Whose (Family) Line is it Anyway? A FAQ-like Guide to Cheapskate Copyright Law

by David Greenlee, J.D.
Copyright (c) 2005, David Greenlee

A quick search of the Internet will quickly reveal just slightly less than a gazillion sites which will give you information about how to go about registering a copyright and your rights as the owner of a registered copyright. If you listen carefully, however, you’ll hear whispers about not having to register in order to have a copyright, about not having to put copyright marks on your work for it to be copyrighted, and about how everything is automatically copyrighted.

All those things are, in fact, true. If you try to find out any information about them, however, you’ll find it to be rough going. Let’s see if we can’t make it a little easier.

Some things that must be said in advance: First, even though I’m a practicing attorney, I’m not a copyright lawyer and my practice is not in that area of the law. I learned what I’m going to say here in the process of helping My Wife The Genealogist chase off an infringer who had improperly taken several photos from her website. The knowledge I gained from that experience was sufficient to solve that problem, but might not be one hundred percent correct in all circumstances. Or fifty percent. Or maybe in any circumstances. Your mileage may vary. If it is important to you that you have a solid copyright or if your work is worth any money, don’t rely on these musings and don’t cheap out: Hire a real copyright lawyer (a.k.a. “intellectual property attorney”) and have her register your copyright. Second, what I say below applies only to the U.S. and only to words and pictures. Other kinds of work, such as sound recordings and movies, have special rules that I don’t know anything about. If your words or pix are in the U.S., then the protection I’m about to describe probably protects you in most foreign countries, too, but that protection may not be worth much for practical reasons, since you’d probably have to sue them overseas (and the overseas infringer knows that).

Q1: What can be copyrighted?
A1: Remembering that we’re just talking about words and pictures, just about anything. If it’s your own work, it can be copyrighted. Ideas, by the way, can’t be copyrighted (though in some circumstances you may be able to patent them). Titles, names, and suchlike also generally can’t be copyrighted (though in some circumstances you may be able to trademark them). Patent and trademark law are beyond the scope of this discussion.

Q2: What do you have to do to copyright something?
A2: One thing: Write it, draw it, paint it, or click your shutter. Bingo, it’s automatically copyrighted. Wasn’t that difficult?

Q3: It’s not copyrighted unless you file something with the Feds, right?
A3: Here, let me help you understand. Take a piece of paper and a crayon. Yes, the ugly gray one is okay. No, don’t use the white one if you’re using white paper. Write an original sentence on the paper with the crayon. Congratulations! You have a copyright! No filing required.

Q4: Even though I didn’t put a copyright mark on it?
A4: Yep. No copyright mark or copyright claim is required.

Q5: So what’s the catch?
A5: There always is one, isn’t there? Your rights, while genuine and worthwhile, are pretty limited. You can’t recover money damages from an infringer unless you can prove that you’ve actually lost money because of the infringement, you can’t recover attorney’s fees at all, you may have to pay to have your copyright registered before the courts will help you at all, and your work may be more vulnerable to a fair use claim than it would with a registered copyright. That’s the bad news. Here’s the good news: If you’re willing to bear the expense, a Federal court will probably issue an injunction to prevent an infringer from using or continuing to use your work. In other words, the courts will make an infringer stop using your work, but only if you’re willing to pay for your own lawyer. On the other hand, the infringer will either have to quit infringing, pay for his own lawyer to fight you, or take the chance that the court will fine him and put him in jail for contempt. Most infringers won’t be willing to go to that much trouble or risk and will just give in to your demand. If the infringing material is on the Internet, some additional good news comes from the Digital Millennium Copyright Act. If you complain to the host of the infringer’s website or to his Internet Service Provider that he or she is infringing your copyright, the ISP will become liable for the infringement if you make a complaint and the ISP fails to act. A copyright doesn’t have to be registered to qualify and most ISP’s will act quickly to force the infringer to remove the infringing material if you complain and can prove that the material belongs to you and not to the infringer.

Q6: If the infringer is making money from my work can I recover that money?
A6: Maybe, if you can prove that you could have made that money instead of the infringer, but even if you can, you may not be able to recover anything unless you can prove that the infringer knew your stuff was copyrighted. That’s a good reason to put a copyright mark on your work even though a mark is not required by law.

Q7: Are there any other reasons to put on a copyright mark?
A7: No legal reasons that I know, but it’s a good idea as a purely practical matter. Many people think that they can take and use anything that doesn’t have a copyright mark on it. That’s nonsense, of course, but many people feel that way. Putting on a mark clearly says that you don’t want it used without your permission.

Q8: Doesn’t leaving off the copyright mark mean that you’re giving your stuff to the public domain?
A8: Copyright law did a complete about-face a few years back. Before then it was incredibly easy to lose your copyright. If you let almost anyone see your stuff without a copyright mark you could lose your rights and anyone could use it without getting your permission. (That’s what being in the public domain means.) The same could happen if you found out someone was infringing your work but you didn’t immediately do something to stop them. The opposite is true today. It’s (almost) impossible to lose your copyright. In fact, the anti-public domain presumption is so strong that it is difficult to put your work into the public domain even if that’s what you want to do.

Q9: So how do you make a copyright mark?
A9: Since marks are no longer required, there’s no legal standard to satisfy. Just make your intention clear by something like, “Copyright (c) 2005, Your Name.” The (c) should actually be the letter c inside a circle, but I prefer the (c) for documents which may be published electronically, because some browsers, viewers, printers, or computers may not reproduce the c-in-a-circle correctly, even if it shows up correctly in your original. By the way, it is not illegal to use a copyright mark without a registered copyright.

Q10: When you said that you may have to register before the courts will help you, did you mean that you had to register to have a copyright
A10: No. If that were the case, you would have to register before the infringement took place. What I meant was that the courts in some parts of the U.S. say that you can’t file suit to protect a copyright until you register it or at least file for registration, but these courts also say that you won’t be penalized just because you didn’t register until after you found out about the infringement.

Q11: A friend wants to give me some photos she took to use on my website; if someone takes them from there can I sue them?
A11: Not unless she has, in writing, given you some exclusive right to use the photos, for example the exclusive right to use the photos on the Internet. Unless she has done that, only she can sue the infringer.

Q12: Isn’t it true that you can use other people’s stuff if you do it fairly? What is fair use?
A12: Fair use is probably misunderstood and abused more than any other part of the copyright law. When confronted by copyright holders, infringers instantly and inevitably claim fair use. Even more annoying, however, is the frequency with which people who run Infringers-R-Us websites seek to morally justify their actions through the fair use law. Both of those attempts are usually doomed to failure because the person making the claim has no idea what the fair use law really says. What does it say? It says that a registered or unregistered copyrighted work can be used for “purposes such as” criticism, comment, news reporting, teaching, scholarship, or research” without obtaining the permission of the copyright owner and without paying royalties. In order to determine whether a particular case is a fair use, you must look at a number of different “factors” listed in the statute. (The use of the word “factors” means that these are not rules but are considerations to be balanced in making a decision.) Some factors are listed in the statute and many others apply due to precedent set in court decisions. The ones in the statute are: (i) the purpose and character of the use, including whether such use is of a commercial nature [limited fair use] or is for nonprofit educational purposes [broader fair use], (ii) the nature of the copyrighted work, (iii) how much of the copyrighted work is used and whether the part that is used is the heart of the work or something less important, and (iv) whether the use will damage the market for or value of the copyrighted work. Since these are merely factors, a fair use claim may still prevail if the facts are compelling on two or three of the factors, even if the facts are weak or absent on the other one or two, but the courts are unlikely to approve a fair use claim in which one factor is missing. If two are missing the odds of approval do not go to zero, but do become infinitesimally small. (If, however, a copyrighted work has never been made available to the public, the statute says that a fair use claim must fail unless all four of the factors are proven.) There are many other court-created factors and court interpretations of factors to be considered, not all of which agree with one another, but a few principles can be extracted for those folks who want to rely on the fair use law. First, have a serious, good-faith reason for doing so (which does not mean that the use can’t be light-hearted or humorous, satire is an honored form of criticism). Second, don’t use more of a work than you absolutely have to; using all of a copyrighted work or using its most important parts will almost never be upheld; and don’t use so much of a work that it hurts the market for the work or its value to the owner. Third, the courts say that to obtain fairness you must have acted fairly, so don’t say or imply that work is your own work if it’s not, don’t fail to give complete, accurate attribution for what you use, and don’t expect the courts to honor any genuine fair use claims which you may have if you also make outrageous or bogus claims. Fourth, realize that the courts are going to considerably limit what you will be allowed to get away with under a fair use claim if the copyright owner provides an easy, reasonably-priced way to obtain permission to use a work. In the final analysis, the best advice that can be given about the fair use doctrine really boils down to this: Don’t use the fair use doctrine to take unfair advantage of a copyright owner. Much more could be said about this issue, but too much space has been devoted to it here already. Though intended for educators, the Copyright & Fair-Use FAQ webpage at the Indiana University website is a good place to obtain more detail and background on this subject:http://www.iu.edu/~vpgc/areas-of-law/copyright-ip1/copyright-ip-faq.shtml.

Q13: Are unregistered copyrighted works more vulnerable to a fair use claim than registered works?
Q13: They aren’t more vulnerable just because they’re not registered, but unregistered copyrights are more likely to exist in circumstances in which one or more of the fair use factors are not in favor of the copyright owner. For example, it may be difficult to prove that the value of unregistered essays posted on a public hobby website will be much impaired by some third party’s use of substantial parts of them. While the courts may allow a wide scope of fair use in those situations they are not, however, going to allow such a breadth of fair use that works are, in effect, put into the public domain. Anything the copyright owner can do to bolster the equity of his copyright claim will, however, be useful in this situation. For example, using a copyright mark and publicly stating a fair, easy, and inexpensive way to obtain permission to use the work will go a long way towards deflecting a fair use claim.

Q14: Where can I find out more about copyright law?
A14: One of the best places to start is the publications of the U.S. Copyright Office. You can get them all online at http://www.copyright.gov.

Q15: Can I hire you to help me with my copyright issues?
A15: No, I’m afraid that I can’t. I’m the one-person legal staff for a rapidly-growing corporation and I limit my practice to that client. You would be better off, moreover, with someone in your own town or region, preferably someone who specializes in intellectual property law. One reasonable way to find someone who is right on target is to use the search form at http://www.martindale.com. Martindale is the oldest, most comprehensive, and most respected lawyer directory in the country and has been widely used for decades. The best thing about it is that it can give you some idea of a lawyer’s quality. Here’s how to use it. In the “Look for” blank make sure it says “Lawyers only,” drop the list under “Select general area of practice” and choose “Intellectual Property,” type in the city you’re interested in, and select the right state. Don’t change or fill in anything else. Skip all the remaining blanks and click the Search button that’s below them. You ought to get a list of lawyers. Work your way down through them looking for the ones whose Practice Area lists intellectual property, patent law, copyright, and/or trademark and not much else (if trade secrets is listed with one or more of those entries, don’t worry about it, it’s okay). When you find one, click on the name and the next page that comes up will be about just that lawyer. For a few, probably about a quarter or a third, you will find just after their name and contact data a line that says one of these three things: “AV Peer Review Rated,” “BV Peer Review Rated,” or “CV Peer Review Rated.” These ratings are given to a lawyer by the other lawyers in their community. While the “official” guide says that they mean AV – Very High to Preeminent, BV – High to Very High, and CV – Good to High, if I had to hire an attorney to represent myself or my client I’d probably not hire anyone rated CV unless he or she was my only choice and maybe not even then. As between AV and BV, I’d choose an AV if I’m in a major metropolitan area, I need the best, and price is no object. I’d also choose an AV if I’m in a rural or other area where lawyers’ per-hour rates are probably fairly low. In other circumstances, however, I wouldn’t hesitate to choose a BV. The absence of a rating cannot, however, be read to mean much. Since the ratings depend on other lawyers’ knowledge about one another, non-litigators such as transactional and office-practice lawyers (which includes some intellectual property lawyers) can sometimes go for a long time before they ever get rated, whereas litigators tend know one another from the courthouse. Once you’ve picked three or four, call their offices and ask how much it usually costs to register a plain-vanilla copyright for a book or essay. It’s okay to talk to their associate, legal secretary, paralegal, or legal secretary and it’s also okay for them to tell you that the attorney will have to call you back with that information. While you probably won’t be able to get them to commit themselves to a fee on the phone, you ought to at least be able to get them to give you a ballpark idea. If they won’t do at least that much on the phone, they’re either not all that interested in doing business with you or something is wrong. Drop them off your list and pick someone else; life’s too short to bother with them. Once you’ve got a range of prices, remember that you’ll usually get what you pay for and you may want to be wary of any estimate which is a lot lower than the others.

The author hereby donates all rights in the foregoing essay to the Polish Genealogical Society of America (“PGSA”) provided that: (i) all rights donated to PGSA shall be non-exclusive save and except for the right of first publication which shall be held exclusively by PGSA and (ii) PGSA shall be obligated to provide a byline in the form “by David Greenlee, J.D.” and copyright notice in the form “Copyright (c) 2005, David Greenlee” or “Copyright (c) 2005, David Greenlee and PGSA” each time the essay is published or republished in whole or in part.