Copyright Primer for Designers

13 comments | Posted: 7 May 06 in Tutorials, by Michael Montgomery

U.S. Constitution, Article I, Section 8

Introduction

This article discusses copyrights, particularly from the perspective of web designers.

Some introductory notes:

Scope notes:

In The Beginning:

Copyright law in the U.S. originates with the Constitution. The image above shows Article I, Section 8 of the Constitution, which grants Congress the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries 1

You Created It; You Own It

The term “copyright” refers to a bundle of property rights granted by law to the creators of “original works”. The property rights arise immediately, when the original work is “fixed in a tangible form of expression”. In other words, the copyright is created when you save it on your hard drive, not when you post it.

So, when you originate that great story/article/song/play/blog post/movie script, and you write/design/draw/photograph/illustrate/record/compose it on your pad of paper/notebook/Moleskine/computer/PDA, a copyright is born.

Questions, already:

Exceptions, already:

What Are My Rights?

The owner of a copyright in an original work has the exclusive right to:

Are There Limits On My Rights?

One of the exceptions to copyright is called “fair use,” under which some of a copyrighted work may be quoted or reproduced for the purpose of commentary, criticism, journalism, education, research, or parody.

Caution: Fair use is complex. The boundaries are very fuzzy, and clear rules are hard to find.

Some factors to be considered in evaluating whether fair use applies:

  1. the purpose and character of the use, including commercial or nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and relative significance of the portion, compared to the entire copyrighted work; and
  4. the resulting effect on the market for or value of the copyrighted work. 2

Caution (Again): From the Copyright Office circular entitled Fair Use (of course):

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Summary: Evaluating fair use is tricky. When in doubt, try asking the copyright owner for permission.

What Is Not Copyrightable?

Some kinds of materials or otherwise “original works” cannot be copyrighted. The following quotes are examples from the Copyright Office circular entitled Copyright Basics, in the section entitled “What Is Not Protected By Copyright?”:

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

For example: you don’t own “white on dark” text, or a “green and black” color scheme, or the slogan “Web Standards Rule” or “Web Wizards,” or similar short phrases and general ideas.

Exception: Remember that we are not talking about trademarks here. Maybe in a later article.

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

Summary: Copyright is all about the expression of an idea, not the idea itself. A specific “wicked worn” website design may be copyrighted, but you can’t copyright the idea of “scuffing up your graphics.”

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Summary: Remember that term “original works” from up at the top of this article? It has to be original to be copyrightable.

At the risk of talking from both sides of my mouth, the standard for “originality” is relatively low. For example, you might think that the latest in a grand tradition of a hundred thousand romance novels is not sufficiently original to merit copyright protection, but as long as the author didn’t plagiarize or copy….

After You Post It, You Still Own It

When you post your own copyrighted material on the internet, you still have the copyright. You haven’t given it away, and it doesn’t become public domain, and it’s not okay for someone to copy it. Remember the discussion about owning a book, but not its copyright.

Just in case there’s any doubt though, you have published it.

Copyright Notices

A copyright notice is the cryptic little phrase at the bottom of many websites, inside the cover of every book, etc. It is basically a statement that “I own this original work.”

The correct form includes three items:

1. The word “copyright” or “copr.”, or the © symbol.
2. The year of first publication of the copyrighted material to which the notice refers.
3. The name of the copyright owner. This may be an individual’s full name or last name only, or a company or organization name (or a recognizable abbreviation).

This third one causes some confusion for websites (and software programs, like Windows for example), which contain various chunks of material that were posted/published in different years. The usual solution is the “year1-year2” nomenclature.

By the way, it is generally considered acceptable to change the order of these three items of a copyright notice, although it looks funny if the copyright word/symbol isn’t in the front.

Some examples:

Notes on Notices:

You may see a notice that includes the phrase “all rights reserved.” This is an artifact from a time when a few countries actually concluded that a copyright notice did not necessarily indicate an intention to reserve all rights, only some of them. My understanding is that this phrase is no longer necessary at all.

By the way, you may also see the characters ”(C)”. This is simply incorrect. These three characters have never been given legal effect.

Copyright Notice No Longer Necessary

The copyright notice is now optional, at least in all countries that have ratified the Berne Convention. However, it can be beneficial.

Lifetime Of A Copyright:

That word “lifetime” is a little joke, because the copyright in current works lasts for the lifetime of the creator, plus 70 years. Short answer: long enough.

Don’t Infringe Copyrights

At the very least, it’s illegal. As a Christian, it’s also a poor witness. Consider “Thou shall not steal.”

Rules of Thumb on the Internet:

These are only rough guidelines, but they’re good ones:

Additional Resources:

United States Copyright Office

  1. Copyright Basics
  2. Summary of Fair Use
  3. Information Circular 3 – Copyright Notice

Summaries:

  1. Wikipedia also has some copyright information.

University Resources:

  1. Stanford University’s Copyright & Fair Use Overview
  2. Cornell’s Legal Information Institute – Copyright
  3. Purdue University Copyright Office – Copyright Basics
  4. Purdue University Copyright Office – Copyright Exemptions (at least the first “Fair Use” section)

Multimedia and Internet:

  1. An Intellectual Property Law Primer for Multimedia and Web Developers at Electronic Frontier Foundation. A formatted version is posted at: An Intellectual Property Law Primer for Multimedia and Web Developers
  2. 10 Big Myths About Copyright Explained (by Brad Templeton, Chairman of the Board for the Electronic Frontier Foundation)
  3. A brief intro to copyright
  4. Getting Permission to Publish: Ten Tips for Webmasters (talk about a messy URL!) Good article for web publishers.

    From Nolo Press:

  5. Nolo Press Copyright page (Lots of good information, at about the correct level of sophistication.)
  6. When Copying Is Okay: The ‘Fair Use’ Rule

Photo excerpt of the U.S. Constitution, Article I, Section 8, from the National Archives.

Discuss This Topic

  1. 1 Yannick

    Nice write up Michael. You opened my eyes to a quite a bit of things related to copyrights that I had never known.

     
  2. 2 Chris

    Great article! It was very helpful for me.

     
  3. 3 Thame

    Wow, excellent work collecting all of this information. This is going into my bookmarks.

     
  4. 4 Adam Spooner

    Wow, there’s a lot to learn about copyrights! Thanks for the great article, Michael. It’s definitely a good synopsis to read through and a great place to get started [all the links] with some in-depth research!

     
  5. 5 Steve Dickinson

    Michael,

    thank you for the article, I’ve been looking forward to it since you posted on Nathan Smith’s copyright tip over at SonSpring.com.

    There is an interesting audio message over at IT Conversations that has some thought provoking listening about the modern trends in the US copyright area.

    Once again, many thanks!

     
  6. 6 pbhj

    1) Copyright infringement is not theft (re: “you will not steal”) as it doesn’t deny a person their own use of the property

    2) Consider the use of copyright to restrict the copying of biblical translations (News International own the NIV and profit from it!) ... I know you said it’s not a treatise.

    3) It may actually be illegal in many countries for someone to view your website as a copy is made on their own computer. Not all countries have “fair use” terms that are as fair as the US.

    4) You should have mentioned open source and the CreativeCommons.org license schemes.

     
  7. 7 Nate Klaiber

    Excellent article. Copyrights are always something that have been a bit of a haze to me – I wasnt sure of the specifics or the ‘fine print.’ I have heard many things over the years, but this has helped to clarify some of the fuzziness I have had.

    Now I need to read some of the links…

    Peace,
    Nate

     
  8. 8 Alvanweb

    Wow, This is a great and useful article for all designer.

     
  9. 9 Mike Montgomery

    Thanks to all for the positive feedback!
    (Writing for a group that I respect so much was a little stressful.)

    @pbhj: It’s nice to meet a former patent examiner, and thanks for the good input.

    1) “Copyright infringement is not theft…as it doesn’t deny a person their own use of the property”
    Hmm, interesting perspective. When I said “consider” that verse, I was thinking about specific exclusive property rights to publish, reproduce, distribute, display, etc. According to Wikipedia, the “unauthorized reproduction and distribution is often referred to as piracy or theft”.
    Admittedly, the U.S. Supreme Court has held that copyright infringement is not “theft of physical goods” (think pirated music), in the sense of a law against “interstate transportation of stolen property” but the Supreme Court made plain in its ruling that the Copyright Act already contains a criminal provision.
    As best I can determine, “copyright infringement is not theft” does seem to be the common U.K. view.

    2) As to copyright on biblical translations:
    I have strong and mixed feelings about this one. My hope is that the successful examples of BibleGateway, ESV, eBible and the e-Sword software will encourage even more open access to scripture, commentaries, etc.

    3) I don’t know much about international variations in copyright, especially whether some countries conclude web surfing is infringement.
    Another interesting point is that visiting some sites may be illegal in some countries for other reasons (politics, etc.)

    4) I did mention Creative Commons licenses in the “Scope Notes,” at least that this article wouldn’t cover them in detail. However, open source/public domain and Creative Commons are of interest, so perhaps more detail in a later post….

    As to all these topics, I’d be glad to see your thoughts, or perhaps we can collaborate on something.

     
  10. 10 Steve Dickinson

    @pbhj:

    My initial thought on your first point would be that Copyright infringement may not constitute physical theft but it can deny the copyright holder income they could have gained for their work. In addition to the commandment not to steal there are examples where the Lord speaks against not paying a man for his labour.

    On the flip side of the coin, however, we also know the Lord hates an unfair weight and I guess a modern example of this would be overpricing.

    (As I write this I am sitting here in a SE Asian country and thinking about legal imports of US software which seem to have been abandoned in favour of ‘piracy’, but the scope of the point is greater.)

     
  11. 11 Scott Lenger

    I believe this is incorrect:

    “Since 1978, the copyright exists when an original work is fixed in a tangible medium, whether it’s published or not”

    1978 refers to the Sonny Bono Copyright Term Extension Act, which extended the copyright to 70 years plus the life of the author.

    Works no longer required a ‘registered’ copyright after 1988 when the US finally agreed to support the Berne Convention (an international copyright agreement) which requires that a copyright be automatic (meaning that registration is no longer necessary.

    Not that it really matters since I don’t think any of us were building websites in the 70’s or 80’s :)

     
  12. 12 Mike Montgomery

    Hmm, great question….
    I don’t remember where in my research I found that particular factoid (and at the moment I don’t recall the correct information), but will check when I get a chance.

    As I recall, the important part of that sentence is the word “published”. At that point, I’m talking about whether publication is required, as opposed to whether registration is required.

    “I don’t think any of us were building websites in the 70’s or 80’s”
    Too true.

     
  13. 13 Thomas Frederick Heringer

    You answered the questions I have had in mind. I keep seeing the Copyright on the bottom of free web designs in this formula yourname/copyright symbol/who designed the page. Now I understand why this is done. Thanks I have been looking all over for the answers and found none until I looked here.

     

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