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The Sincerest Form of Flattery ... And How to Protect Yourself From It

© 1999-2017 Elena Fawkner

I received an email the other day from an online friend alerting me
to the fact that someone had copied one of the pages of my
website and was using it, virtually verbatim, at theirs.  It was my
first personal experience of copyright infringement.  How flattering,
I thought!   I imagine though that when it happens a few more
times it will begin feeling decidedly less flattering and decidedly
more irritating.  We ARE talking about theft, after all.  So, that
got me thinking about how to handle such situations.  And THAT
got me thinking about copyright law and, in particular, how it
impacts on those of us running online businesses.  After all,
this is our livelihood we’re talking about.

In this article, I’m going to share the results of my research with
you.  Because we’re dealing with a technical legal subject here,
I want to preface this article with a strong disclaimer that I am
NOT giving you legal advice in this article.  This is simply the
result of my own research and you use or ignore the information
I’ve included here at your peril.  I neither assume nor accept any
responsibility for what you do with this information.  Also, this
article discusses United States copyright law.  If you live outside
the United States, check your local copyright laws.  Mind you,
if you're running an online business, because of the international
nature of the medium, the United States copyright laws are
relevant to you.

With that said, let’s get to it. We’ll look first of all at what
copyright is, what it does, what can and can’t be copyrighted and
who’s entitled to it.  Then we move on to look at how to protect
the copyright in your own work before, finally, dealing with how to
go about using others’ work without infringing their copyright.


In a nutshell, copyright is legal protection for the authors of original
literary, dramatic, musical, artistic and intellectual works.
Copyright protects both published and unpublished works.  Only
the copyright owner has the right to reproduce, sell, distribute and
perform the work publicly or to authorize others to do so.


Generally, only the author of the work can claim copyright to it.
There are a couple of relevant exceptions, however.  Firstly, if the
work is “work made for hire”, the employer and not the employee
is the “author”.  Work made for hire is work prepared by an
employee within the scope of his or her employment (as is work
prepared by an independent contractor provided that the contractor
has signed an agreement acknowledging and agreeing that the
work shall be work made for hire).  So, if you’re a website
designer employed by a design company, the copyright in your
work belongs to your employer, not to you.  Your employer is
the author of your work.


Copyright attaches to original works fixed in a tangible form of
expression.  So, for example, a dance routine created by a
choreographer and recorded in writing can be copyrighted
because the recording in writing fixes the work in a tangible
form of expression.  Were the choreographer not to record the
routine, however (whether in writing, on videotape or some other
tangible form of expression), and instead just kept the routine
in his or her head, the routine would not be able to be
copyrighted because the routine has not been fixed in a
tangible form of expression.


In addition to works not fixed in a tangible form of expression,
other types of works that can’t be copyrighted are titles, names,
short phrases, slogans and the like (trademark protection may
be available though); ideas (copyright protects only the tangible
expression of the idea, not the idea itself); procedures, methods,
systems, processes, concepts, principles etc.; and works
consisting entirely of information that is common property and
containing no original authorship such as calendars and facts
of the world.


Perhaps the most widely misunderstood aspect of copyright
law is that it does not require registration or publication to come
into existence.  Copyright attaches automatically once a work
capable of being copyrighted is “created”.  “Created” in this
context means when the work is fixed in a tangible form of
expression for the first time.

Under the copyright legislation, publication occurs when
copies are distributed to the public by way of sale, other transfer
of ownership, rental, lease or lending.  Note that a mere public
performance or display of work does not, of itself, constitute
publication.  So, just because you have a website available for
all the world to see, this does not mean that your website content
has been “published” for the purposes of copyright law.  On the
other hand, though, just because it hasn’t been published,
doesn’t mean that it doesn’t enjoy copyright protection!

As you can see from the definition of “publication”, creating and
making an e-book (for example) available for sale from your site
amounts to publishing in the copyright sense.  Once something
is published, it is mandatory to deposit two copies in the
Copyright Office within three months of publication in the United
States for use in the Library of Congress.  If you fail to do so,
you may be liable for a fine of $250.  Failure to deposit does
NOT, however, affect whether your work has copyright protection.
If you continue to fail to deposit your work after being notified to
do so, the fine increases to $2,500.  Although there are certain
exceptions to the mandatory deposit rule, none of them apply to
our e-book example.  For a full list of exceptions, see section
202.19(c) of the copyright legislation (37 CFR Ch. II).  It’s
available online at the United States Copyright Office at
http://www.copyright.gov/title37/.   So, if you’re selling an
e-book from your site, a set of “how to” reports, or whatever,
and you’re the copyright owner, you need to deposit two copies
with the Copyright Office.

As we have already seen, copyright springs into existence
automatically upon creation of work that is capable of being
copyrighted.  This is known as common law copyright.  In
addition to common law copyright, the copyright legislation
provides for statutory registration.  There are several advantages
to registering your copyright.  Firstly, it constitutes a public
record of your claim to copyright in the subject work.  Secondly,
registration is a prerequisite to an entitlement to sue for an
infringement of your copyright (if the works are of U.S. origin).
In other words, if your copyright isn’t registered, you can’t sue if
someone uses your work without permission.  Thirdly, if you
register your copyright within three months after publication or
prior to infringement, you’ll be able to seek statutory damages
and attorneys’ fees if you bring legal proceedings for infringement.
Otherwise, your damages are restricted to actual damages or
an account of profits generated by the infringer as a result of the
infringement.  In many instances of copyright infringement, you
simply will not be able to point to a financial loss in a specific
amount.  After all, if someone copies one of your content
webpages but you don’t suffer a financial loss and they don’t
obtain an obvious financial advantage, what’s your loss or their
gain in financial terms?  Registration allows you to recover
monetary damages in such circumstances.  Fourthly,
registration allows the copyright owner to record registration
with the US Customs Service for protection against the
importation of infringing copies of your work.

For detailed information about how to go about registering your
copyright, visit the United States Copyright Office at
http://www.copyright.gov/ .


Although a formal copyright notice is not required, it can be
useful.  Firstly, it puts the reader or viewer of your work on
notice that copyright does exist in the work and that alone may
make would-be thieves at least think twice before stealing your
work.  Secondly, if a copyright notice appeared on work in which
your copyright was infringed, then (subject to certain exceptions
- see s. 504(c)(2) of the copyright legislation available at the
United States Copyright Office website at
http://www.copyright.gov/title17/92chap5.html ) the offender
can’t claim innocent infringement in mitigation of damages.
Thirdly, it makes it easier for someone to track you down and
ask for permission to use your work!

The form of the copyright notice for published work is:

 © 2013 Jane Smith
 Copyright 2013 Jane Smith
 Copr. 2013 Jane Smith.

For unpublished work, the notice should read:

 Unpublished work © 2013 Jane Smith


For work created after January 1, 1978, the work is automatically
protected from creation until 70 years after the death of the author.
In the case of joint works, the copyright extends to 70 years after
the death of the surviving author.  In the case of works made for
hire and anonymous/pseudonymous works, copyright endures for
95 years from publication or 120 years from creation, whichever is
the earlier.


Copyright is a personal property right and can therefore be
transferred.  A transfer of an exclusive right will not be valid, however,
unless it's in writing and signed by the copyright owner or his/her
authorized agent.  A transfer of a non-exclusive right need not be in

As copyright is a personal property right, it can be bequeathed by
will or pass by operation of the law governing intestate succession
(the rules that govern if someone dies without leaving a will).


So much for protecting the copyright in your own work.  What are
the limits of how you can use the work of others without infringing
*their* copyright?

In short, unless “fair use” applies (discussed below) you will violate
the copyright owner’s copyright if you use all or any part of their
work (either as is or with trivial changes) in your work without prior

It is not an infringement of copyright, however, to use short
quotations from a work for the purposes of criticism, comment,
teaching, scholarship or research.  Any quotations used must
clearly identify the name of the author and the source of the
quotation.  Just use the same kinds of citations you used in your
college papers e.g. “ “this is an example of how to cite a quotation”
(Doe, J., “The Work That Is Being Quoted From”, 1988, page 23)” or
some other generally accepted form of citation.  Note, however,
that if your use is not fair use, then merely giving credit to the
author of the work won’t protect you.

As for what constitutes “fair use”, this is one of those gray areas
that depends on all the circumstances.  In general, the factors to
be considered include the purpose and character of the use,
including whether it is of a commercial or non-profit nature (if you
stand to make a profit on the use, the less likely it is that your
use will be considered “fair use”); 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 and value
of the copyrighted work.  For example, if you use a tiny part of a
work but that part was, until you used it, confidential information
taken from a book that was shortly to be published, that may not
be “fair use” because you have effectively undermined the potential
market for and value of the book.

As a rough guide, bear the following rules of thumb in mind: first,
if you’re creating something new rather than merely copying
someone else’s work, your chances of falling within the “fair use”
defense are relatively better; second, don’t compete with your
source; and third, less is more.  The more you take, the less “fair”
your use.


Although the above issues relate equally to the online world as
they do offline, there are some additional issues that webmasters
need to think about in the copyright arena.

Firstly, just because you can download something for free doesn’t,
of itself, mean you can redistribute it freely.  Clip art is a good
example.  There are numerous sites that offer free clip art.  These
sites allow you to download some of their clip art images free of
charge.  You can use these images for your own purposes in
developing your webpages, for example, but just because they’re
free does NOT mean you can then turn around and make the
images available to someone else for free or otherwise.  Under
these sorts of download arrangements, you’re given a restricted
license only.  The same goes for free e-books.  Check whether
the author of the e-book has granted permission for it to be freely
distributed.  Most do.  Usually you’ll find some reference to
further dissemination of the work on the cover or the first page of
the e-book.

Secondly, consider not deep linking.  Deep linking occurs when
you link to another site from your site but, instead of linking to
the home page of the other site, you link to a page within the site.
Some webmasters object to this because it can confuse the site
visitor about exactly whose site it is that they’ve come to.  On the
other hand, linking to a home page can be inconvenient for the
site visitor.  I know of one ezine publisher, for example, who
frequently includes links to articles written by other people in her
ezine.  It irks her when people just give their home page URL rather
than the URL of the article itself.  She reasons, why should her
readers have to go hunting for the article?  If they’re impressed
with the writing, they’ll naturally want to stop and look around the
site.  Clearly there are both pros and cons of deep linking.  Make
up your own mind.

Finally, a word about frames.  If you use frames on your website
so you can display content from other websites without it being
obvious to the site visitor that they’ve gone to someone else’s site,
this very fact may land you in trouble.  If your actions lead the
site visitor thinks the content they’re viewing belongs to your site,
you’ve probably just contravened the copyright of the owner of the
site you’ve linked to with your frame!

Registering your copyright is the first step to protecting the
benefits of your hard work and endeavor.  There are, unfortunately,
plenty of people online today who have somehow got the idea
that everything online is free and up for grabs.  As a result, it’s
more likely than not that one day you will have to grapple with the
unpleasant reality that someone has stolen your work.  Depending
on the nature and extent of the infringement, you may be forced
to take legal action.  If you haven’t registered your copyright you
won’t be able to do that.  But more importantly, your work has
value.  You’ve made an investment in terms of your time, effort
and talent.  You wouldn’t leave your front door open for thieves to
walk in and steal your stereo.  You worked hard for the assets
you have accumulated.  So it is with your creative works.  They
are as much assets as anything else you own.  So get your
copyright registered and close the front door to the thieves who
would help themselves to what you have worked so hard to create.

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