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COPYRIGHT ISSUES AND THE INTERNET - from Minnesota Business Lawyers

To review the full text of copyright laws click here. To purchase forms to apply for your own copyright, Click Here

Generally speaking, copyright law is extremely vague and ambiguous. Much of copyright law depends on how copyrighted materials are used, not "if" they are used.  Since the internet is structured for the free flow of communication, copyright issues related to the internet are even more confusing.

What is a Copyright?

A copyright is the legal recognition of ownership rights related to a tangible "expression." "Tangible" means that it can be attached to something like a canvas, paper, tape or film, and that it capable of being duplicated. An "expression" is the presentation of an idea, not the idea itself. A copyright gives its owner exclusive rights to:

  • reproduce the work;
  • make derivative works based on the original work (eg. a sequel to a movie, a remixed version of a song, a play based on a book).
  • distribute copies of the work;
  • perform or display the work publicly.
How do I Get a Copyright?

A Copyright does not require that you make a filing with the Library of Congress. In fact, it is not even necessary to add a copyright symbol to your work to have copyright protection. Any expression that is written or recorded and is substantially different from any other "expression" in the public sector is automatically protected by a copyright. A copyright provides the owner exclusive ownership to control reproduction and distribution of the expression. This protection lasts from the date the expression is exposed to the public until 50 years after the death of the author.

Why are Copyrights Filed?

Copyrights may be filed for a small fee with the Federal Copyright Office: Register of Copyrights Copyright Office Library of Congress Washington, D.C. 20559.

Copyright registration is a legal formality intended to make a public record of a copyright. Oftentimes this is done to avoid disputes related to when an expression was created and who has ownership rights. A registration establishes prima facie evidence in court of the validity of a copyright. If the copyright is not recorded, it may be difficult to prove the date of the expression's creation and its ownership rights.

Additionally, if a copyright is filed within 3 months after a work has been published or prior to an infringement, the owner is entitled to attorneys fees and statutory damages in addition to an award of actual damages. It is for that same reason that copyright symbols are applied to various works.

Applying a copyright symbol to a work is the responsibility of the owner and does not require advance permission from the copyright office. Significantly, a copyright symbol provides notice to the general public that a work is protected by copyright laws which may prevent reproduction.

What is a Copyright Violation?

Copyright violations have been the subject of much litigation and interpretation. With regard to the internet it continues to evolve. Generally speaking, a copyright is violated when someone without the authorization of the owner displays or makes copies a work exactly or with some minor changes. As the large intimidating FBI WARNING at the beginning of movies from the video store tells you, copying the videotape violates copy right law. By the same token, if you purchase software for your computer and e-mail it to your friends, you have violated copyright laws. Even the e-mail you send to a friend or the web page you've created may be considered copyrighted. In fact, this is the subject of recent litigation.

The rock group Metallica sued a software company that has created a program which allows the user to search the internet and download MP3 files. MP3 files are copies of studio recordings. The basis for Metallica's suit is that the software maker knows that its program is being used for this purpose and, in fact, can have no other purpose and, as direct result, violates copyright laws.

A copyright is not violated if it has "fair use." What constitutes "fair use" is not clear. "Fair Use" is determined on a case by case basis. Fair use includes copying and distributing that has been explicitly authorized by the copyright owner (you may have seen images or articles online that include permission to copy). By the same token, authorization to make copies may be implied by circumstances.

What is Fair Use?

As we stated, fair use includes making reproductions that are expressly allowed. Permission to make copies may also be inferred from the circumstances.

  • If your friend sends you and three other friends an e-mail about his or her view on politics, a reasonable person would assume that the author is allowing the recipient to forward the message to others. This may grant an implied license.
  • If a lawyer writes an article about "Copyrights on the Internet" and posts it on his firm's web page, a reasonable person would assume it's copyrighted. (Note: This lawyer gives you express permission to distribute this –just make sure you give proper credit)
  • What if a person visiting this web page leaves a message on the discussion list. It's not clear whether reasonable people would assume that they're allowed copy the question or the answer and forward it on to others. To determine this it may depend on the nature of the discussion list. Is it open to the general public or to members of a list? Does accessing the discussion group require a password?
Even if an implied license is granted, it may ALWAYS be canceled if expressly revoked by the author.

HTML code or java script used to create a web pages have copyright protection. If you are like me, you may have learned to create your own web page by viewing the code from other pages and using your "cut" and "paste" functions to apply the code to your own page. Does this violate copyright laws?

Absolutely!

However, browsers like Netscape Navigator and Microsoft Explorer have always had commands which allow viewers to examine the source code of web pages on the internet. Since lines of code may be repeated in many web pages, determining copyright protection or violation may be difficult unless the code is extremely original.

In order to determine "fair use, not only must the intent of the author be determined, but also the use of the expression by the person making the copy.

  • Is the use commercial or noncommercial? (Does the person making the copy derive financial gain.)
  • What is the nature of the work? Is the copy used as a foil for criticism or has it been transformed into a parody, news, or an educational tool?
  • Is the copy of the entire work or only a portion original work?
  • Is the copy relating the main subject of the original work or only an insignificant part that has been expanded?
  • Does the copying or distribution affect the economic rights of the work's owner? (Does it displace sales - like copying miscellaneous CD's or videotapes.)
There is no clear rule to determine what is fair use. It is determined on a case by case basis. If you are concerned about the violation of your copyright or your violation of someone else's rights, it is important to consult with an attorney.

Remedies for Copyright Infringement.

Remedies for copyright infringement include:

  • Temporary and final injunctions preventing further use or reproduction of the copyrighted work;
  • Impounding and disposition of the infringing materials;
  • An award to the copyright owner of damages and profits derived from the infringement. This may include statutory damages and attorneys fees;
  • Criminal sanctions.
To review some of the case law existing in the area of copyright law Click Here.
FOR MORE INFORMATION ON FORMING YOUR BUSINESS CALL YOUR BUSINESS ATTORNEY MAURY D. BEAULIER at  612.240-8005

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