This page is an open source guide to copyrights and trademarking for organizations dedicated to open source creation and sharing. Its purpose is to:
This page includes the following sections:
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Oz Czersk: Lawyer Specializing in Trademark and Copyright Law
Copyrights, or literally the right to copy an artistic work, has been around for quite some time. The main reasons they exist are to (1) ensure proper credit is given to an artist (which in turn will allow them to earn a living off of their creations) and (2) to extract tax revenue from these artists. This, initially, was the reason copyrights were created in Europe. With the invention of the printing press, artistic works were more widely available and as things typically go, people were making money off of it.
Before this time it was common and expected that artists would just take from each other. William Shakespeare, for instance, took heavily from outside sources to create some of his most famous plays, including “Romeo and Juliet.” The thinking went “I own this book. I paid for it. I can do whatever I want with it. Including making copies and putting my name as the author instead of the original author’s.” British courts disagreed and thus the right to copy was born, eventually being codified into the Statute of Anne in 1710.
The Statue of Anne applied solely to the printing of books, but eventually copyright laws would encompass pretty much everything. Copyrights now cover and include maps, paintings, photographs, live performances, dances, sculptures, and now even architecture and ship hulls (literally the shape of the bottom of a ship). The justification, then, was that a book printer typically paid a decent amount of money to an author to be able to exclusively print his books and if anyone else could print books as well, then business would suffer and eventually few people would risk paying any author to print a book. Taking this argument to its extreme, if no book printer would pay an author then there would be little incentive for any authors to write and culture would suffer since reading books was one of the few ways to both be entertained and to learn new ideas and new information.
The Statute of Anne, however, did not apply to the colonies, of which America was a part. Eventually, the United States inserted a provision into the Constitution covering copyright and patent protection to promote “science and the useful arts,” the theory being that if an author can protect his ability to claim credit and restrict who can reproduce his work (i.e. who can print and sell copies of his book, maps, charts, music, etc.) then more people will be willing to create these things that will benefit society as a whole, which is the general underpinning of copyright law today throughout the world.
Currently, in essentially every country on the planet, copyright protection is automatic upon creation of the work. No registration is needed to protect your work, but up until the late 80’s this was not the case. If you did not register or display the proper copyright notice on your work it automatically fell into the public domain.
Now an artist automatically owns their work upon its creation. That means he/she owns all the various rights to it: reproducing it (i.e making copies of a photograph); recreating it in a different medium (i.e. a painting is put on a t-shirt); making a derivative work (Iron Man 4, Iron Man 5, Iron Man 6, etc). However, it typically is a good idea to register the work regardless since it only costs $50 online and if you want to sue someone you would have to register regardless when you file your lawsuit. Further, copyright law allows for statutory damages, but only from the date that you register forward. So if someone copies your work in February but you file in September, you can only get statutory damages from September on, which can be in the six figure range for each instance of an unauthorized copy of something like a popular song, which is why record companies went after teenagers claiming tens of millions of dollars in damages for downloading twenty songs.
Why do statutory damages exist? Well, art is a very uncertain business. It is extremely difficult to prove how much an artist would have made if not for an unauthorized copy. It legitimately could have been nothing; however, the statutory damages also act as a deterrent to future wrong-doers. If you brazenly steal a completely unknown artists’ work and suddenly become the next Keith Richards while the actual talented creator languishes without any recourse, there being nothing the original artist can do, on a societal level it will deter creation and future culture.
Lengths of copyright protection have steadily increased. What was once two to five years has now become either (1) the lifetime of the creator plus 90 years after death or (2) 100 years after the date of creation for a company. If this to you seems like a long time, you are not alone. There are many arguments both for and against, but that is just what the law is now.
Certain things are not copyrightable. Some things such as themes or settings are just too vague to be protected. How many different stories about alien invasions are there? How many stories exist about superheroes in New York? Vampires? Werewolves? Zombie apocalypse? Look at the explosion of young adult novels and films. In order for it to be infringement not only does there need to be similarity there also needs to be access to the original work. Typically, this is shown with emails, online submissions, phone records, and testimony about meetings, among other things. In the recent case over the “Blurred Lines” song by Pharrell Williams and Robin Thicke the court looked at the similarity of the two songs by comparing the sheet music to both (the actual notes and how they were arranged) and at the “access” that Williams and Thicke had. The Marvin Gaye song that “Lines” was found to be similar to, “Got to Give it Up,” was freely available to millions having been a hit decades before. Not a great argument for Gaye’s family since anyone could have copied it. But, they questioned both Williams and Thicke and showed interviews and articles where they both had said that Marvin Gaye was a big influence on them both and that specifically “Got to Give it Up” influenced “Blurred Lines.” The songs being similar and their testimony that they were heavily influenced by the song showed the court that they copied the song.
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In the context of the open source community, why would you want to copyright anything at all? Ironically, for the very reasons the open source community is dedicated to keeping information free and open for public use. These reasons can be categorized and organized under three primary understandings:
Someone has copyrights as soon as something is created (i.e. written down, drawn, sculpted, etc.). Registering, as noted above, is entirely different. If someone is going to have the copyright to something, it might as well be the organization that is distributing the open-source material. Which leads to the next point.
This seems extremely counter-intuitive, however, this is one of the best ways to ensure your material stays in the right hands, namely everyone’s. This is best explained through the following example: Alan and Barry are working on something they want to distribute to the entire world that is copyrightable but not unique enough to be patentable (say a song) in their free time. Alan and Barry both write equal, smaller amounts of the song that they then put together to create the entire song but notice it is not sounding as well as it could. Cathy sees the composition and sends Alan and Barry some lyrics she has just come up with on her own, thinking it will make everything work better. And it does. Alan and Barry tell Cathy they want their song to be open source to which Cathy simply replies, “Cool.”
The song with lyrics is recorded and distributed for free. Eventually, it becomes a hit and people listen to it on the radio, online, and download it all for free according to Alan’s and Barry’s plan, but Cathy wants to be paid for her contribution and so she sues… Everyone. And she eventually wins since Alan and Barry had no agreement with Cathy over the nature of their open source song and Cathy’s contribution to the song is equally protectable under copyright law. Merely telling Cathy of their plan for the open source song is not enough to form an agreement between them.
Since Cathy wrote the lyrics she automatically owned the copyright in them and it does not matter at all that the original intent of Alan and Barry’s song was supposed to be open source. In fact, legally speaking, Alan and Barry used Cathy’s lyrics without permission. If they wanted for their song to remain open-source they:
A contribution like Cathy’s to an open source project occurs all the time, but to ensure that later on down the line somebody does not come back and restrict access to anything open source, it is ultimately important to clearly define what can and cannot be used and how it will be used in the future. This is typically very easy, in fact, and requires no more than a sentence or two such as:
By contributing to this open source project you are transferring ownership in your contribution to ____________. As part of the open source nature of the total work you are contributing to, you in turn shall receive a life-time, non-exclusive license to use the total work on a royalty-free basis.
As we’ve said before, an artist automatically owns their work upon its creation. However, it typically is a good idea to register the work regardless since it only costs $50 online and if you find yourself in a lawsuit with someone, you will have to register regardless when you file your lawsuit. Further, copyright law allows for statutory damages, but only from the date that you register forward.
On the note of protection, it’s also important to consider the scenario where Cathy’s lyrics from above weren’t original. Oftentimes, collaborators on the internet either do not know much about various laws or simply do not care. Many people think that just because something has been posted on the internet that it is “in the public domain.” Nothing could be further from the truth. Think of it this way. Just because you park your car in your driveway, does it mean anyone can take it? No. Similarly, just because you post something on the internet does not mean you can take it (ie. copy and use it without permission). Yes, there is the creative commons, but the creative commons is a type of license allowing for certain uses. Something that utilizes the creative commons license is not truly in the public domain. In the example above, if Cathy takes Dina’s poem and claims they are her’s or simply says nothing and Alan and Barry use it in their song, Alan and Barry are on the hook for using the lyrics without permission. Any good licensing or transfer agreement will have a section that basically says ‘you came up with whatever you are giving me, or you have permission to use whatever you are giving me, or you are going to get whatever you are giving me’ along with a section that basically says ‘if I get sued for what you are giving me you are going to pay for all of the costs involved in defending the lawsuit even if nothing ultimately happens.’ Those sections look like this:
You warrant that any sounds, music, designs, pictures, or any other media used in your contribution are original with you except for portions for which you have obtained or will obtain permission.
You agree to indemnify and hold harmless _____________, its licensees, employees, partners, agents, consultants, board of directors, distributors, volunteers, and its successors from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, whether or not a breach of these warranties is finally sustained, but only to the extent caused by, arising out of, or relating to your contribution. These warranties and indemnities shall survive the termination of this agreement.
Registering your copyright is actually quite easy. However, the US government website is a bit tricky to navigate, which is why this tutorial exists. Our hope is that the addition of pictures will make the process a little simpler for anyone who chooses to engage it.
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1) Go to copyright.gov and click on “register a copyright” tab
2) Click on Log in to eCO (the online tool for copyright registration)
3) Log in to eCO, or if you are a new user create a new login
4) Click on “Register a new claim”
5) Answer the questions and click “Start Registration,” for our sake, let’s assume there is more than one author.
6) Pick a type of work. For our purposes, let’s assume it’s a book (it contain pictures, but no other kinda of media such as sounds or video).
7) Click on the “New” tab to give the work a title, you don’t need one right now, you can leave it “untitled.”
8) Choose a title, hit “Save,” then hit “Continue.”
9) You will be asked if the work has been published yet. For our purposes, it will not matter very much; but for argument’s sake let us assume it has been posted online in June of 2014. You will see this screen, fill it out. The date need not be exact. The International Standard Number is strictly for books and if you don’t have one it is not needed.
10) For our purposes, let’s suppose you’ve made your work under a work made for hire, which is highly recommended for an open source organization (see #12 below for why) . Click on the “New” tab.
11) Put in the “author’s” name. For a ‘work made for hire,’ it is an organization (company) that is the author. Company’s do have citizenship, it’s merely where they are formed or where they are officially registered. For a company, the screen would look like this:
or for an individual it would look this:
12) Choose what the author created:
Then do the same for each author afterwords. The advantage of doing a work made for hire is that you do not have to go through and record each individual author, so if you have 30 people working on something, you don’t have to go through and record each individual contribution. Hit “Continue.”
13) Being a claimant is generally when more than one person own the entirety of a work, such as when you see “Music and lyrics by ___________” on an album cover. If you are functioning under a work made for hire, the employer (organization, company) is the only claimant. You are also a claimant if you have received a transfer of copyright from someone else. Again, if you are working under a work made for hire doctrine instead of transferring you don’t have to record every single photo or sentence of work. Would you have to in a real word lawsuit? Maybe not since you would most likely have either a contract or email that would act as a record of a transfer. Click on the new tab and you will see the below screen. Fill it out and hit “Save,” then continue.
14) If your work is based on something else then you have to limit your claim. For instance, if you wrote a picture book based on Sherlock Holmes, you would have to limit your claim on the character Sherlock Holmes since you didn’t create him, merely this version of him. Note that you don’t have to explicitly state what its based on if anything, unless you know. If you’re adapting a version of “Iron Man,” since its not in the public domain it would be a good idea to write down the previous registration numbers.
15) You can add a name of someone to contact to ask for permission to use your work. But its not necessary.
16) Someone that the copyright office can contact is needed, however:
17) The Copyright Office eventually sends you a shiny certificate in the mail and needs an address to do that:
18) If for some reason you need everything to be processed quicker, you can pay a special handling fee to expedite the process:
19) Lastly, certify all the information is correct and not fraudulent:
20) Review all the information is correct, if it isn’t you can use the back button, or one of the buttons on the side to edit the information. Once everything is correct, click add to cart.
21) You will see this screen, where you will be asked to check out:
22) After, you will be asked to put in your payment information, either directly from your bank account or with a credit card. Then you will be asked to submit the work itself. For an incredibly in-depth tutorial from the copyright office itself on submitting your work, please read this PDF: http://copyright.gov/eco/eco-tutorial-standard.pdf
Enforcing your copyright, trademark, or patent is your responsibility. It’s important that anyone using any of the methods outlined here understand that the onus is on you to enforce your rights within the current legal system. Courts only function to adjudicate disputes that are brought before them and thus you have to put forth the effort to maintain your intellectual property’s status.
The most common methods for doing this with copyrights are:
One of One Community’s top 3 values is open source creation. It is our dedication to creating everything we do as open source that has led us down the path of understanding and endorsing copyrights and trademarks as the path to truly preserving intellectual property in the public domain. Hopefully this page helps people understand why while also providing value and understanding for those not interested in copyrights and trademarking of their specific works.
Q: I still don’t understand. Please explain in a different way why an open source organization would or should copyright, trademark, or patent something?
We’ve created an entire page about this. Please click this image to visit it:
Q: When do I own my copyright?
Automatically. Copyright ownership occurs at the time of the creation of an artistic work.
Q: Why register then?
Registration is needed for any kind of lawsuit involving your copyright. Also, it puts the public on legal notice that you have created a certain artistic work and that you own it.
Q: What if I’m not sure I want anyone to know I’ve created something?
You can always register under a pseudonym (fake name) or even anonymously.
Q: If something is on the internet, it’s in the public domain, right?
No. Just because something is posted on the internet does not mean it is in the public domain. It is like putting a painting in your front window. Everyone can see it but it would be a crime if someone went into your house and took the painting without your permission.
Q: What if I did something as a “work made for hire?”
A work made for hire is a special situation in which the organization/person employing the artist becomes the author of first creation instead of the artist. This means that the author never owns the copyright to begin with, instead the artist’s employer does automatically.
Q: Why would somebody want to make a work made for hire in an open source environment?
Because if you did not, one single contributor could have the ability to later restrict the use of the open source content. Having the understanding that a contributor is contributing to an open source project may not be enough legally to ensure that contribution’s continued use. Doing it this old-fashioned way is a way to ensure everyone is on the same page about what is happening and ensures the content will truly be open source.
Q: How much does it cost to register a copyright?
Q: So it costs $50 to register each individual song on an album?
No. You can register an entire album for $50, or a large collection of works, including multimedia (photos, paintings, songs, video, text, etc.) all at the same time for $50.
Q: If I change my work, do I have to go back and reregister?
No. Unless the work is so different it is completely unrecognizable to the previously registered version. There is no set limit (like 50% or 60% different). But if you feel it is different enough, it may be a good idea, in which case it would cost you an additional $50.
Q: What are statutory damages?
Since art is a very unpredictable business, Congress enacted a law that states someone who infringes your work can be fined a maximum of $150,000 per unauthorized use (so $150,000 per song download or $150,000 each time a movie is streamed online).
Q: Why do statutory damages exist?
They exist as a way of compensating an artist in a business that is hard to predict. There is no way of knowing how much an artist would have made if the infringement had not occurred. It also is supposed to act as a deterrent to future infringements.
Q: Why should I care about statutory damages?
If someone is unlawfully restricting the public’s ability to use your open source content, you now have the law on your side if you wish to take action.
Q: How long does copyright last?
The life of the author plus 90 years if a human being made it or 100 years after creation if an organization created it.
Q: What things are not copyrightable?
General themes and character traits are generally not copyrightable. Look at the proliferation of zombie and vampire stories. How many different alien invasion movies exist? Copyright is about protecting the individual expression of an idea, sometimes an idea is just really vague.
Q: I created something, copyright gives me a monopoly on that thing, right?
No. Copyright infringement is about two things: similarity and access to the original work. Similarity is generally easy to prove, you just have to compare the two works. Access is usually the harder thing to show. If you wrote a manuscript that is in every way identical to the first Harry Potter book years before JK Rowling did but never showed it to anyone then JK Rowling would not have infringed on your copyright since she never saw your story. Two people can come up with the same song, painting, story, photo, etc. and never meet or see each others work. That is just the fluid nature of art and the fact that after thousands of years there is only so many truly new and completely original works of art that can be created.
Q: What if I want to make a comment on a particular piece of art?
You can. it’s called parody. You can make fun of or make commentary on a piece of art (think of any Mel Brooks movie) as long as you’re genuinely making a commentary on it and using it in a way that transforms it from the original. If you’re just making a sequel or copying it and presenting it in a slightly different way it will not count. For instance, you can completely make fun of Harry Potter all you want, but it would not be a parody if you wrote a brand new sequel.
Q: What’s satire and how does it differ from parody?
Satire is when you make commentary on something other than the original work and use the work to make that commentary. But, it can be tricky since for it to be true satire you generally need to show that you absolutely need to use the original work to make that commentary. For instance, there was a book that completely mimicked the tone and style of Dr. Seuss in order to talk about the OJ Simpson trial. In court, it was determined that the author could have used any number of styles and voices to do the job of commenting on the OJ Simpson trial instead of Dr. Seuss, and so he was deemed to have infringed on Dr. Seuss’s copyright.
Q: What is good and valuable consideration?
In any legal contract there has to be what is called consideration, which is an exchange of value between two parties. Typically, it is money, even $1, but it need not be. Good and valuable consideration covers all manner of exchange. In an open source community it could be receiving credit, promoting of a contributor’s website, etc. When you have an exchange of good and valuable consideration the contract is legally binding and the two parties are agreeing they are each getting something.
Q: What if I’m writing a news article or reviewing an artistic work?
You can quote or show limited portions of an artistic work if you are writing a news article about it or reviewing it. Small portions are typical. Sometimes an extended quote or section is shown if an-depth study or news story is required. But, if the small section is a critical component to the work then you cannot use it. For instance, Gerald Ford wrote an autobiography about his presidency wherein he discussed pardoning Richard Nixon. The only reason to buy the autobiography was to read about the Nixon pardon which only took up a few pages in the 300 page book. A magazine article published the Nixon pages in their entirety under the guise of review but ultimately lost since those pages were the most valuable part of the book. They were the entire reason people were going to buy it in the first place.
Q: What about the five second rule?
There is in copyright law what’s known as the “deminimus” copying of a work, meaning a minimal copying of a small section of a work. Generally, it is not infringement unless the small section is an important part. Certain songs are easily recognizable from only a few notes. “Tequila,” for instance, is very easily recognizable from its 8 note beginning. If you copy that eight note beginning, then it is most likely infringement unless you have permission.
The so-called five second rule evolved from news stations when using others footage as a defacto rule, saying that using up to five seconds of something is generally not infringement. This is an institutional guideline and not law. Vine videos are now only 5 seconds long in their entirety.
Q: What about part of an important cultural event?
If you use a small amount of a work to discuss or show how it is an important part of a cultural event it will most likely not be infringement. A small snippet of footage from Martin Luther King’s “I Have a Dream” speech will most likely not be infringement. But, if you repost someone else’s footage of the entire speech in its entirety it will be. Going back to the 5 second rule above, a New York court recently said that using 10 seconds of footage from “The Ed Sullivan Show” in the Broadway musical “The Jersey Boys” was not infringement because it showed an important part in the main characters lives and part of American culture.
Q: What about intentional vs unintentional infringement?
There are many people who think they can get around any sort of liability if they post “No infringement is intended.” They are wrong. You can unintentionally infringe on someone else’s work and still be liable and the fact that you are saying “no infringement is intended” actually shows that you understand copyright law and are violating it, which is actually making it intentional infringement.
Q: Is is sufficient to just say “No institutions or individuals have my permission to use my photos/work without my permission”?
Q: What about Copyright notices on websites like Youtube, Facebook, etc?
There is a law called the Digital Millennium Copyright Act which governs copyright on the internet. It states that since the internet is such a complicated place it would be unjust to hold website owners liable for what their users are doing, but it is also unfair for copyright owners to be able to do nothing. The compromise, then, is that whenever a third party website user (account holder on youtube, facebook) posts something that infringes on a copyright owner’s copyright, the owner can send a notice to the website and have that material taken down. On the other hand, if the user can then show that it is not infringement the content can be put back up. As long as the website follows the law and fair and valid guidelines on how the law is applied it is ultimately not liable. The copyright owner can then go after the account holder if it so chooses, but it generally does not since it makes the owner look bad because it is usually somebody naive or someone that just does not have any money to pay for the lawsuit.
Q: I’m a graphic designer full time during the day but I often do some work for free on nights and weekends. Who owns the copyright?
Under the work made for hire doctrine whatever an employee makes within the scope of her job is automatically the property of the employer. Generally, it doesn’t matter when you made it or with what material if you create something that falls under the scope of your employment then your employer automatically owns it. “Within the scope” means it would normally fall under your duties as an employee. Examples would include: a graphic designer designing a t-shirt; a coder creating computer code; a teacher writing a manual about effective teaching methods. What would not be examples include: a graphic designer creating computer code; a coder doing graphic design work; a teacher writing an educational science fiction novel. If an employee makes something completely outside of her normal job function she owns it and not the company. But note the teacher – he wrote an instruction manual on teaching. His school would own it since although his job is not to write manuals, but to teach, it would still probably fall under the scope of his employment since he is writing something that relates to his overall job. BUT, the science fiction novel would not, since although the novel is intended to be educational, the teacher’s job is not to write science fiction novels.
Q: What about work made for hire in freelance?
You would need two things for a freelancer’s work to be a work made for hire – 1) a written agreement explicitly stating the work is a work made for hire and 2) the written agreement needs to be signed by both the employer and employee.
Q: What if I have the explicit work made for hire agreement signed with a full time employee from another company?
Say you have a graphic designer that works full time for a company do some work for you. Even with an agreement explicitly saying the free work for you is a work made for hire and both of you sign it, the designer’s employer would still own the work since he would not have the right to circumvent his contract with them.
Q: Are music copyrights different than other copyrights?
Music is its own quirk in copyright based on historical differences. Music can be covered, sampled, and played publicly without the consent of the copyright holder as long as you pay a fee and give them credit. Say you want to make your own version of “Yesterday” by the Beatles. You can as long as you give the authors of the song credit and, any time the song is purchased or played publicly, the authors of the song get a small fee. If you take only a small part of the song, called sampling, as is done very often in hip hop, the same rules apply and you must give the original authors credit and a small fee.
Q: What if I want to publicly broadcast music or use it in a website?
You generally would have to pay the authors of the song a fee every time you play the song. But in practical terms how does that work? Songwriters register with three companies, ASCAP, BMI, and SESAC. These companies determine based on a number of different things (size of a physical space, audience size of a radio station, amount of website traffic), how much to charge you for an annual license. With that license you can then play any of the songs in their catalog an unlimited amount of times and the companies through surveys and statistical samples (they have people to go to restaurants and sports arenas) then estimate how much this license is.
Q: If I have a registered copyright, do I need to put a copyright symbol on it so people know?
You do not have to put a copyright symbol on a copyrighted work. You do not have to put anything on a copyrighted work to have the copyright be valid. People used to have to until the 1980’s in the US. Now, using the symbol is a way to put the general public on notice that you generally do not want anyone using your work without permission, but again it is not needed. If you do desire to put the general public on notice, the symbol itself is not needed either. You can write, “Copyright (year of creation), (Name of author)” or, for a website which is constantly changing, “Copyright (year of first creation) – (year of last change), (Name of author).” Example: Copyright 2010 – 2015, One Community, Inc.
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