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Copyright FAQ

What is a “work made for hire?”
Under 17 U.S.C. 101, a ”work made for hire” is:
a) A work prepared by an employee within the scope employment; or
b) A work (if the parties expressly agree in a written instrument signed by them that the work should be considered a work made for hire) specially ordered or commissioned for use as:
a contribution to a collective work,
a part of a motion picture or other audiovisual work,
a translation,
a supplementary work (forewords, afterwards, editorial notes etc.),
a compilation,
an instructional text for use in systematic instructional activities,
a test,
an answer material for a test, or
an atlas.

Note that software development and website design do not fall under any of the “work for hire” categories. Therefore, while a company owns software development and website design produced by its employees, it does not own such materials produced by an independent contractor. Even if the parties agree software development and/or website design are to be a work for hire, these works do not meet the statutory criteria. Therefore, it is very important for a company not to rely on a work for hire designation to transfer rights in such projects. Instead, the company must obtain a written assignment of the copyright in the commissioned work from the independent contractor.

How long does a copyright last?
For an individual author, copyright protection extends for the life of the author, plus 70 years. For anonymous works and works for hire, the term is 95 years from publication, or 120 years from creation, whichever comes first.

How can I tell if something is in the public domain?

Unfortunately, there is no sure way to confirm a work is in the public domain. While it is possible to check the Copyright Office to confirm a copyright is registered, the absence of registration does not mean the work is in the public domain. Unless a work was published prior to 1923, you simply cannot tell if something is copyrighted. Do not rely on the absence of a copyright notice, Internet urban legends, or the fact that you might have received the work via email as an indication that the work is in the public domain. Infringers rarely provide the copyright notice when posting infringing material online and testaments as to the “public domain” or “open source” status of a work are notoriously inaccurate.

A rather unscrupulous tactic is for an author to write a poem or software module and “somehow” place the work onto the Web. Once unrelated third parties begin to present the work as being in the “public domain” the work spreads like wildfire, making it impossible to trace back to the author. Meanwhile, the author registers the copyright in the work, does a simple online search and tracks down all the infringers. As U.S. copyright law provides statutory damages for violations, the author simply sends the infringer a copy of a generic lawsuit, along with a demand for several thousand, to tens of thousands of dollars. The author notifies the infringer that the use of the work is unauthorized, and that the author will file the lawsuit if the infringer does not pay the demand. Monetary demands are typically calculated to be slightly less than the cost of defending the lawsuit. It is nearly impossible to prove the author actually placed the material online, so the infringer has little choice but to pay the demand. As tempting as it might be to use that undocumented “open source” software module or online poem, DO NOT use, copy, or transfer any copyrightable material, unless you can prove its public domain pedigree in court.

What is Fair Use?
17 U.S.C. 107 states that “fair use” of a copyrighted work is not an infringement. Fair use, however, is rarely applicable to online usages of copyrighted works. There is no set number of words or type of use that constitutes “fair use.” Rather, to determine whether use of a copyrighted work constitutes “fair use” courts examine:
a) The purpose and character of the use (including commercial or nonprofit);
b) The nature of the copyrighted work (forms having an implied license to distribute);
c) The amount and substantiality of the portion used (publishing the “heart” of a novel);
d) The effect of the use upon the potential market (televising Evil Knievel’s jump)
Although this provision shields many parodies, news items, and commentaries, its application is extremely technical. Blind reliance on its provisions is foolhardy, and will quickly cast the unwitting into a time consuming and costly infringement battle. Even many non-profit, complementary, minimal and attributed usages do not constitute fair use. Copyright owners typically have deep pockets and boilerplate lawsuits. Do not rely on the fair use doctrine unless you are prepared to defend your use in court.

Is Copyright Infringement a Crime?
It can be. While copyright infringement is typically a civil matter, in certain circumstances, U.S. copyright law makes it a misdemeanor or even a felony to willfully infringe on a copyright.
What is the Digital Millennium Copyright Act (DMCA)?
The DMCA is a law designed to address online copyright issues the original drafters of U.S. copyright law never anticipated. Although the DMCA has many provisions, it primarily limits liability of Internet Service Providers (ISPs), prohibits circumventing anti-piracy software, and requires rebroadcasters of copyrighted material to pay royalties. DMCA’s reach is so strong; it has even been held to prohibit linking to a site containing DVD cracks. The DMCA is very controversial, as many in the online community feels it unfairly stifles free speech.

Brett Trout

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