Some Observations on Copyright Law
Copyright 1997-2001, 2004, 2009, 2012 Ronald B. Standler
Table of Contents
Copyright Law in the USA
using someone else's text in your writing
copying on the Internet
future directions for copyright law
registering a copyright in the USA
links to copyright resources
copyright infringement hurts authors
This essay is a terse survey of part of copyright law.
The July 2005 edition of the United States Code
Annotated, Title 17, which contains the complete U.S. statutes on copyright law,
together with historical notes and one-sentence summaries of
important court cases, has a length of 1681 pages,
clearly too much to summarize in any short essay.
For more detail, the mostly widely recognized treatise is
Nimmer on Copyright, which is in 11 volumes.
This essay is intended only to present general information about an interesting topic in law
and is not legal advice for your specific problem.
See my disclaimer.
I am an attorney
in Massachusetts who concentrates in copyright law, among other areas of law,
but I provide legal advice only after being hired, considering your situation carefully,
doing any necessary legal research, and writing an opinion letter.
This essay shares some information on several topics that interest me:
A polite assumption would be that people are not aware that copying is
unlawful: it is a violation of copyright laws and the property
rights of authors. This document gives a brief sketch of the nature
of the rights protected by copyright law. Unfortunately, any discussion
of enforcement of intellectual property rights gives an offensive impression
of being told not to steal towels from a hotel. <grin>
- plagiarism of text
- infringement of copyright when using photocopy machines
- duplication of web pages and text on the Internet
Copyright Law in the USA
Copyright occurs automatically when both of two conditions are satisfied:
17 USC §§ 101, 102(a), 302(a).
- the creation of an original work and
- "fixation of that work in any tangible medium of expression."
Loading copyrighted material into a computer's semiconductor memory does
create a fixation that satisfies the legal test for copying.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9thCir. 1993),
cert. dismissed, 510 U.S. 1033 (1994).
The current law in the USA requires neither a notice of copyright
(e.g., "Copyright 1997 Ronald B. Standler") nor registration of the
work with the U.S. Copyright Office. 17 USC §§ 401(a),
407(a), 408(a). However, if a work does have a notice, then an infringer
can not claim a "defense based on innocent infringement in mitigation
of actual or statutory damages". 17 USC §401(d).
And if a work is registered, then:
Note that 17 USC § 412 requires registration of a work before the infringement,
as a condition for both statutory damages and an award of attorney's fees to plaintiff.
Therefore, authors should register their copyright before the earlier of the first publication
or first public display of their work.
- the registration is prima facie evidence of the validity of the copyright
in litigation for copyright infringement. 17 USC §410(c).
- the author may file suit for infringement of the copyright. 17 USC §411(a).
- the author may seek an award of statutory damages between US$ 750 and US$ 30 000
(i.e., the author is entitled to money from the infringer, without the author needing to show
financial loss from the infringement). If the infringement was "willful", the statutory
damages can go as high as US$ 150 000. 17 USC §§412, 504(c).
- a court may require the infringer to pay all of the attorney's fees of the author.
17 USC §§412, 505.
An author of a copyrighted work has the following exclusive rights conferred
by 17 USC §106:
- to reproduce the work (e.g., to make copies)
- to prepare derivative works (e.g., translation, abridgment, condensation, adaptation)
- to distribute copies to the public (e.g., publish, sell, rental, lease, or lending)
- to perform the work publicly
- to display the work publicly
The Berne Convention for the Protection of Literary and Artistic Works,
Article 6bis(1), states:
- Independently of the author's economic rights, and even after the transfer
of the said rights, the author shall have the right to claim authorship of the
work and to object to any distortion, mutilation or other modification of,
or other derogatory action in relation to, the said work,
which would be prejudicial to his honor or reputation.
Unfortunately, the U.S. national law does not recognize such "moral rights"
of authors (except for the special case of authors of visual art, such as
paintings, 17 USC § 106A), although such rights for all authors are
clearly specified in The Berne Convention for the Protection of Literary
and Artistic Works quoted above, and despite the claim of
the U.S.A. that, since 1 March 1988, the national law in the U.S.A. complies
with the Berne Convention. 17 USC §104(c).
I have posted a separate essay on moral rights of authors
in the USA, with emphasis on rights of scientists, professors, and students.
Works of the U.S. Government (e.g., statutes, opinions of federal courts)
are not protected by copyright inside the U.S.A. 17 USC §105.
See my separate essay.
The duration of the copyright in the USA for works created after
1 Jan 1978 is life of the author plus an additional 70 years.
17 USC §302(a) (amended 1998, current Nov 2008).
For works created before 1978, see the
chart created by
Prof. Laura Gasaway, Head of the Law Library at the University of North Carolina at Chapel Hill.
Peter B. Hirtle, a librarian at Cornell Univ., has a more comprehensive
Plagiarism is defined as quoting or paraphrasing text from another author without both
(1) the indicia of a quotation and (2) a proper bibliographic citation.
The indicia of a quotation is either (1) enclosing the text in quotation marks or (2)
formatting the text as an indented, single-spaced block.
Information about the form(s) of a bibliographic citation is given
in academic style manuals (e.g., The Chicago Manual of Style).
At a minimum, a proper citation must contain the
author's name and enough information about the source of the quotation, so that the reader
can easily find the quotation in the original. For quotations from a webpage, the author's name
and the URL of the webpage must be given.
I have posted separately a long, detailed discussion of the legal aspects
plagiarism in colleges in the USA,
with emphasis on plagiarism by college students and the sale of term papers.
My essay on plagiarization includes quotations from many court cases in the USA.
Note that paraphrasing or other trivial changes in copied text, in an attempt to avoid copyright
infringement, are specifically prohibited by law in the USA:
As an example, Steinberg v. Columbia Pictures, 663 F.Supp. 706 (S.D.N.Y. 1987)
held that a Columbia Pictures' promotional poster for a movie infringed the copyright
of an illustration on the cover of a
New Yorker magazine, although the details in the movie poster had been changed from the
magazine cover (only the words "Hudson River" were the same in both items), the judge ruled
that the movie poster was "substantially similar" to the magazine cover.
- Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) ("It is of course
essential to any protection of literary property ... that the right cannot be limited literally
to the text, else a plagiarist would escape by immaterial variations.") (Learned Hand, J.),
cert. denied, 282 U.S. 902 (1931);
- Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) ("... no
plagiarist can excuse the wrong by showing how much of his work he did not pirate.")
(Learned Hand, J.), cert. denied, 298 U.S. 669 (1936).
Amendments to the U.S. Copyright statutes in 1998 included a new section
making it wrongful to "intentionally remove or alter" any one or more
of the following items:
17 USC §1202.
- the notice of copyright,
- the title of the work,
- the author's name and other identifying information about the author,
- the copyright owner's name and other identifying information about the copyright owner, or
- "terms and conditions for the use of the work."
Violation of this section entitles the copyright owner to statutory damages
between US$ 2500 and US$ 25 000 for a first offense by
the defendant, or payment of actual damages, whichever are greater.
For a subsequent offense by a defendant within three years,
the damages may be tripled
(i.e., statutory damages of at least US$ 7500).
In addition, the judge "may award reasonable attorney's fees to the
prevailing party". 17 USC §1203.
These new penalties for removing or altering a copyright notice give
authors and owners of copyrights a new tool to prosecute plagiarists.
Under the doctrine of fair use,
an author may make short quotations for purposes of criticism, comment,
news reporting, teaching, or scholarship, without first obtaining permission
of the copyright owner of the quoted work.
However, every quotation must be clearly identified with
the source of the quotation and the name of the author of the quoted text.
For many years, fair use in the USA was common law (i.e., law created by judges), but the
Copyright Act of 1976 included fair use:
The meaning of these words in 17 USC § 107, and the relative weight of each
of the four factors, have been interpreted in a long series of court cases,
of which the following are particularly important:
- Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include
The fact that a work is unpublished shall not itself bar a finding of fair use
if such finding is made upon consideration of all the above factors.
- the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the
- 17 USC § 107 (amended 1992).
There is little guidance that gives a precise, quantitative determination
of the line that divides fair use from infringement. The concept of fair use is one
of the most difficult topics in copyright law.
- Sony v. Universal, 464 U.S. 417 (1984);
- Harper & Row v. Nation, 471 U.S. 539 (1985);
- Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994);
- AGU v. Texaco, 60 F.3d 913 (2dCir. 1994), cert. dismissed, 516 U.S. 1005 (1995).
Originally, fair use only applied to authors who made short quotations when preparing new works.
Since the early 1970s, some attorneys have argued that fair use also applies to
photocopying and other forms of exact reproduction. I am aware of many judicial opinions
that hold that making a verbatim copy of an entire
chapter in a book, an entire article in a scholarly journal, or an entire webpage is
not fair use under the law of the USA, even if done by a teacher or professor.
The topic of fair use is controversial amongst specialists in copyright law, and too complicated
to discuss here. The safe advice is to get permission of the copyright owner before
making multiple verbatim copies of any copyrighted work.
The legislative history of the Copyright Act of 1976,
U.S. House of Representatives Report 94-1476, contains a privately negotiated set of
guidelines for photocopying by nonprofit educational institutions.
These guidelines do not follow fair use law in judicial opinions, furthermore,
these guidelines are not legally binding on a court in the U.S.A.
I now believe these guidelines are not only worthless, but also misleading.
I posted an HTML version of these guidelines
on the Internet as an independent document, to clearly separate these guidelines from my own writing.
using someone else's text
In the context of creating a webpage (but also valid for writing in other contexts),
let's discuss several methods to make a webpage
and how copyright law views each method.
in your writing
- Find some text or a picture elsewhere and upload it to a website, without any changes.
This is blatant copyright infringement, a violation of the copyright owner's exclusive
legal rights under 17 U.S.C. § 106 to publicly display the work.
- Find some text elsewhere; copy it; make a few changes, deletions or additions;
and then upload it to a website.
This is copyright infringement, a violation of the copyright owner's exclusive
legal rights under 17 U.S.C. § 106 to make (or to authorize) derivative works.
- Find some text elsewhere, copy a small part of it,
and include it as a quotation in your work. To avoid plagiarism,
be careful to both (a) use the indicia of a quotation
(i.e., either quotation marks or indented block of single-spaced text) and
(b) include a complete bibliographic citation
(e.g., author's name, title of work, URL, etc.) to the source of the work.
This is the only acceptable way of using text written by someone else in your webpage
or other writing.
Copying illustrations, diagrams, or photographs (e.g., scanning a printed
image or copying a GIF or JPEG file) always requires permission of the
copyright owner, unless the works are clearly in the public domain
(e.g., either a work produced by the U.S. Government or a work that was initially
published before 1922 and was registered with the U.S. Copyright Office).
why undesirable to post infringing copies on Internet
According to the federal statute, 17 U.S.C. § 106(5),
the copyright owner has the exclusive right to publicly display
the copyrighted work. That means the copyright owner does not
need to explain to copyright infringers why the copyright owner objects
to unauthorized public diplay of copyrighted work. However, there are
several rational reasons why it makes sense to display an author's work
only at the author's website:
- Aside from legal implications of copyright infringement, reposting of material from other web
sites can be an inconvenience to other users. The author may revise the original document
frequently, but copies posted by other users will not be revised (indeed, the author may not know
of the existence of these copies). The easiest way for everyone on the Internet to have the
freshest information is to have only the author post the document. Other people can post a
hypertext link to the author's document, to refer their readers to the most recent version of the
document at the author's site.
- The author may spend more than 100 hours of unpaid time to research,
write, and revise one webpage. The author may intend that webpage to be part
of a personal portfolio at the author's website, showing examples of the
author's work that lead clients to hire the author.
Unauthorized display of the author's work at
an infinger's website diverts readers from the author's website,
when search engines send readers to a copyright infringer's website.
If an author's work is posted at an another website, third-parties may link to
the other website, again diverting readers away from the author's website.
This is essentially an unfair competition claim: the author did the work,
but the infringing website receives readers.
- An author may use relative links in an HTML webpage
(e.g., <A HREF="filename.htm">link</A> ).
When such webpages are copied to another website, the relative links will
not correctly function, unless all of the linked webpages are also copied.
- Displaying the same work at more than one website makes redundant
entries in results of search engines. When I ask Google to display 50 webpages,
I expect fifty different webpages, not many copies of the same document.
- Authors are hurt by seeing their personal property
copied and displayed elsewhere, especially when their name is removed (i.e.,
the author's work is plagiarized).
I have seen many web sites with collections of images that contain a notice
similar to the following:
That may be a pleasant statement, but it shows a serious misunderstanding
of copyright law. The law requires that the author of a web site, book, etc.
ask permission of the copyright owner before either copying or displaying any
copyrighted work. The burden is on the copier to ask permission.
It is not the duty of the copyright owner to cruise the Internet and
ask authors to stop infringing a copyright. In fact, the copyright owner
can file copyright infringement litigation immediately on discovering
the unauthorized use of copyrighted material.
- If you find an image that belongs to you and you do not want it displayed
here, send me an e-mail and I'll remove it immediately.
And, when you ask for permission, do not say "If you do not reply, I will
assume you granted permission."
(I have actually received many e-mails with such wording!)
The only way for a copyright owner to grant permission is to make a statement —
either a general statement in his/her terms-of-service webpage
or a specific statement in reply to a request for permission —
that copying is acceptable to the copyright owner.
The default setting (i.e., no reply from the copyright owner) is
that there is no permission to copy.
Photocopy machines have been commonly used in libraries and offices since
the mid-1960s. Yet the business and legal community was startled in
1991-1996 by a series of federal cases that held that some common uses of
a photocopy machine were copyright infringement:
That these cases appeared more than thirty years after the introduction of the
photocopy machine shows how slow law is to respond to new technology.
- Basic Books v. Kinko's, 758 F.Supp. 1522 (S.D.N.Y. 1991);
- AGU v. Texaco, 60 F.3d 913 (2dCir. 1994), cert. dismissed, 516 U.S. 1005 (1995);
- Princeton Univ. Press v. Mich. Document Service, 99 F.3d 1381 (6thCir. 1996),
cert. den., 520 U.S. 1156 (1997).
The Princeton Univ. Press v. Mich. Document Service case is
particularly important for professors. In that case, professors
copied chapters of books and articles in scholarly journals, then
handed the set of photocopies to Michigan Document Service to
reproduce into a custom-made textbook for students. Of course,
no royalties were paid to the owners of the copyrighted material
that was photocopied and distributed. The courts held that this
copying was an infringement of copyright.
Aside from legal issues of copyright infringement, a professor
should set a good example for his/her students, by respecting
copyrights of other authors.
Copying on the Internet
Most of copyright law was formulated in terms of books, audiovisual works
(e.g., motion pictures), and sound recordings. While the basic principles
of copyright law are the same for all media, it is not
yet clear how some of these principles apply to the Internet.
The act of viewing a page on the Internet automatically involves making a copy,
since the material is transferred to the user's computer and stored there
in semiconductor memory (also called RAM, an acronym for "random access memory").
This copy is arguably not infringement,
because authors post documents on the Internet with the intent of having other
people read the documents, so there may be an implied license to copy web pages during the
reading of them. Moreover, the copy in RAM evaporates when the machine is switched off and
the copy in RAM is overwritten when the next document is read, so the copy in RAM is not
Some browsers, such as Netscape, make a second copy of a document on the hard disk
drive (e.g., for Netscape running under Windows 3.1, typically as a file in
C:\NETSCAPE\CACHE\*.*). The purpose of this second copy is to make
access quicker when the user presses the Back button on the browser.
Retrieving a copy from the hard disk on the user's machine is much faster
than reading the document again from the source machine and again
transmitting the document through the Internet. While this second copy is
a convenient feature of a browser, the designer and programmer probably
gave no thought to the implications of this copy under copyright law.
The cache directory on the user's hard disk is set by default in
Netscape 3 to five megabytes of the most recently accessed documents.
Once this limit is reached, the browser automatically deletes
the oldest document to make room for the current document.
The copies in cache on the hard disk will survive
switching off the user's machine, but the copies will not survive repeated
accessing of more documents from the Internet.
The copy in cache is arguably acceptable practice under copyright law,
provided that this copy is not used for any other purpose.
A third way to make a copy with a browser is to use the Print
command to make a paper copy of the document.
Such copying may be infringement of a copyright
or there may be an implied license from the author for such paper copies.
If a court finds that there is an implied license, a court could still
find infringement, if the licensee's use exceeded the scope of
the implied license.
A fourth way to make a copy with a browser is to use the
Save As command from the File menu.
This command saves the HTML, JPEG, or other file on the user's hard disk
with a filename chosen by the user.
Such copying is infringement of a copyright.
Servers operated by local Internet Service Providers obviously transmit
a copy of documents requested by their users.
A new section of the copyright law,
17 USC § 512(a) (1998),
provides immunity from infringement to Internet service providers
who automatically transmit or route copies of material in response to
requests from users. Another new copyright law provides immunity from
infringement to Internet service providers who maintain a temporary copy
(called caching) of a frequently requested document on their server,
to reduce the amount of long-distance communications and to decrease
17 USC § 512(b) (1998).
Internet service providers (ISPs) and colleges should be aware of
amendments to the copyright statutes in 1998 that provide the
corporation or college with immunity from infringement by their
customers or students, if the ISP or college complies with certain
requirements prior to the infringement.
Consult a local attorney who is familiar with copyright law for details.
Posting a document on the world wide web is not publication. Publication is defined in the
U.S. Copyright statute as
17 U.S.C. §101.
- ... the distribution of copies ... of a work to the public by sale or other transfer of ownership,
or by rental, lease, or lending. .... A public performance or display of a work does not of
itself constitute publication.
Posting a document on the world wide web is a "public display" of the work, which is among the
rights exclusively reserved to the owner of the copyrighted work. 17 USC §106(5).
Finally, this essay emphasizes the law in the U.S.A. However, copyright law
in many other countries differs in details from the law in the U.S.A.
Therefore, copying that is legal in the U.S.A. might be a violation of the
author's rights in another country, something of concern given the
international nature of the Internet. One important example is the law in
the U.S.A. does not recognize moral rights of authors,
although such rights for all authors are clearly specified in The Berne
Convention for the Protection of Literary and Artistic Works,
Article 6bis, and despite the claim of the U.S.A. that,
since 1 March 1988, the national law in the U.S.A. complies with the
Berne Convention. There is already a case, in a different context
than the Internet, that illustrates these differences in national laws.
John Huston's black and white film Asphalt Jungle
was converted to color by the Turner company. Turner then contracted with a
French television network to show the color version. Huston's heirs sued
in a French court, with a claim that Turner had violated Huston's moral rights.
Note that Huston, the company that produced the original black and white
movie, and Turner were all American, and both the black and white movie
and the colorized version were produced in the USA. Under the usual
conflict of law rules, the law of the USA should apply: (1) the studio,
not Huston, was the author and (2) there are no moral rights of authors
in the USA. Instead, the highest French court, in
Huston v. La Cinq Cass. civ. 1re (28 May 1991),
applied French law, because they believed moral rights of authors,
as part of basic human rights, were of higher importance than contract law.
The French court held that the protection of moral rights of authors did
not depend on the law of the country of origin of the work. Hence, the
television network was enjoined from showing the color version of the movie.
future directions for copyright law
Copyright law in the USA seems to have been written by lobbyists
for publishers and motion picture studios, in that legal protection
for rights of authors is markedly less than in France or Germany,
or even in the Berne Convention.
Since the 1980s, one sometimes sees proposals in the USA to end copyright law.
Most of these proposals recognize the ease of making copies
with a photocopy machine or with a computer (e.g., copying a program
or downloading a file from the Internet), then simply assert that the
ease of making a copy has somehow made copyright obsolete.
In my opinion, this type of argument is like a child who claims that
algebra is difficult to learn, therefore he/she should not be expected
to learn it. I suspect that many of these proposals are really
nothing more than a disguised attempt to further reduce author's rights,
by weakening copyright law.
The fundamental purpose of copyright law is to provide an incentive
for authors to create expression, by recognizing that expression as a
kind of property. The invention of photocopy machines and personal
computers in no way changes the desirability of protecting authors'
registration of a copyright in the USA
Most people register their copyrights without the assistance of
an attorney. The U.S. Copyright Office
provides forms for registration of documents, as well as online registration.
However, any questions about the legal terms used on the
application form (e.g., Was this a work for hire?),
should be referred to an attorney who is both licensed
to practice in your state and familiar with copyright law.
I registered 131 copyrights during 1997-2011.
In mid-2008, the Copyright Office began online registrations, which are
now routinely processed in about three months.
links to copyright resources
The U.S. Copyright Office homepage.
My subhomepage on copyright law lists
my services and links to my other essays on copyright law.
The following Internet web pages may have useful information on interpretation of
"fair use" in academic settings and other practical interpretations of
copyright law. Note that I am not endorsing any of their opinions!
In particular, many professors commonly assert broader "fair use" privileges than what
I believe the law in the USA actually permits.
list of links to copyright resources
See the above university websites on copyright, plus:
Yale Univ. Library by Ann Shumelda Okerson, list of university webpages on copyright
Note that there are many webpages on the Internet containing false or misleading statements
about copyright law. Please check the author's credentials and the authority cited by the author
for his/her statements before accepting them either as true or as good advice.
- copyright law classes:
- Prof. Jessica Litman Univ. of Michigan,
- Prof. Jay Dratler Univ. of Akron
- Prof. Dennis Karjala Arizona State Univ.
Periodicals in the USA commonly grant a license to make a copy for personal or
business use that exceeds fair use, provided that the stated fee is paid directly to the
Copyright Clearance Center.
copyright infringement hurts authors
This essay has focused on the legal issues of copyright.
But there is also a personal, emotional issue when an author
finds his/her work copied without permission or worse plagiarized.
Copyright infringement and plagiarization hurt the true author.
In one famous example of copyright infringement on the Internet,
Gene Ziegler at Cornell University in 1994 wrote a lovely
of writing in technical manuals in the style of Dr. Seuss books for children.
His parody was not only copied without
his permission and posted at more than 200 different Internet sites,
but also the copiers removed Ziegler's name, often making him anonymous,
but sometimes giving someone else credit for Ziegler's parody.
One bastard version of about half of Ziegler's work appears as
What If Dr.Seuss Did Technical Writing?,
which was attributed to "Anonymous" in Roseville, California.
While this version has been removed from the Stanford University webserver,
in March 2006 my search in Google
for the title found more than fifty copies on the Internet .
One year after creating the original parody, Ziegler wrote a bitter parody
Hang the Information Highwayman!
Dr. Caroline Bowen, a speech-language pathologist in Australia, has had
parts of her website plagiarized by many people.
When she complained about the plagiarism, most plagiarists quickly removed
her material from their websites, but "several have been outraged
that I would object!"
She finally had enough of plagiarists and posted a
that specifically discusses plagiarism.
Most people who do improper copying on the Internet
probably never created any prose or poetry that is good enough that
someone else would want to copy it. But even a dog distinguishes between
his Master's property and someone else's property.
To fight back against the many students, and some professors and attorneys, who have
violated my copyrights, in January 2003 I began posting my new essays in
Adobe PDF, with both printing disabled and cut-and-paste disabled,
to make it more difficult for other people to violate my copyrights.
this document is at http://www.rbs2.com/copyr.htm
first posted 27 Dec 1997, modified 17 April 2012
list of my other essays on copyright law
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