Copyright Law and DMCA

Every now and then someone brings up copyright law, in particular, infringement, and related topics on some of the forums I belong to. So, I thought I’d talk about some of the main issues from the creator’s standpoint.

One of the most common questions I see is whether or not a writer, musician, course creator or any type of author/creator can just use something in their own work that is not in the public domain. That is, something that is copyrighted by someone else and still within the copyright period. For the most part, the answer is “no.” But, it’s the exceptions that confuse everyone.

About Copyright Law

One of the exceptions to copyright infringement is the “fair use” clause. This clause is found Title 17 §107:  Limitations on exclusive rights: Fair use and says:

“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—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This is perfectly clear until you go to use this information. Then it becomes clear as mud. I actually read most of this law several times. There are sections that don’t apply to anything I create, so I skipped them. But this section is one of the most important for determining whether you can or cannot use copyrighted material. If you’re creating courses that you charge for, it’s a commercial venture and not a nonprofit educational one. But if you’re using the information simply to compare or criticize, or show an example of what you’re teaching about, you might want to get a legal opinion if that product (a writing or course) is going to earn you an income.

The simplest thing to do here is to make sure you are using either public domain or royalty free photos, music, writings, etc.

You can download the Title 17, US Copyright Law PDF here.

The next most common question I see is how to deal with someone who has published your work without permission. You have several routes here, depending on whether you have suffered any loss or damages.

  • You can sue. This is costly, but if you have suffered significant damages it might be worthwhile
  • You can send them a DMCA letter. DMCA refers to the Digital Millennium Copyright Act of 1998. You can download that pdf here
  • Even if you have not filed for a Copyright Registration, your work if copyrighted immediately once you have fixed it in any medium, such as writing online or on paper, recording in audio or video, or painted in any of the media available, digital or physical. So many things are date stamped these days that it shouldn’t be hard to show when you created your work. Despite that, do something to date your work as soon as you start working on it. One way is to write © “the date” and your name or business name, and then set that text to white (if on paper) or the same color as the background of your work. Integrate it in a way that raises the fewest questions about when you did this. I’m not sure how to get the copyright mark (©) on a PC, but it should be similar to the Mac which is option-G. My option key says “alt” so try alt-g.

 

Affordable Legal Advice

Again, I’m not allowed, by law, to give legal advice, but I can share a few things that might be useful. Beyond that, if you’re uncertain, you really should get legal advice. There’s a few ways to do this.

  • Some attorneys will give you a free 30-minute introductory visit, and may tell you whether or not your intended use is legal or not. But attorneys prefer not to give their knowledge away for free, so he or she want you to schedule a paid appointment.
  • USLegalForms.com offers legal forms. For $19.95/month you can download any form in their library and use or modify it to suit your needs.
  • LegalZoom.com goes a step further. Not only can you pay a monthly fee to download forms you need, but you can also get legal advice for a fraction of what an attorney would charge.

Years ago when I was looking for model releases I subscribed to LegalZoom.com. My $19.95 subscription gave me the opportunity to download contracts in any category in addition to the releases. I now have a huge file of contracts to work from, far more valuable than the $19.95 I paid. So if you’re starting a business and need legal documents, these sources are excellent for forms, which most of us have no idea how to write. LegalZoom also offers legal advice from an attorney in whatever state you request, and assistance with documents, like wills.

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