5 copyright facts everyone should know

Content longs to be free, according to believers in an open-access Internet. But U.S. copyright law begs to differ.

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All those digital books, articles, pictures, films and music files so easily "available" and "free" on the Internet have owners with exclusive rights over their content -so download and duplicate at your own legal peril.

If you think infringing upon copyrighted content on the Internet can't come back to haunt you, consider those music lovers who shared or downloaded songs on Napster. Use of that so-called free, file-sharing site cost them thousands of dollars per case after the Recording Industry Association of America pressed copyright infringement actions against them.

Thus, it pays to know some copyright basics before you surf the World Wide Web, and download, duplicate or disseminate content that isn't your own.

Here are five important Internet infringement insights.

1. To the copyright owner goes the spoils

Under the U.S. Copyright Act, the copyright owner can choose between actual damages and statutory damages for infringement, which can be tremendous. Generally, the statute authorizes the court to award statutory damages of between $750 and $30,000 per copyrighted work. This is how verdicts in the Napster cases climbed so high.

If John Doe is sued for downloading 10 songs, and the plaintiff opts for statutory damages, damages would be no less than $7,500 and could reach as high as $300,000.

In certain circumstances, the court is authorized to go lower or higher. If the defendant can prove he wasn't aware that his actions were infringing, the minimum award per work drops to $200.

If, however, the plaintiff can prove the infringement was "willful," the maximum award per work skyrockets to $150,000. Under this scenario, John Doe could be looking at a $1.5 million verdict for "free" music.

2. A picture is worth far more than a thousand words

All those ubiquitous pictures on the Internet doesn't mean anyone can reproduce, distribute or download them for posting on their own website. It's one thing to link and post an image to your social media account, such as Pinterest, Facebook or Twitter. Here, you aren't claiming creation or ownership of the image, and are linking to the origin.

What can run you afoul of copyright law is posting a downloaded photograph to your commercial website as if it were your own.

Large companies, with correspondingly expansive resources, control rights to vast photo libraries and archives, and they use sophisticated computer programs to constantly scan the Internet for unauthorized uses. If found, you might get a legal notice to cease and desist, along with a bill for your unauthorized use of the image.

An additional warning is in order: the mere absence of monetary gain on the part of an unauthorized user of a protected work does not, by itself, mean that the user is not infringing on the copyright owner's exclusive rights.

3. An oldie and a freebie

Not everything is subject to copyright. Specifically, material created before Jan. 1, 1923 is considered in the public domain. This collection of creative works, books, pictures, and movies are not subject to copyright because their terms of copyright protection have expired.

Unfortunately, newer works are aging out of copyright protection at a far slower rate these days, as corporate copyright owners such as Walt Disney use their monetary and lobbying muscle to maintain protections for older works and the profitable characters embodied therein, including Steamboat Willie, which contains the first appearance of Mickey Mouse.

By contrast, all U.S. government works are in the public domain from the moment of creation, including all agency reports, budgets and other publications.

4. We're all copyright holders

The Internet and digital technology also have opened the door for the masses to produce vast quantities of copyrighted material of their own. More pictures and video are being created in a single day now than in full decades before the advent of the smartphone. Many music and movie producers work out of basements, and authors can self-publish bestsellers that are made into movies, such as "The Martian."

It is a brave new world, where the masses are now creators of copyright-protected content. Luckily, amateur writers and photographers don't need to rush out and file with the copyright office to enjoy those rights and protections.

Under U.S. law, copyright attaches to a creative work at its inception. That original novel you are trying to write is fully copyright protected, even if you haven't had the nerve to show it to anyone yet. The Copyright Act does, however, incentivize registration through the provision of certain benefits which are only available to registered works.

5. What copyright can never protect

There is one big thing that cannot be copyrighted: ideas.

Copyright applies only to the unique expression of an idea as embodied in work which falls within the subject matter of copyright protection. That means the words, sentences and unique voice an author brings to a story, such as Harry Potter.

But the larger idea of a school for young wizards? That's fair game. Be careful about importing too many ideas from a single work, however.

Copyright cannot protect general theories, basic strategies or the informational content of articles, books or movies, either. Certain "fair uses" of copyrighted work, such as a song snippet, scene from a movie, or a quote from a book (when used for review purposes), or a satirical adaptation may be permitted as well.

While some types of uses are well-established as "fair use," other uses may present a closer question. The fair use analysis is complicated and legalistic; the layperson would be ill-advised to attempt it on her own.

Copyright is reserved for the creative element and the creative work as a whole. Only the unique expression of ideas, stories and information can be protected as intellectual property, with all your rights for reproduction, sale and profit reserved for you.

Should you find yourself facing a copyright conundrum, a skilled intellectual property attorney can be your best Internet find.


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