March 7, 2012
Mark Bellamy LL.M
SJD candidate 2013
Copyrights in the digital age:
This article was originally written by me for visual artists, online gallery and forum owners and operators. Therefore, it applies to the "GOLDEN AGE" forum for digital comics as well. This forum is ...by legal definition... a repository, a digital museum, a digital library and gallery. What I write here is not legal advise nor should it be construed as such. It is a best practices approach based upon my education and teaching. It is a compilation of research into copyright law as an educator and artist, and how I have had to deal with it when making my art and , or when working for attorneys and publishing houses.
Most of the law, whether statutory or enacted by juris prudence judicial decision, that applies to intellectual property will never apply to this forum or any other forum like it. The issues at hand here involve public display and the making available for download of particular materials that include textual reference and images previously published and owned by another.
Issues at hand:
Copyrights generally and specifically.
trademarks .. maybe but unlikely
I presume that we are all adults here and contain varying degrees of forthright...ness with in our personalities. So, we know not to lie, cheat , steal or to appropriate through conversion[conversion...the civil equivalent to criminal fraud generally]...
We all are to some degree, familiar or should be familiar with what copyrights are and how they apply in the United States and other countries that have joined the Berne Convention. I really do not want to rehash this subject, but it seems that no matter how well explained, someone still tries to circumvent the regulations and rules we all must adhere to. So , to a degree, I must provide you all with the necessary blah...blah blah verbiage.
What is copyright in the United States?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. http://www.copyright.gov/help/faq/faq-general.html
and here http://www.copyright.gov/
and here as well specifically about duration http://copyright.cornell.edu/resources/publicdomain.cfm
and copyright in the UK: http://www.copyrightservice.co.uk/copyright/p10_duration
Search theses links about other related issues like fairuse here: the copyright questions and answers blog..http://copyrightanswers.blogspot.com/
and these 2 from SU LAW http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/
What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."
How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”
For the most part, the business you conduct here will never overlap into trademark and patent law. Not to say that it cannot apply, just that it most probably will not.
and again from
BYU copyright 101 http://lib.byu.edu/departs/copyright/tutorial/module1/page4.htm
Basically, anything you need to know can be understood from the information above. Some of it may actually need a legal philosophical discussion with an analysis of a particular case law and opinion and if necessary, I will entertain this, but only if it becomes necessary for your continued understanding.
So, to the best of your ability, search and check the copyrights on everything you wish to post and make available and when in doubt leave it out and seek further opinion. Better to err on the side of caution.
this is a very good blog about public domain material I urge you all to read and try to understand that which is contained within this link and all the others http://www.publicdomainsherpa.com/index.html
and Every legal scholar has a different opinion but this is fairly easy to understand as well http://copylaw.com/new_articles/PublicDomain.html
The thing I most want to talk about here is what legal scholars call "copy-fraud"
From wikipedia: http://en.wikipedia.org/wiki/Copyfraud
"Copy fraud is a term coined by Jason Mazzone (Associate Professor of Law at Brooklyn Law School) to describe situations where individuals and institutions illegally claim copyright ownership of the public domain and other breaches of copyright law with little or no oversight by authorities or legal consequence for their actions."
Lots of organizations and people do things like this i.e. republish a public domain comic and change nothing about it and claim copyright over something which has no copyright protection.
Again from the same above wiki link: "Mazzone argues that copy fraud is usually successful because there are few and weak laws criminalizing false statements about copyrights and lax enforcement of such laws and because few people are competent enough to give legal advice on the copyright status of commandeered material.
In the U.S. Copyright Act, only two sections deal with improper assertions of copyright on public domain materials: Section 506(c) criminalizes fraudulent uses of copyright notices and Section 506(e) punishes knowingly making a false representation of a material fact in the application for copyright registration.:1036 Section 512(f) additionally punishes using the safe harbor provisions of the Digital Millennium Copyright Act to remove material the issuer knows is not infringing. But apart from these two sections, the U.S. Copyright Act does not provide for any civil penalties for claiming copyrights on public domain materials, nor does the Act prescribe relief for individuals who refrain from copying or pay for copying permission to an entity that engages in copy fraud.
Section 202 of the Australian Copyright Act 1968, which imposes penalties for 'groundless threats of legal proceedings', provides a cause of action of any false claims of copyright infringement. This should include false claims of copyright ownership of public domain material, or claims to impose copyright restrictions beyond those permitted by the law.
Legal scholar Paul J. Heald, in a 1993 paper published in the Journal of Intellectual Property Law, explored the possibility that payment demands for spurious copyrights might be resisted under a number of commerce-law theories: (1) Breach of warranty of title; (2) unjust enrichment; (3) fraud, and (4) false advertising. Heald cited a case in which the first of these theories was used successfully in a copyright context: Tams-Witmark Music Library v. New Opera Company. In this case
[A]n opera company purchased the right to perform the opera The Merry Widow for $50,000 a year. After a little more than a year of performances, the company discovered that the work had passed into the public domain several years before due to a failure on the part of the copyright holder to renew the copyright. It ceased paying royalties, and after being sued by the owner of the abandoned copyright, counterclaimed for damages in the amount paid to the owner on a breach of warranty/failure of consideration theory. The trial court awarded the opera company $50,500 in damages, and the court of appeals affirmed the judgement, finding that The Merry Widow "passed, finally, completely and forever into the public domain and became freely available to the unrestricted use of anyone....New Opera's pleas of breach of warranty and total failure of consideration were established, and by undisputed proof."
In 1984, Universal Studios sued Nintendo to stop them from profiting on their new Donkey Kong arcade game, on the basis that Donkey Kong was too similar to King Kong, which they owned. In the end, Nintendo's lawyers showed that Universal had argued against RKO General in 1975 that King Kong was in the public domain. Nintendo also won the appeal, a counterclaim, and a further appeal.
The American Antiquarian Society web site states that images of its archived printed materials from the 18th and 19th centuries (now automatically in the public domain due to age) "must be licensed by the society in consequence of its proprietary rights."
You can find people all over the Internet , like flickr for instance, where the scan in a public domain image and they claim absolute copyright in the images. These kinds of things cannot survive any claim as they lack originality, they lack even minimal creativity, they cannot even be considered transformative and derivative thereby making a claim for "transformative new creative works."
I hope that this helps in some fashion and I will discuss this further if necessary.
be well all.....
P.S.Title 17 of the United States Code
§ 506. Criminal offenses6
(a) Criminal Infringement. —
(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —
(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —
(i) the copyright owner has a reasonable expectation of commercial distribution; and
(ii) the copies or phonorecords of the work have not been commercially distributed; or
(B) a motion picture, if, at the time of unauthorized distribution, the motion picture —
(i) has been made available for viewing in a motion picture exhibition facility; and
(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.
(b)(b) Forfeiture, Destruction, and Restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.
(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.
(e) False Representation. — Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.
(f) Rights of Attribution and Integrity. — Nothing in this section applies to infringement of the rights conferred by section 106A(a).
§ 507. Limitations on actions7
(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.
(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
§ 508. Notification of filing and determination of actions
(a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notification to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration number of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed.
(b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court.
(c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Office.
§ 509. [Repealed]8