Beware of Copyright Infringement!

Not too long ago, I found a tiny cartoon online that suited my blog content. I naively inserted it into one of my posts, read by less than 20 people. A few months later, I got a legal notice making me feel like a master criminal about to be tried in the World Court. I (horrors!) infringed. A mere payment of $395, however, would forestall the public hanging.

Whoa! What? Was this a scam?

Good citizen that I am, I immediately removed the offending cartoon, apologized profusely to the litigant, and expected to live happily ever after. Then, they contacted me again to inform me that apologies are not currency, and I had committed a crime, therefore pay or die, or something to that effect. They contacted me relentlessly. Each missive was direr than the predecessor.

How could they do this to me?

I was innocent of malice, an innocent blogger. I did not know how serious copyright infringement can be and that there are those who profit nicely from finding innocent offenders.

Yup. It’s the law. They can do it to you.

In short, you must know this:

1. A copyright is granted automatically to the originator. Basically, you write it, you own it. That’s pretty simple. Registration, notice, and publication, though recommended, are no longer required by U.S. law. Boom. Write it; it is yours.
2. Fair use is a defense to a claim of copyright infringement in the United States, but its validity depends on the factors and circumstances surrounding the use. Pretty complicated.
3. Just because content is made available publicly does not mean that it exists legally in the public domain and is free of copyright protection.
4. The easiest way to avoid copyright infringement today is to simply always assume that a given work is protected by federal copyright, unless you can reliably confirm that it is not. This is especially important with information found on the Internet. If you can find it, chances are someone owns the rights to it.

In long, here are details:

There is a huge amount of content being generated daily. According to WordPress , over 409 million people view more than 22.2 billion pages each month currently. Because of the sheer volume of written articles, completely original content that comes entirely from the mind of the writer is getting harder to produce. Nonetheless, a writer must be diligent to ensure his work is not a deliberate or inadvertent duplication of another’s written thought.

Before taking a pen in hand or tapping on a keyboard, writers must understand the difference between copyright protected works and public domain information. A copyright protects original works of authorship such as articles, artistic performances, photographs, music, poetry, songs, computer software, and architecture—it doesn’t protect facts, common knowledge, ideas, or systems, general considered in the public domain. The owner of a copyright has exclusive rights to reproduce, distribute, display, and prepare derivative works based on the protected material.

In the U.S., works do not need to be registered with the national copyright office to be protected because the author of the work is automatically protected by the law. The Berne Convention dictates that all members get more or less equal treatment. Therefore, without written permission from a copyright holder, if you copy a protected work and post it on your blog, you may be infringing someone’s copyright and may be exposed to legal liability.

Wait! It gets worse:

Crediting an author does not negate copyright infringement. While we may assume a credit to the author should suffice, but nope! Crediting the author and providing a link to the original work although a nice shortcut, is simple insufficient.

You can only use copyrighted work with express permission from the rightful owner. Crediting an author will save you from accusations of plagiarism, but plagiarism and copyright infringement—although similar—are different. Only the infringement is legally actionable, but plagiarism will hurt your good name. And both can subject you to painful consequences.

So how do you avoid being an infringer?

Simple. License the work you want to use from the copyright owner. Some copyright holders will grant a license for the reproduction or publication of their work simply for the asking; others will charge for usage. Some rights-holders dedicate their work to the public, through a Creative Commons license, or a similar mechanism.

If that is too much trouble, just don’t use that work. Forget it; create your own original thought.

How to tell if something is free to use?

• Check the website for a distribution license or the RSS feed to learn if the work is available for the taking.
• If that doesn’t work, search the Creative Commons website or fill out the online request form on the Copyright Office website.
• TINEYE provides a tool to scan the internet for image or text ownership. Others are also available.
• If your source is readily found online, you will need to do extra diligence to locate and reach the rights-holder and seek a license, if necessary.
• If you cannot get permission, you are taking a chance and can be guilty of infringement.

And, oh those trademarks!

The purpose of a trademark is to distinctly brand a product or service. Therefore, trademark holders are quite protective of their mark and they zealously protect their brand. They do not want confusion of their product with any other. For a complete breakdown of the differences between trademark and copyrights, watch the cool video on the website of the US Patent Office which I am afraid to reprint here because, you know…

But there are subtleties here too. You cannot take your own sneaker and identify it as a NIKE™. But can use the trademark for other purposes like, comparative advertising. You can say DonnaSneakers are better than NIKE™. Just make sure you’re really comparing, and not trying to trade on someone else’s mark. Just like in copyright law, this is nuanced analysis, so be diligent and careful.

How to protect your own work from dirty rotten scoundrels

• To reserve the maximum right to sue those who reproduce, publish, or distribute your blog content without your permission, you’ll need a federally registered copyright.

• You should also mark your work as copyrighted directly on your blog/website as well as in the RSS feed, which serves to give notice that your work is protected—and you can do this with or without registration.
• Even if your work is not federally registered, according to the U.S. Copyright Office, if it is an original work that is “created and fixed in a tangible form,” copyright still protects it. But without registration with the U.S. Copyright Office, there is no official public record of the owner and no federal jurisdiction over claims of infringement—almost always necessary to meaningful financial recovery in cases of infringement.
• If you want to share your work, license it under your chosen terms—for free or for fee.

Below are remedies for you if you believe your work is being used without your permission.

• Notify the infringer so they may remove the content being used unlawfully.
• Contact the ISP provider and request they address the situation with the actual site.
• See if there is a mechanism in place to address the contested material. For example, YouTube, provides an automated form for such issues.

And don’t forget to check yourself! Tools available to make sure you do not misstep include Google Scholar Search, Stack, Google Alerts, and others.

This almost feels like too much work to show off your work. But it is an age-old problem. Consider the Shakespeare/Marlowe controversy, debated to this day! Even the masters are not exempt from infringement! So, be on the safe side and assume all internet finds are copyrighted until proven otherwise. Then check your work again.