A Quick Primer On Copyright

Tuesday, October 9, 2012 by John Henry

So there’s this whole kerfluffle happening among liberal Facebook pages because Matt Desmond (of whom we have spoken here at great length before) is finally getting his ass nailed for his constant misappropriation of other people’s work to drive content to his site.

I’ve pretty well talked myself out on the primary issue there and really don’t have anything to add to it that I haven’t already said repeatedly, so I won’t. 

BUT:  There seems to be a LOT of confusion out there about copyright issues, with all kinds of “jailhouse lawyers” stepping up to assert their (completely misinformed) opinions about how copyright works.

Since I’ve dealt with copyright issues myself for a number of years, including one successful legal injunction and a whole lot of studying and research on the issue that involves actual legal precedents and laws rather than just repeating stuff my sister’s third cousin’s girlfriend’s ex-husband’s mom heard from a guy she knew who was in a band once, I thought I’d try to offer some actual fact-based guidance for those who are interested in hearing it.

Disclaimer:  I’m NOT a copyright lawyer and I don’t claim to be.  I’ve just done a hell of a lot more research on it than the average lay person – enough to see that there’s a huge amount of disinformation/misinformation floating around about it.  If you need legal advice about copyright issues, contact an attorney who specializes in them.

Myth:  It’s not copyrighted if it has no notice

Fact:  A notice such as the © symbol or the phrase “All Rights Reserved” has not been necessary for about thirty years now.  Copyright attaches automatically on publication.  Or, to quote directly from the US Copyright Office:

When is my work protected?

Myth:  It’s not a copyright violation if it’s not being sold

Fact:  Money has nothing to do with copyright protection status.  NOTHING.  It certainly can result in recoverable damages if someone steals your work and can be shown to have profited from it, but that does not mean the work isn’t protected if the person who stole it doesn’t sell it outright.

Myth:  Any work that builds on prior work which is in the public domain is also in the public domain

Fact:  This is entirely untrue.  Public domain works from which derivative works are created are owned by whoever created the derivative works.  Take my “campaign posters” for example.  These are made using images from the Library of Congress which are in the public domain.  I can’t claim a copyright on those images, however I do have a legitimate ownership right of the derivative works created from them.  If you share the source images without my text on them, there’s nothing I can do.  If you share the images with the text that I added on them, I have legitimate grounds for a copyright complaint or DMCA action.

Myth:  Any work that builds on a Creative Commons license is also covered by that license.

Reality:  There are a pretty wide variety of CC licenses.  Some of them include the “-SA” (share-alike) or “-BY” flags, meaning that the owner of the licensed material only agrees to license it to the public if the derivative work is released under the same license, or if credit is given to the original creator (“cc-by”).  This is a matter of what each individual creator decides for their individual creation.  Some material on Wikimedia Commons, for instance, has been released into the public domain by the creator (meaning that it can be used in any way that anyone sees fit, so long as they don’t claim a copyright on the original material).  Other material is released under conditional Creative Commons licensing. 

Content Creators are strongly cautioned against assuming that any image they find on a Wiki site is in the public domain.  On the other hand, there is also no basis on which to assume that any image used from Wiki is under a conditional license.  License information for images in Wikimedia Commons is included on the page of that image, and it applies on a case by case basis.

There are several other variants of the Creative Commons license, including things like prohibition of derivative works or disallowing commercial use (and including the “CC0” license, which is a public domain release), which you can find explained in more detail at the Creative Commons License Information Page.

Public Domain

It is not always necessary to for a content creator to release something into the public domain for it to be public domain.  Content created prior to 1924 (as of this writing) is automatically in the public domain.  Content created by a government employee in the course of their employment (such as all those images I talked about earlier, or the standard photo of your average US congressperson standing in front of a flag, such as the one I used in the John Fleming article) are automatically and immediately public domain.  Again, derivative works created from public domain images are NOT in the public domain.

Addendum:  Fair Use

(I originally forgot to address this.)  “Fair Use” is a principle of copyright law that allows for the use of copyrighted material, without permission, for certain specific purposes.  These purposes are generally classified as:  education, commentary, and parody.  While even the US copyright office concedes that “[t]he distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined,”  in most cases a little common sense will go a long way.  If I’m writing a commentary about a print advertisement, I can reproduce that advertisement in the body of the commentary; that’s fair use.  If I see a photograph from the AP wire that just begs for a satirical or parodic text overlay, that’s fair use.  If I want to use a chapter of “Catcher In The Rye” to illustrate a particular point about popular media to a class I’m teaching, that’s fair use.

If you turn around and take that AP photo with my satirical text overlay, clip my name off it, and post it to your site for the purpose of driving traffic to your own site, that’s not fair use; my original, copyrighted content is contained within the parody or satire, and you have unethically appropriated that original, copyrighted content.

The End

Since I really, really don’t care to continue repeating myself in regards to specious arguments like “what difference does it make, it’s just a meme” and “we’ve all got to stick together, criticizing other liberal pages a month before the election is just what the Republicans want,” this is where I’m going to leave it.  Those issues have been dealt with, and those who continue to “not get it” will just have to continue not getting it; it’s been explained to death at this point.  The purpose of this article is to correct some gross misconceptions about copyright law and how it works, and I hope you find it useful.  The end.

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