is called a derivative work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent.
Q: I paid for it so don’t I own it?
A: What you probably paid for is the copy itself but not the underlying copyright. When you purchase a song and download it, for example, you may own that specific copy of the music, but you do not have the right to make copies of the music to send to all of your friends.
Q: I hired Johnny to write software for me. Don’t I own the software?
A: Not necessarily. Is Johnny your employee or is he an independent contractor? If he is an employee, your company owns the software and the underlying copyright. However, if Johnny is an independent contractor, he owns the copyright of the software by default. Your company owns the copyright if you have a written agreement signed by Johnny assigning all of his IP rights in the software to you. Absent such an agreement, Johnny will likely be legally viewed as the author and owner of the copyright.
Q: I hired Johnny to write software for me, isn’t it work made for hire and I own it?
A: Not necessarily. The term “work made for hire” has a statutory definition according to the Copyright Law. A work made for hire is work prepared by an employee within the scope of employment, or work specially ordered or commissioned for use (a contribution to a collective work, a part of a motion picture or other audiovisual work, as a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas). The parties also need to expressly agree in a written agreement signed by them that the work shall be considered a work made for hire.
So the first step of analysis is to determine if Johnny is an employee. If Johnny is an employee, then the employer would own the copyright to the software produced by Johnny. However, if Johnny is not an employee but an independent contractor, then we have to decide if the work Johnny authored falls into one of the above nine categories. Software is absent from the list. So software authored by a non-employee cannot be a work made for hire.
Q: How do I protect my copyrightable work?
A: An original work of authorship is protected under U.S. copyright law the moment it is created and fixed in a tangible form of expression. Although not required, it is advisable to affix a copyright notice to your work. The notice may include the symbol © or the word “copyright” with the year of first publication and the name of the owner. The author may additionally register the copyright with the U.S. Copyright Office, which confers some additional advantages, including public record of copyright, statutory damages, and prima facie evidence of validity. Registration is also required prior to suing copyright infringers.
Q: It’s okay for me to use this picture I found online on my own website since I acknowledge the source, right?
A: Merely acknowledging the source of the copyrighted material is insufficient. What would be sufficient is when the owner of the copyrighted work gives you explicit permission to use or reproduce the graphics. If you are not able to obtain permission, use a different picture, or use pictures that are in the public domain. Be sure to carefully document the permission and do exactly what is asked by the owner. Further, in the case of photographs where a person is the subject matter, there also may be an invasion of privacy claim if permission from the subject has not been obtained.
Q: It’s ok for me to copy this picture since there is no copyright notice, right?
A: Under current U.S. law, the use of a copyright notice is optional, so the absence of a notice doesn’t necessarily mean that the work is free for all to use.
Q: If it’s on the Internet it’s public domain, right?
A: No. There are plenty of copyrighted materials that are accessible on the Internet. It would be very risky to assume that the owner gives you permission to use it.
Q: It’s fair use since it’s educational, right?
A: Fair use is a complicated doctrine and its application to your situation should be carefully analyzed. The Copyright Law identifies six instances in which copying is permissible: criticism, comment, news reporting, teaching, scholarship, and research. However, the analysis doesn’t stop there. The law also spells out four factors that should be considered:
· The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
· The nature of the copyrighted work
· The amount and substantiality of the portion used in relation to the copyrighted work as a whole
· The effect of the use upon the potential market for, or value of, the copyrighted work
Since there is no clear-cut answer, the recommendation is to be very cautious even if the purpose of your activity is educational. The legal advice of an experienced copyright attorney should be sought.
The opinion expressed herein is not legal advice for your particular situation. Please consult an experienced copyright lawyer.