Fair Use

Other people can use (copy, perform, display, etc.) a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without infringing the copyright. Fair use is determined on a case-by-case basis. Whether a use is indeed a “fair use” depends largely on the effect of the use upon the potential market for or value of the copyrighted work.

First Sale

The owner of a lawful copy of a copyrighted work can sell, rent or otherwise dispose of that copy. Some exceptions to this rule are limitations on the rental and/or leasing of sound recordings and computer software.

Duration

Generally, a copyright lasts for the author’s lifetime plus 70 years for those works which were created after January 1, 1978. Thus, a copyright lasts considerably longer than a patent (20 years from the filing date for a utility patent) but not as long as a trademark, which can theoretically last forever. In the case of a “work for hire” e.g., a work created for a company by an employee the term is 95 years from the date of publication.

Over the years a number of amendments and extensions have been made to copyright terms. Accordingly for works created prior to 1978, an attorney familiar with the myriad of rules should be consulted.

Summary

According to statute, the owner of a copyright has the exclusive right to do any of the following:

• To reproduce the copyrighted work in copies or in phonorecords;
• To prepare derivative works based upon the copyrighted work;
• To distribute copies or phonorecords of the copyrighted work to the public by sale or transfer of ownership, or by rental, lease, or lending;
• In the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures and other audio visual works, to perform the copyrighted work publicly; and
• In the case of literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work, to display the copyrighted work publicly.

With the exceptions noted above, anyone who violates any of the exclusive rights of the copyright owner is an infringer. Remedies for infringement include injunctions, impounding and disposition of infringing articles, damages and profits, costs and attorneys fees. Further, importation of infringing copies may be prevented.

Copyright Protection

A third type of intellectual property is the copyright. A copyright protects literary and artistic “expression” as well as other types of informative media that derive their value from the particular manner in which the information is expressed. Books, musical works, plays, computer programs, paintings, sculptures, and movies are among the types of works which are eligible for copyright protection. Generally, any work which is fixed and which includes an artistic or expressive component can be the subject of a copyright.

A copyright generally protects only a work’s appearance or “expression”. Copyrights are different and separate from patents and trademarks. You cannot copyright an invention; you patent an invention. You cannot copyright the name of a product; but you can establish trademark rights in a product name. However, you cannot patent or trademark a book, which is the particular expression of an idea, and is protectable only by copyright.

A copyright arises in a work if at least a portion of the work is original (not copied from something else) and the work includes some literary or artistic expression. Copyright only protects particular expressions of ideas, not the ideas themselves. For example, although a copyright exists in a particular painting of a lighthouse, the copyright only protects that particular painting and does not prevent others from painting the lighthouse. Painting the lighthouse is the “idea” and is not protectable; the particular painting of the lighthouse is an “expression” of the idea, and is protectable.

A copyright automatically attaches to a work at the time it is written down or otherwise fixed or recorded. There is no need to sell a copy of the work (as in the case of trademarks). Nor is it necessary that the work be registered with the federal government (as in the case of patents).

In order to best preserve the copyright in a work, all publicly distributed copies of the work should have a copyright notice affixed to them. The notice should include the familiar © symbol (or the word “copyright” or “copr.”), the year of first publication, and the name of the owner of the copyright. Thus, a sufficient copyright notice might be: © 1996 Norman Smith. As of March 1, 1989, the copyright notice is no longer a legal requirement, but it is still recommended. Within three months after publication, two copies of the best edition of a work should be deposited in the Copyright Office.

In addition, the copyright in a work can be registered with the Federal Government at any point during the life of the copyright. One copy (if the work is unpublished) or two copies (if the work is published) of the work, along with a completed registration form and a $30 fee are submitted to the Copyright Office. Typically, the Copyright Office will process the registration within a few months after receiving the application. The copy or copies which are submitted with the registration application fulfill the deposit requirement mentioned above.

Since registration with the copyright office is not required, failure to register will not invalidate a copyright. However, registration is highly recommended for a variety of reasons, including a presumption of validity. Also, if infringing activities occur after registration of the work, then statutory damages and attorneys fees may be available. Registration is inexpensive ($30) and maybe easily performed by the individual without consulting an attorney.

The owner of a copyrighted work has the exclusive right to do and to authorize any of the following:

• Copying of the work;
• Adaptation of the work (e.g., making a movie based on a copyrighted book);
• Distribution of copies of the work to the public, by sale, rental or otherwise;
• Public performance of the work; and
• Public display of the work.

There are many limitations to the exclusive rights listed above. Two of the most common are the “fair use” and “first sale” limitations. Also, in contrast to a trademark, a copyright only has a limited lifetime.

A Cease & Desist Letter may need to be sent in a number of circumstances including

• Defamation, Slander, and Libel
• Trademark Infringement
• Copyright Infringement
• Patent Infringement
• Harassment
• Debt Collection (to collection agency or creditor under Fair Debt Collections Practices Act)

The following is a Cease and Desist Letter template for those who are looking for a sample form to use as an example. This Cease and Desist Letter is solely for use with copyright infringement (it could be modified for other purposes), and is from the perspective of a Minneapolis attorney writing on behalf of a client whose copyrighted works were being infringed.

A warning: You should not use this Cease and Desist Letter without consulting first with an attorney to ensure that it complies with the law in your jurisdiction. Also, Cease and Desist Letters are best sent by attorneys because they carry more weight when a lawyer writes a letter threatening legal action if someone doesn’t cease and desist illegal conduct.

Copyright Infringement Cease & Desist Letter Template | Sample Form

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Here is the copyright infringement Cease and Desist Letter sample template form:

CEASE AND DESIST DEMAND
Pursuant to Title 17 of the United States Code

February 20, 2011

John Doe
2812 Anthony Lane South
Minneapolis, Minnesota 55418

Dear Mr. Doe:

This law firm represents [CLIENT NAME]. If you are represented by legal counsel, please direct this letter to your attorney immediately and have your attorney notify us of such representation.

We are writing to notify you that your unlawful copying of [CLIENT’S COPYRIGHTED WORK] infringes upon our client’s exclusive copyrights.  Accordingly, you are hereby directed to

CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.

[CLIENT NAME] is the owner of a copyright in various aspects of [CLIENT’S COPYRIGHTED WORK].  Under United States copyright law, [CLIENT NAME]’s copyrights have been in effect since the date that [CLIENT’S COPYRIGHTED WORK] was created.  All copyrightable aspects of [CLIENT’S COPYRIGHTED WORK] are copyrighted under United States copyright law.

It has come to our attention that you have been copying [CLIENT’S COPYRIGHTED WORK].  We have copies of your unlawful copies to preserve as evidence. Your actions constitute copyright infringement in violation of United States copyright laws.  Under 17 U.S.C. 504, the consequences of copyright infringement include statutory damages of between $750 and $30,000 per work, at the discretion of the court, and damages of up to $150,000 per work for willful infringement.  If you continue to engage in copyright infringement after receiving this letter, your actions will be evidence of “willful infringement.”

We demand that you immediately (A) cease and desist your unlawful copying of [CLIENT’S COPYRIGHTED WORK] and (B) provide us with prompt written assurance within ten (10) days that you will cease and desist from further infringement of [CLIENT]’s copyrighted works.

If you do not comply with this cease and desist demand within this time period, [CLIENT] is entitled to use your failure to comply as evidence of “willful infringement” and seek monetary damages and equitable relief for your copyright infringement. In the event you fail to meet this demand, please be advised that [CLIENT] has asked us to communicate to you that it will contemplate pursuing all available legal remedies, including seeking monetary damages, injunctive relief, and an order that you pay court costs and attorney’s fees.  Your liability and exposure under such legal action could be considerable.

Before taking these steps, however, my client wished to give you one opportunity to discontinue your illegal conduct by complying with this demand within ten (10) days.  Accordingly, please sign and return the attached Agreement within ten (10) days to

[FIRM NAME]
[FIRM ADDRESS]
[FIRM CITY, STATE, ZIP]
Fax: [FIRM FAX NUMBER]

If you or your attorney have any questions, please contact me directly.

Sincerely,

[NAME]

Attached page:

Copyright Infringement Settlement Agreement

I, ___________________, agree to immediately cease and desist copying [CLIENT’S COPYRIGHTED WORK] in exchange for [CLIENT] releasing any and all claims against me for copyright infringement.  In the event this agreement is breached by me, [CLIENT] will be entitled to costs and attorney’s fees in any action brought to enforce this agreement and shall be free to pursue all rights that [CLIENT] had as of the date of this letter as if this letter had never been signed.

Signed:________________________________

Dated:________________________________

This article explains whether RSS feeds are copyrighted. In short, the answer is YES.

What is RSS?

Websites are norally accessed with a web browser. RSS is a technology that allows a webpage (blog, etc.) to be accessed without a web browser. RSS can be accessed by many tools, including an RSS reader, which is software that allows you to view the RSS feeds of many websites at once.

Are RSS Feeds Copyrighted?

In the United States, the author of any written material generally owns a copyright on that material. Since RSS is merely a way to access that material, the material is still copyrighted. RSS doesn’t change anything. Whether you use an RSS tool or a web browser to access material, the material is still copyrighted.

In other words, laws apply to new technology just as they would to traditional materials (books, brochures, etc.).

Is Republishing an RSS Feed Considered Copyright Infringement?

In general, copying material without permission of the copyright owner is copyright infringement. However, there is an interesting legal questioned raised by RSS. By making your website available by RSS, are you granting permission for others to republish your RSS feed?

In other words, RSS is an abbreviation, which includes the word “Syndication.”  Syndication generally means that the owner is making the material available to be accessed in other locations, which is essentially republishing. To my knowledge, the courts have not come up with a clear answer to whether republishing an RSS feed is actually copyright infringement.

Are Scrapers Violating Copyrights?

Scrapers are software tools that copy material off one website and post the material to a website owned by the person using the scraper.  When scrapers copy material without permission of the copyright owner, copyright infringement occurs. However, read above (“Is republishing an RSS feed considered copyright infringement?”).

What Can I Do if My Website is Illegally Copied?

I answered this question and some others on these posts:

• Copyright & Trademark for Blogs
• Copyright Infringement Cease & Desist Letter Template | Sample Form

If you want to protect your material, or if you need to defend yourself in a copyright lawsuit, I would be glad to talk with you about your situation.