Copyrights and Fair Use Doctrine
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By Jean D. Silfleet and Denise Annunciata

Copyrights are governed by the U.S. Copyright Act (17 U.S.C. §§ 101 – 810) which generally protects architectural design, software, the graphic arts, motion pictures, and sound along with books and other “writings”. Every tangible expression is not copyrightable. In order to be subject to copyright protection, a work must have sufficient modicum of originality.

A copyright provides the owner with the exclusive right to license, reproduce, perform, display or distribute the protected work or derivatives thereof. To be covered under copyright laws, the works must be original and tangible. Work subject to the Copyright Act is protected whether or not a copyright notice is attached to the work and whether or not the work has actually been registered with the Copyright Office of the Library of Congress (although registration enhances the level of protection provided). The Library of Congress contains more information on copyrights and forms.

Filing a Copyright

To file a copyright, the correct form must be completed and forwarded to the Copyright Office of the Library of Congress together with a copy of the work and the appropriate filing fee. The use of a copyright notice for work published on and after March 1, 1989, is optional. A copyright notice is sufficient by using the copyright symbol together with the years the copyright has been in effect next to the copyright owner's name, such as:

© [YEAR(S)], [COMPANY NAME]

Ownership
Copyright ownership vests in the author of the copyrightable work. Work made for hire is an exception to the author ownership. Generally, in a work made for hire, an agreement governs property rights and assigns such rights to the company.

Term of a Copyright
A copyright, filed after 1978 is valid for the life of the author plus 70 years. For works made for hire, anonymous work or pseudonymous work, a copyright expires 95 years after the date of its first publication or 120 years after the year of its creation, whichever occurs first.

Assignment and Renewals
Transfer of a copyright must be in writing and filed with the Library of Congress within one month of execution. For more information on transfers and assignments of copyrights see Circular 12. For renewal information, see Circular 15.

Supplementary Copyright Registration
Under section 408(d) of the copyright law (17 U.S.C.) supplementary copyright registration can be submitted in order to correct or complete incorrect or incomplete information. The filing of a supplementary copyright registration does not change the original filing but supplements the registration and is cross-referenced. A Copyright Form CA is used to file a supplementary copyright registration.

More information regarding terms and regarding renewals.

Derivative Work

A typical example of “derivative work,” is work that is primarily original work but incorporates some previously published material. The inclusion of previously published material makes the work a "derivative work" under the Copyright Act. Derivative work can also include new versions of previously published works, such as art reproductions and new translations. A "derivative work" must contain substantial original material and be different enough from the previously published work to constitute “new work” in order to be copyrightable.

"Fair Use"

Copyright law makes it illegal to copy, display, publish, perform or create derivative works of copyrighted material without the permission of the owner. Most of the content on the Internet is covered by copyright law (including text, images, music). Copyright law does not protect the idea or the facts; it only protects the way an author expressed him/herself.

What is the "Fair Use" Doctrine?
The rights of the copyright owner are limited by the "fair use" doctrine, which allows reproduction of copyright protected materials under certain circumstances. Unfortunately, there are no clear-cut rules for what is "fair use." There are no "safe harbors" such as specific number of words or percentage of content.

Rather, there are factors that are used to determine "fair use":

(1) Purpose and character of the use. Is the use commercial or non-profit? Commercial use is less likely to be "fair use." "Fair use" is more likely when the use is to illustrate, comment, criticize, or educate.

(2) Nature of the copyright work. Is the work factual or fictional? Factual use is more likely to be "fair use."

(3) Amount and substantiality of the portion of the work used. The courts have found that using 300 words of a 30,000 manuscript of President Ford's memoirs was the "heart of the book" and contributed to the conclusion that it was not "fair use".

(4) Effect on the potential market value of the copyrighted work. Will your use diminish the potential revenue for the copyright owner? If there's financial harm (loss of revenue to the copyright owner), then it's probably not "fair use."

No Clear Rules. Suggested Guidelines.

While there are no steadfast rules, the following guidelines may help in evaluating whether your use is within the "fair use" doctrine.

1. Quote accurately and briefly. (Word-count guidelines - such as 250 words or less - are not a safe harbor).

2. Commercial use is less likely to be "fair use."

3. Fictional works receive more protection than factual works.

4. "Fair use" includes activities such as criticism, comment, news reporting, teaching and research.

Uncertain? Get Permission.

Getting permission of the copyright owner can be difficult and costly. It can be difficult to identify the owner, which can be an author, photographer or a publisher. There are on-line copyright "clearing houses". For example, Getty Images, makes it easy to obtain the rights to use images and photographs and to determine what is royalty-free or what the royalty payment is. Other on-line sources include Copyright Clearance Center, and Music Library Association (MLA).

In conclusion, if you're using someone else's work in any manner including linking to a web site, copyright issues exist. Be careful to quote accurately, give credit and add value by comparing, criticizing or commenting on the work. If use is extensive, permission should be obtained in writing.

Additional Questions

Additional questions and information can be obtained at the Library of Congress.

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About Jean D. Silfleet, Esq. and CPA: Jean advises business owners and entrepreneurs about how to avoid legal pitfalls. She holds a BA (cum laude) from Ohio University and a Juris Doctorate from Boston University School of Law. She is a Certified Public Accountant and a member of the Bar in Massachusetts. More information can be found at SmartFast.