Create | Consult | Control

Steve O'Donnell, Ph.D. Registered Patent Attorney

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Only one thing is impossible for God: To find any sense in any copyright law on the planet.
Mark Twain
Ok, maybe things aren't quite as dire as Mark Twain said, but he really wasn't far off.

Copyright is one of the more confusing, and confused, areas of law. Unless all you're doing is a basic copyright registration, this is really an area where you need to seek help from someone that works in this field.

Below I've compiled some of my most common questions about trademarks. Contact me for more specific answers.

  • What does a copyright protect?
    Copyright protects original works of authorship like literary, dramatic, musical, artistic, and certain other works. That usually translates to art, but rather dry text such as this, and computer code can also be protected.
  • Do I have to register my copyright?
    Not really. As soon as you create something that's eligible for copyright protection, it's copyrighted. As I'm typing this I'm creating a copyright in my work. But, there are big advantages to filing with the copyright office and paying the fee to have it recorded.
  • Why should I register my copyright?
    If you don't register a copyright and someone infringes it, your recovery in court is probably just going to be actual damages and an injunction. After you calculate the time and expense of litigation, even simple litigation, it might not be worth pursuing a claim. If someone infringes your registered copyright you can recover statutory damages of between $750 and $30,000 per work, and possibly recover your fees and costs of bringing a lawsuit.

    If you think there's any chance of your work being infringed, register it. Certain works are more likely to be infringed than others. The photos you post on Facebook are probably low-risk of infringement unless they’re particularly funny, while things like music and movies probably have the highest risk.
  • Do I have to mark things with ©?
    Nope. There is no requirement in the US for things to be marked.

    But, If you do mark your works, an infringer will have a difficult time convincing a judge that an infringement was an innocent mistake, and marking might give you some advantage in other countries. It's not useless to use the mark, but not marking a work probably won’t hurt either.
  • Help! I've been accused of copyright infringement!
    Call me. Penalties can be severe, but often these types of things can be settled outside of court.
  • What is this I see online about Copyright Trolls?
    A copyright troll is usually defined as someone who has litigation as a business mode. They might copyright something and then encourage infringement by posting it online and then go after people that download it. In something like that, the sale of the copyrighted material is almost secondary to the primary business of suing people. Usually the defendants of trolls are individuals and small companies, and the techniques are usually heavy-handed.

    Often the term is also used (improperly in my opinion) against someone that's just trying to protect their business from hemorrhaging copyrighted content.
  • Can I file my own copyright registration?
    Often the answer is yes. Forms and an online portal are available at copyright.gov. It's fairly easy if the person filing is also the author and there are no co-authors. If multiple people contributed to the work, or the copyright itself has been assigned to someone else, then I'd suggest having someone analyze the situation and determine what needs to be done.
  • Hey, someone stole my content and put it on their website! What can I do?
    You might be surprised just how often this happens.

    Often this occurs when a site scrapes contact from blogs and reposts it, hoping to drive traffic to their site and result in some ad revenue. Other times, the web designer needed some content for a layout but didn't want to use Lorem Ipsum, and they forgot to remove it before the site went live.

    More rare is when someone purposefully steals content, but it happens.

    Usually, if the infringement was either because of a content scrape, or because of a mistake, the site owner promptly responds and takes care of it. If they don't, we can send a takedown notice to their service provider. In exceedingly rare instances, a lawsuit is in order.
  • What is a Pauper's Copyright?
    This is when you'd mail a copy of your work to yourself and keep it sealed. The thought being that it will have a date stamp from the post office and that you can have a judge dramatically open it during a copyright infringement trial and win the case because you've shown yourself to be the first, true author.

    It's also worthless. Don't bother. It's a waste of a stamp.
  • What is fair use?
    There are certain uses of copyrighted materials that aren't infringement. Those exempted uses are very narrow, and almost universally misunderstood.

    First, fair use only applies if the reason for the copying is criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. If it applies, then a court will look at

    • The purpose and character of the use, including whether such use is of a 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; and
    • the effect of the use upon the potential market for or value of the copyrighted work.

    So, saying something is fair use because you've identified the (presumed) copyright owner isn't going to save you. Similarly, using copyrighted material to create something new which you give away (like a YouTube mashup) doesn't mean you have the rights to do it.

    In short, it's not always an easy test to pass. I wouldn't suggest anyone rely on their determination of fair use without a legal opinion.
  • Can I use this song for my [wedding video, promotional DVD, YouTube compilation of cat videos, etc]?
    Most events have some music in the background and recording video of the event will also record the music. This is probably copyright infringement of the music, and might also be infringement of any visual art incidentally recorded.

    Taking a picture of some visual art the author put up at your favorite coffee house is also probably copyright infringement.

    Playing your car stereo loud enough so that someone on the street can hear it is probably copyright infringement.

    Will anyone care enough to sue? Doubtful.

    That changes if you're using the copyrighted thing in a more commercial way. That gets content owners a lot more angry.

    So, if you're using the song as background in a commercial or promotional video, be prepared to get a threatening letter and have to stop using it.

    Consider those websites that auto play music when you visit. Let's say the song they're playing is yours. If it's used on a personal blog, you might not care since it's not like they would have paid for a license anyway and they're not making money from it. If it's being used by a big corporation, one that's making money from their site, and one that could have afforded to pay you, well...that's different.
  • I own a bar and we have a jukebox and live bands. What do I need to know?
    You'll need to get a license from one or more of the licensing organizations like ASCAP or BMI to keep from running into trouble. Performance rights (even of a CD or the radio) are covered by copyright.

    If you don't have a license and received a letter from a licensing organization, call or email me. This isn't a problem you want to ignore.
  • I want to put a few TVs up in my bar for the big game, what do I need to know?
    Whether or not you can do this or not, without a license at least, depends on how big of a place you have, how many TVs, where they are, and how big they are. It can be confusing. I suggest contacting me about this to make sure you're in the clear.
  • How do I get pictures for my website?
    I've used istockphotos and ingimage, but there are plenty of places that will sell you stock photos and some where you can get free stock photos. The prices typically aren't that bad, depending on what you want and why you want them. You can also look for Creative Commons licensed works which often have no, or little, restriction on their use, and are free.

    One thing you don't want to do is just right-click a photo you like to save it for use on something else. Some stock photo services are looking for their images being used and are targeting people that use them without having a license. It is so much easier to have things in order from the start rather than respond to the threat of a lawsuit.
  • But everybody else does it [file sharing, copying ‘free’ content from the internet, making copies of works, using unlicensed music].
    Well, if everyone else was jumping off the bridge would you do it? Sorry, I’m a dad. I couldn't stop myself.

    The possible consequences of infringing copyrights are much greater than the cost to rent a movie, license a photo, buy a download, etc. It’s tempting, I know. But you can never be sure if the file your downloading is being monitored for possible litigation.