Copyright 101

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Fuzzy Copyright by Nancy Sims

Do you find copyright a little fuzzy? Over the next week we’ll bring you four helpful articles on copyright from the Envato Wiki. This article can be found on the wiki here, and gives you a detailed overview about copyright.

Do you have any questions not covered in these articles? Let us know in the comments, and we’ll put something together to clarify.

1. What is Copyright?

Copyright is a legal concept that gives the author or creator of an original work the exclusive right to do certain things with that original work.

Copyright protection is principally given to literary, dramatic, artistic and musical works, cinematograph film, and television and sound broadcasts.

Copyright gives the owner the exclusive right to copy, publish, communicate (e.g. broadcast, make available online), publicly perform, and adapt the work. These rights are considered to be “economic rights” because they have value and the copyright owner can sell or license the rights to others for a fee.

In most jurisdictions, copyright creators also have a number of “non-economic rights”. These are known as moral rights, and typically include the right to be attributed as the author of their work, the right not to have authorship falsely attributed, and the right to prevent derogatory treatment of their work that is prejudicial to their honour or reputation.

2. Ownership

The general rule is that:

  • the author or creator of a work owns the copyright in literary, dramatic, musical and artistic works;
  • the producer or maker of a film or sound recording usually owns the copyright in that film or sound recording;
  • the broadcaster owns the copyright in a broadcast; and
  • a publisher owns the copyright in a published edition.

However, in some jurisdictions there may be important exceptions to the general rule. For example:

  • employment – copyright in literary, dramatic, musical or artistic works made in the course of the author’s employment is usually owned by the employer;
  • journalists – where work is created by a journalist employed by a newspaper or magazine, the journalist may retain certain rights, while the employer will own all other rights; and
  • commissioned photographs and videos – if photographs or video recordings are commissioned for a private or domestic purpose, then the person who commissions the work may acquire copyright in the work, whereas in most other cases of commissioned works, the author owns copyright.

It is important to note that:

  • the ownership of copyright can be transferred or assigned to another person. For example, the photographer for a magazine shoot may sign an agreement that the publisher owns the copyright in the photographs;
  • copyright ownership can usually only be transferred if there is an assignment in writing; and
  • any one or more of the exclusive rights held by the owner of copyright can be licensed to another person, either on an exclusive or non-exclusive basis. For example:
    • the author of a book may grant an exclusive license to a producer to make a film based on the book; and
    • a software developer may grant its customers a non-exclusive license to use its software.

In each case, the author or software developer would retain ownership of copyright, but just grant the producer or the customer the right to use the work for the purpose specified in the license.

Given that copyright may be assigned or licensed to another person, you should not assume that the owner will be the author of the work in question or the author’s employer. Ownership and the right to deal with copyright should be checked carefully in each particular case.

Copyright works may be made by more than one person and may be jointly owned. For a work to be jointly owned the contributions of each author must not be distinguishable. If various authors contribute separate parts they are not joint authors, but each own the copyright in their contribution.

3. How is Copyright Infringed?

Copyright is typically infringed if a work protected by copyright, or a “substantial part” of it, is used without permission in one of the ways exclusively reserved to the copyright owner. Although in some countries there are special exceptions which allow copyright material to be used without it being an infringement – for example, “fair use” exceptions.

When assessing whether a part of someone else’s work that you wish to use is a “substantial part” you need to consider whether it is important, essential or distinctive part. The part does not have to be a large part to be “substantial” for the purposes of copyright law. It is the “quality” of the part not the “quantity” that is important. Even if you change or add to a part of someone else’s work, you can infringe copyright if the part that you use is an important, essential or distinctive part of the original work.

A person who infringes copyright can be sued by the copyright owner and taken to court. A court can order a range of things, including that the infringer pay compensation and pay the copyright owner’s costs. In some cases, a person who infringes copyright can be charged by the police, and can be ordered to pay a fine or, in serious cases, can be imprisoned.

Examples of copyright infringement include:

  • making unauthorized copies of a work protected by copyright;
  • using a song in a video without the permission of the owner of the recording and the song writer; and
  • publishing someone else’s work without their permission, even if you correctly credit them.

Copyright may also be infringed by:

  • authorising someone else to infringe copyright – for example, by asking or encouraging someone to infringe copyright, or by providing them with the means to do so;
  • importing items containing copyright material for sale or distribution, without permission – for example feature films on DVD;
  • circumventing a mechanism that controls access to digital material;
  • distributing or selling pirate copies of copyright material;
  • recording or filming a live performance without the performers’ consent; or
  • permitting a place of public entertainment to be used for infringing performances or screenings.

4. Copyright Myths

  • If it’s on the internet, then it’s in the public domain and I don’t need permission to copy it.

The internet is not exempt from copyright law. In most countries, the relevant authorities have no difficulty applying traditional copyright laws to works published on the internet. As noted in section 1 above, a copyright owner enjoys certain exclusive rights, including the right to copy and communicate a work. Accordingly, it is copyright infringement to place someone else’s work on the internet or to download or copy it from the internet, without the copyright owner’s consent.

  • If I don’t sell it or make a profit, then it’s not an infringement.

Whether you make any money from the unauthorised sale or distribution of a copyright protected work is irrelevant to the question of infringement. It is still a violation of the copyright owner’s rights and there can still be serious damages awarded against you, especially if your actions harm the value of the work.

  • It’s not protected by copyright unless it has a copyright notice.

It is not mandatory to have a copyright notice on a work. However, a copyright notice strengthens the protection, by warning people that the work is copyright protected, and by allowing the copyright owner to get more and different damages. If a work looks like something that can be protected by copyright (e.g. a literary, dramatic, artistic or musical work), you should assume it is. You should not use anyone else’s work unless you know the source.

  • I don’t need permission to use it because I gave the author credit.

Giving credit means you are not a plagiarist. However, merely giving credit is not a defence to copyright infringement – you still need to obtain the permission of the copyright owner to use the work.

  • I’m only using a small portion or 10% of the original work.

While in some countries there are “fair use” exceptions, copyright is usually infringed if a work, or a “substantial part” of it, is used (without permission) in one of the ways exclusively reserved to the copyright owner.

When assessing whether a part is a “substantial part” you need to consider whether it is important, essential or distinctive part. The part does not have to be a large part to be “substantial” for the purposes of copyright law. A “substantial part” may be a very small portion, and less than 10%, of the entire original work. It is the “quality” of the part not the “quantity” that is important.

5. What can I use?

It is very important that you only sell things you have the right to sell.

You must ensure that you have all the necessary clearances, consents or licenses to use the assets incorporated into an item you wish to sell on an Envato™ marketplace. If you try to sell something that isn’t yours to sell, or in respect of which you don’t have the right to sell, it can have very serious consequences.

Misuse of assets in an item for resale is one of the main ways that authors mistakenly violate another person’s copyright.

In this section, an “asset” means anything (images, videos, illustrations, music, code and so on) that is included in your item. For example, photos used in a design or music used in an After Effects project or sample videos used in a video player.

Please note that any item found to infringe on someone else’s copyright because it includes someone else’s assets without the necessary clearances, consents or licenses will immediately be removed, and further action may be taken depending on the severity of the infringement. The consequences for including copyright violating assets can be severe, and can include account disablement, freezing of funds, and even legal action. See section 8 of our Copyright Policy.

Please make sure you only include assets in your items that you own or have a license to use.

Envato has developed a series of house rules which, if followed, will minimise the risk of you infringing another person’s copyright or other intellectual property rights when using the Envato™ marketplaces.

6. Other Intellectual Property Rights

Copyright is not the only intellectual property right that may apply to items for sale on an Envato™ marketplace.

Other intellectual property rights and legal theories include:

  • Trademarks – a distinctive word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these which is used by a trader to identify that its goods or services originate from a particular source or to distinguish its goods or services from another trader. A trademark owner has the right to stop others from using the trademark, or any deceptively similar trademark, on or in connection with goods or services that are identical or closely related to the goods or services of the trademark owner. In most countries, a trademark owner has enforceable rights in a trademark regardless of whether it is registered.
  • Patents – an exclusive right to commercially exploit an invention (i.e. a device, substance, method or process) which is new, inventive and useful. A patent must be registered before the owner acquires the exclusive patent rights.
  • Designs – a new and distinctive shape, configuration, pattern and ornamentation which, when applied to a product, give it a unique appearance. The registration of a design gives the owner protection for the visual appearance of the product.
  • Passing off / fair trading – passing off occurs where a trader uses the name, goodwill or unregistered trade mark of another in a manner that misrepresents to the public that they are, or have an association with, that other person.

These types of intellectual property rights can sometimes overlap with each other. For example:

  • the owner of a corporate logo may own the copyright and trademark rights in that logo. The copyright prevents unauthorized copying or communication of the logo and the trademark rights prevent use of the logo by another trader on goods or services that are identical or closely related to the goods or services of the owner.
  • a graphic artist may use an image deceptively similar to the corporate logo as part of a design or a photograph of an item bearing a trademark as part of a collage. While the graphic artist may own the copyright in the work they create, depending on how the trademark is used, the use of the image or photograph may infringe the trademark owners rights. See the section below about images containing trademarks.

As a result, it is important that you do not consider copyright issues in isolation of other intellectual property rights.

7. Public Places and Art Works

The general rule is that it is permissible to take and sell photographs of public places, buildings and sculptures. However, there are exceptions in different countries around the world. For example, it is not permissible to take photographs of the Eiffel Tower at night time, and various building and monuments in the USA (e.g. Trans America building in San Francisco).

The custodians of some other public buildings vigorously protect the commercial exploitation of their intellectual property. For example, the Sydney Opera House Trust does not approve the use of images of the Sydney Opera House and its brand in commercial context where there is no association between the relevant business and Sydney Opera House. While there is no law specifically prohibiting use of images of the Sydney Opera House, use of an image of the Sydney Opera House may attract unwanted attention from the Sydney Opera House Trust if it believes that the use suggests an unauthorised association with it.

Councils and other government authorities may have restrictions on taking photographs for commercial use in certain areas e.g. on public beaches.

Because this area of the law can be a legal minefield, Envato has a house rule which prohibits the sale of items on any Envato™ marketplace that include photographs or images of artworks such as paintings, sculptures and some architectural buildings.

8. Images that Contain Trademarks

The reproduction, sale and use of images which contain trademarks is a complicated area of the law and whether it violates the trademark owner’s rights depends on the particular image and how it is used.

For example, if you take a photograph of a watch with the brand name clearly visible, you will own copyright in the photograph. If you license the right to reproduce and use that photograph to someone who publishes an on-line directory of pictures of watches, your sale of that photograph and the use of the photograph by the publisher is not likely to infringe anyone’s trademark rights. However, if you create an image that comprises of a silhouette of a pear with a bite taken out (i.e. deceptively similar to the Apple logo) and license the right to use that image to someone, who then uses it to brand a range of digital music players the position is likely to be different. While your sale of the image on its own is unlikely to infringe Apple’s trademark rights, the use of that image on digital music players is likely to infringe Apple’s trademark rights.

Due to the complexity of this area of the law, Envato has a house rule which requires that you obtain appropriate legal advice or all the necessary clearances, consents or licenses before you use images bought on an Envato™ marketplace that includes a trademark.

9. Images of People

The reproduction, sale and use of images of people is a complicated area of the law and whether it violates a person’s rights depends on the particular image and how it is used.

Special care needs to be taken with images where the main feature or subject of the image is a person or a recognisable feature of a person, especially if the person is a famous person.

It is common practice and prudent for an artist, photographer or producer to obtain a model release from the person who is the subject of the image – regardless of the intended use of the image. A model release is a legal document that must be signed by the person granting permission to use their face or recognizable feature.

The buyer of an image of a person from an Envato™ marketplace should not use that image in connection with goods or services in a way that suggests the person endorses the goods or services, or has an association with someone, when the person does not.

Envato has a couple of house rules which deal with these issues.

10. Useful links

The governments of many countries have websites which provide information about intellectual property rights and which provide advice based on the laws of the country.

A selection of links to these sites follows:

There are also many other free resources on the internet publishing information and advice about intellectual property and which can be readily accessed by use of a search engine. These include materials published by law firms and public sector bodies which promote the value of intellectual property and compliance with intellectual property laws, such as:

 

  • http://wix.com/roelofventer/roelofventer/ Roelof Venter

    Awesome! All in a nutshell, thank you!