Copyright and Legal FAQ
Written by BlackD
Not to be used in a court of law. ;) This is purely informational.
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Table of Contents
1. What is a copyright?
2. Can any original work NOT be copyrighted?
3. What is public domain?
4. How long do copyrights take to expire?
5. Company A is letting other people copy their work so can I?
6. I just made something original. How do I copyright it?
7. I've heard about fair-use. Can't I copy stuff for myself?
8. Copyright doesnt apply in some places. Where are they?
9. Can I copy someone elses idea but change the name?
10. If it's free on the web - then nobody owns it do they?
11. What about MIDI files, can I use these?
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1. What is a copyright?
A copyright is an exclusive right to intellectual property of original works
which authors retain for a limited period of time. This applies to any original
work. It doesn't have to be good, it just has to be original. There are seven
distinct rights covered under "copyright" which the author retains.
- Reproductive rights; the right to reproduce copies
- Adaptative rights; the right to create derivatives of the original work.
- Distribution rights; the right to distribute copies that have been
reproduced.
- Performance rights; the right to perform the work publically.
- Display rights; the right to display the work publically.
- Attribution rights; the right to take credit for and to be credited for the
work
- Integrity rights; the right to prevent distortion of the works in attempt to
bypass copyright.
These rights are the SOLE rights of the author, or the party to which the author
licenses the copyright. Original works can be any intellectual property created,
be it written words, music, art, movies.. anything.
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2. Can any original work NOT be copyrighted?
Yes. Titles, names, short phrases, slogans, etc, cannot be copyrighted. Anything
short enough as to not demonstrate a minimum degree of creativity cannot be
copyrighted.
For example, "Only the dead see the end of war" - Plato. This is a quotation by
a philosopher many centuries ago. Of course if it was under copyright that would
have expired by now, but it couldn't be copyrighted in the first place. It
doesn't demonstrate a large enough degree of creativity. This is up to courts of
course, and this point is merely illustrative.
Likewise, a painter could paint a canvas in white paint, and then paint a square
black box somewhere in the middle of it. This art cannot be copyrighted. While
he has the right to put his name to it, he can't stop other people from painting
black boxes - as it is not sufficiently original enough to derivate from already
existing works.
However, in the case of titles, short phrases, etc - they CAN be trademarked.
"Just Do It"(tm) is a trademark of Nike. It cannot be copyrighted on its own,
but trademark law allows individuals and companies to pay for temporary
rights to specific words or sets of words, but this is covered later.
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3. What is public domain?
Public domain is any work that is NOT copyrighted. There are only a few ways
this can happen.
- If the copyright has expired (see #4 below)
- If the work is the work of an government body signee to the Berne
convention, 1988. Such works cannot be copyrighted.
- The work doesn't fall under copyright law. (see #2 above)
- The copyright may be forfeit. The waiver of copyright notice only came into
effect in March 1, 1988. Before that time, any work needed a copyright
notice. Any work created before that time that doesn't include one is
forfeit UNLESS the author has since re-published the work or published it
elsewhere WITH a copyright notice. It is difficult to be certain a certain
work has never been published with a copyright notice just because you
find it in one place without one, and therefore, forfeiture shouldn't be
used as a ground for copying something.
- The copyright may be abandoned. This very rarely happens. This occurs only
when the author and copyright holder of the work states expressly and
overtly that he is dedicating his work to the public domain.
To expand on some of these points, first of all regarding forfeiture: This
doesn't mean that any works created prior to 1988 that don't have a copyright
notice, are void of copyright. Take the sprites for the aliens in the Space
Invaders game for instance. They are individual artworks, created individually,
and have no copyright notice. However, they are part of a product which IS under
copyright and as such, are copyright as well.
Regarding abandonment, FREE works, are not "public domain". Freeware software,
is NOT public domain. As long as the author retains ANY of the copyright rights,
then the work is under copyright, but merely with the rights of distribution and
reproduction waived. An author may waiver ALL copyrights except for
attributuion, but this means the article is still copyright. Frequently we see
notices saying "Feel free to use this however you want, but give me credit".
That doesn't mean its a public domain work, that means its a fully copyrighted
work requiring attribution. He has simply waived rights to distribution,
reproduction, adaptation, performance, display and integrity. You MUST give him
credit, otherwise you are a criminal.
Free textures, sounds, etc, are all under copyright unless you have proof that
the original author of those works expressly dedicated them to the public
domain. If you find a MIDI on a website and wonder if you can use it since
there is no credit, NO! Not only because it has not been dedicated to the public
domain, but because its copyright won't expire until after you're dead. (see #4
below)
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4. How long do copyrights take to expire?
A long time. But seriously, copyright protection lasts as long as the original
author of the work is alive, and then after that for another 70 years. This
means anything ever produced on any computer is still under copyright, and will
be at least until 2050.
If you don't know who the author of the work is, or the work is anonymous, then
the attributed copyright lasts for 95 years from its first publication or 120
years from its creation.
In terms we as geeks will understand better:
To explain this better, if you find a texture on a website and don't know who
created it or when, then the date the website was created was the beginning of
the 95 year. If this is indeterminate, then the date you found it is the
beginning of 95 years. You have to wait 95 years before you're allowed to use it
without regard to copyright.
If you go to one of those Japanese "drawing" boards, then the date of creation
is explicity stated. Since the work is anonymous in most cases, the copyright
lasts for 120 years from that date of that drawing.
Works created prior to January 1, 1978, may be continuously copyright renewed by
the copyright owner, so don't assume that in 2049 that they're automatically out
of copyright because 70 years has expired - the author may have renewed the
copyright any time during that period. And for works created prior to Jan 1,
1978 - the copyright holder wether private or corporate has the right to
continue doing so indefinitely.
There is a lot more to copyright duration than this, but work from these simple
principles and you'll be safe. Different works attract different periods of
time, but rest assured, no copyright attributed work created on a computer has
yet expired its copyright status.
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5. Company A is letting other people copy their work so can I?
No. A recent case between Microsoft and the Lindows company brought this idea to
the forefront, but confusing to many, that regarded trademark, not copyright.
Under trademark law, if a company doesn't protect its trademark repeatedly, then
the trademark can be considered void to a certain extent. In that case,
Microsoft tried to sue Lindows for use of a name which encroached exceedingly
similar to "Windows". Lindows argued that Microsoft hasn't protected its
trademark by allowing various other products such as "Windows Blinds",
"X-Windows", etc - into the market without challenge. The court agreed, and
Lindows was allowed to continue using it's name.
However, under copyright law, this doesn't apply. Just because one person
illegally copies a work, doesn't mean others can as well. All too often, someone
actually applies for and gets permission from a copyright holder to reproduce a
work. Then Joe Bloggs comes along, sees the copied work and doesn't know
permission was sought, and thinks "okay - it must be public domain now". No!
Copyright doesn't need to be protected in every case for the copyright to still
hold true. Companies are quite entitled to let a thousand people copy their
work, then when you come along as #1001, to sue your pants off. (figuratively
speaking) :p
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6. I just made something original. How do I copyright it?
You already did. Congratulations. It is placed under copyright law the moment
you created it. After the copyright reform act of 1993, you no longer need to
even register with the Copyright Office in order to sue people for breaching
your rights.
But as always, try to include a copyright notice on your work. This makes it
impossible for anyone to claim they "didn't know" your work was copyrighted.
Generally in court if people successfully defend a position that they "didn't
know" (the "innocent infringer" defence) then the penalties against them and
thus damages awarded to you, are less severe. They still lose, but not nearly by
as much as if you plasted your product with "This is SOO copyright and I'm gonna
sue you!" labels.
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7. I've heard about fair-use. Can't I copy stuff for myself?
Yes and no.
Fair-Use as described in copyright law, is a circumvention of copyright law, to
be used only in cases where the restriction of copyright would otherwise stifle
the creativity and discussion of the work which the copyright is protecting in
the first place. The main points below are taken from another copyright FAQ, but
I'll add discussion to them to illustrate the examples more carefully.
These are some areas where fair-use has been found by courts to override
copyright restrictions:
- Quotation of excerpts in a review or criticism for purposes of illustration
or comment;
This one is a no-brainer. You're allowed to make some limited quotation of
a work in order to discuss it.
- Quotation of short passages in a scholarly or technical work for
illustration or clarification of the author's observations;
If you publish in a scientific journal, and people don't understand your
points, another author is allowed to quote your work to expand on and
explain the meaning of your work.
- Use in a parody of some of the content of the work parodied;
Parody is primarily a humorous "take-off" of an original work. Weird Al
Yankovich is a performer who takes original, copyright songs, and changes
them for the purpose of humour. This particular use is considered parody.
However, if he took a song and changed the lyrics to create another
serious song, he would be breaching copyright. A substance of humor is
required in parody, otherwise its just another copyright violation -
breaching the "integrity" right of the author.
- Reproduction by a library of a portion of a work to replace part of a
damaged copy;
Libraries have a right to this. You do not. As much as you think it may be
fair to make a copy of a friend's Far Cry disk 3 to replace your broken
one, its illegal. Instead, you have to send your broken disk into the
manufacturer and ask for a replacement, usually at your own cost. If you
don't want to pay for replacements, seriously - try to avoid breaking your
originals. :p
- Reproduction by a teacher or student of a small part of a work to illustrate
a lesson;
If the teacher wants to make fun of your work by reading your stupid love
poem to the whole class, he's allowed to. Get used to it. Likewise, if you
find one of his, you're allowed to tell everyone about it too.
- Reproduction of a work in legislative or judicial proceedings or reports;
This basically means, you can't sue the prosecution because they made a
copy of your website about bomb making while trying to get you thrown in
jail. Or anything similar to this scenario at all. Likewise, if you're
trying to sue someone for slander, you're allowed to make as many copies
of the slanderous article as you want. But, as shown in the Hustler vs
Evangelist case (i forget the name of the evangelist), you can't use these
copies for anything you want. You can't distribute them to people and say
"look what they said about me!" or else you'll get sued for breach of
copyright. You can only use them directly in legal proceedings.
- Incidental and fortuitous reproduction in a newsreel or broadcast, of a work
located in the scene of an event being reported.
If your art gallery is set on fire, and while filming the fire, the TV
studio shows some of your artwork, you can't sue them for breaching your
"distribution" and "reproduction" rights. This is incidental, and
considered "fair use"!
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8. Copyright doesn't apply in some places. Where are they?
It's true, some countries didn't sign the Berne copyright convention. But that
doesn't mean if you live in one of those that copyright doesn't apply to you.
Many countries who didn't sign the Berne convention instead signed the
Universal Copyright Agreement (first instituted in 1952) and others have their
own national copyright laws. Never assume because you live in a third world
country that you're immune to prosecution. Or we'll send agent Mulder around.
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9. Can I copy someone elses idea but change the name?
No, no and NO! Not unless you are creating a work of parody.
For instance, take these two scenarios:
1) Created a game called "Last Dream". Made it just like Final Fantasy*,
integrated an identical combat system, even had little yellow birds that
you rode around on, then put it online for everyone to play.
2) Created a game called "Final Farciacy". Poked fun at everything about
Final Fantasy* all the way through. Like having awesome full-screen,
earth-shattering, fit-inducing special magic combo attacks which deal 1
damage. And having a "Whack-A-Chocobo" mini-game. And the whole thing only
including about half an hour of gameplay.
Under scenario #1, you're breaching copyright, namely, the right of derivative
works. Sued!
Under scenario #2, you're creating a parody, considered fair-use, thus
circumventing copyright law. But theres a fine line between parody and copyright
breach, and I don't have time to cover it all here. Unless your work is an
OBVIOUS parody, with no impact whatsoever on the copyright holder, then come up
with something original instead.
* Final Fantasy(tm) is a trademark of Square Inc. ;)
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10. If it's free on the web - then nobody owns it do they?
Yes, the original copyright holder owns it. Just because someone else is giving
it away free, doesn't mean that the original rights have been waived. (see point
#5 above).
While the whole "information must be free!!!11" movement is a romantic one, it's
also highly illegal. EVERYTHING you find on the web, no matter how small or
large or important or unimportant, is under copyright. The very fact that its
been published PROVES it's under copyright. The only cases where this isn't the
point is if its immune to copyright (see #2) or is in the public domain (see #3)
but these both rely on very specific and special circumstances that you're
unlikely to encounter.
As already covered, even FREEWARE is not free of copyright. It's just works that
have certain rights given away. Free music, art, code - is all under copyright
unless expressly given to the public domain. And realise, most sites out there
giving away stuff free aren't actually the original copyright owners, and
they're doing so illegally. Don't join in and help make the problem even worse.
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11. What about MIDI files, can I use these?
There has been a lot of debate about this. Up until 2001, MIDI files were
considered a computer program and not an aural reproduction of sound. Therefore,
you could write a midi file yourself, using the tune of a commerical song,
and not face prosecution as you haven't copied the music but instead created an
original program which - when decoded by midi playing software, merely resulted
in computer sounds that resembled a copyrighted piece of music.
Even then though, you couldn't use somebody else's midi file without their
permission - as since it was their original creation, the actual creater of the
midi file had the copyright to that midi file.
However, the DMCA and other copyright acts since 2001 have changed all this.
Partially because the instruments available to be used by midi decoding software
are now of such high quality, that a midi file can in fact produce an EXACT
replication of an original song, both aurally and note-wise. And partially
because artists got sick of their music being ripped off and appealed to law-
makers to enforce their rights.
Nowadays, NO - you can't use midi files unless you have permission from both the
author of the midi file, and the copyright holder of the original music which
the replayed tune resembles.
However, MIDI licensing is cheap and easy. You can buy midi files off websites
with unlimited usage licenses for as little as $10. In most professional
organsations that are providing this service, you don't have to worry beyond
about anything beyond paying them. They in turn pay the music companies the
licensing fee (about 1/10th what you paid) for your usage of the midi file.
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