ARE YOU A COPYRIGHT CRIMINAL?

Ellen M. Kozak

The dos and don’ts of using content in the Internet age.

Nothing ever dies on the Internet. As a result, speakers have to be ever more careful about what they borrow from other sources, because what once might have been a casual reference made to a small group may now live forever on YouTube.

As many political candidates have discovered, misspeaking –– or misstating a fact –– can have far-reaching implications. But so can borrowing someone else’s words. While certain phrases –– like those from the Bible or Shakespeare –– have entered our culture so broadly that an allusion to them often doesn’t require attribution, failing to acknowledge a source –– what is sometimes termed “plagiarism” –– can damage your reputation. And borrowing too much from someone else’s spoken or written words can have even more dire consequences: It can lead to a lawsuit for copyright infringement.

Who Is Affected by Copyright Law?
U.S. copyright law is based on a constitutional mandate to protect –– for limited times –– the rights of authors in their work. Copyright protections in other countries, while based in the laws of those countries, tend to be somewhat similar, since most countries today have signed the Berne Convention for the Protection of Literary and Artistic Works, which protects the works not only of native authors but also of those from other signatory countries. This article will, however, generally cover only the terms of U.S. law.

In the U.S. and in most other countries, the term “author” is a broad one, including not only writers but also those who create paintings, musical compositions, films, videos, photographs, pantomimes, choreography and even architectural works. So when you use photographs or cartoons in a PowerPoint presentation without obtaining permission, you may be violating someone’s copyright.

In times past, you might have been able to get away with this, but not in an age when everything can find its way onto someone’s cell phone and then onto the Internet. (Of course, someone else recording your speech and posting it may be a violation of your copyright, but if you’ve borrowed part of your presentation from another source, your use is there for all to see.)

The Hazards of e-Publishing
It is even more important to pay attention to copyrights if you are thinking of publishing an e-book to sell or distribute to those who attend your speeches. Self-publication is easy these days, but in doing it alone, you are forgoing the expertise of editors, publishers and their legal counsel as to whether you really should be distributing what you’ve written. Public utterance –– whether verbal or written –– can be fraught with all kinds of dangers for the unwary, such as defamation, violation of someone’s rights of privacy or of publicity, plagiarism, and of course, infringement of copyright.

Copyright Defined
Exactly what is a copyright? The traditional definition is the “bundle” of all of the rights in a work. The copyright law notes five main rights that are reserved exclusively for copyright owners: the right to reproduce the work in copies and the right to distribute those copies, the right to display the work, the right to perform it in public (including, in the case of sound recordings, by digital audio transmission), and the right to prepare derivative works based on the original work. Infringing these rights –– or any subdivision of them –– can carry both civil and criminal penalties.

Copyright protection begins when an “original work of authorship” is first “fixed in any tangible medium of expression.” This means that a speech is protected by copyright if it is typed or taped, but not if it is extemporaneous and goes unrecorded –– although not much goes unrecorded nowadays. And protection for unrecorded “ephemeral” works may lie in other areas of law, such as plagiarism or unfair competition. But the only requirements for establishing a copyright are originality and fixation in some format from which it can be read back.

Once created, the author’s copyright lasts a long time. Copyrights held by people (as opposed to those created in the course of employment, which have a different duration) generally endure for the life of the author (or the last surviving joint author) plus 70 years, so long as the work was not originally published before January 1, 1978. For works first published before that date, various durations apply, although you can assume that, generally, works first published in the U.S. before that date are protected for 95 years. Most foreign works are subject to the life-plus-70 rule.

Rules to Recognise
A copyright (©) notice is not required to establish or preserve copyright (although that was necessary in the U.S. before 1978). As a result of this change, it can be difficult to determine who owns a copyright, or whether it is still in force. The safest bet is to assume that a work is protected unless you can prove it is in the public domain. (U.S. government publications are not protected by copyright, but they may incorporate protected works; works of state and local governments are protectable.)

Just where does that leave you if you want to quote others in your presentation?

Advice to Speakers
Generally, a speaker will be able to quote a short phrase, usually with attribution. The point when that short phrase becomes too long depends, among other things, on how large the audience is, whether the speech is being “fixed” in print or on video for further distribution, and whether it comes from a book of anecdotes or jokes for speakers (the speaker’s version of clip art), or if it constitutes stealing someone else’s act.

And the theft doesn’t have to be verbatim, just substantially similar. Then-Senator Joe Biden learned this during his presidential campaign in 2008 when he borrowed too heavily from a speech by British politician Neil Kinnock, and the parallels found their way onto the Internet and the nightly news. (Kinnock didn’t mind; if he had, he might have been able to sue for copyright infringement.)

The U.S. law says that there is no copyright protection for facts, ideas or even short phrases, but it doesn’t define a “short phrase.” And just because a phrase isn’t protected by copyright doesn’t mean it might not be protected by other areas of law, like trademark (words or phrases associated with or identifying products or services).

Sometimes use of someone else’s work falls under “fair use,” a complex legal doctrine. Whether a use is a fair use under copyright is determined only after considering, among other things, the purpose and character of the use, the nature of the work, the amount and substantiality of the portions used, and the effect of the use on the potential market for the quoted work.

It is very difficult, even for experts, to determine whether a proposed use is a fair use. There is no magic number of words (or notes of music) that may be used. Also, copyright infringement can include paraphrasing as well as direct quotation, so infringing the “substantiality” can also occur when a work is not quoted precisely. There are exemptions for some educational uses, but not all educational uses are exempt, nor are all nonprofit uses.

In addition, it is permissible to quote from a work for the purposes of criticism or comment, although how much of the work can be quoted (or displayed, if it is a film or photo), or whether your use is legitimate criticism or commentary, can be subject to dispute.

Simple Steps You Can Take
So what should the average speaker (or writer) do? If you think you may be borrowing too heavily from a protected source, consider asking for permission, which is often granted gratuitously, although sometimes a fee may be required. Permission must be obtained from the copyright holder, who is generally the author of the work (though it may be the author’s employer under certain conditions). The copyright owner may also be the deceased author’s heirs, or anyone to whom the author has assigned the copyright (or those rights contained in it that you may want to use).

Fortunately, many published works continue to bear copyright notice, indicating a starting point in determining who should be contacted for permission to copy, distribute, perform, display or adapt a work. You may also be able to search the Copyright Office records (at copyright.gov) for the name of the copyright holder, although such a search may be inconclusive since copyright registration is voluntary and pre-1978 records are only now being digitized. (There is a card catalog in the Copyright Office in Washington D.C., that can be accessed for information on older works.)

The important thing to remember is that a copyright is property, and infringing a copyright is similar to trespassing on someone else’s land. Do both at your own risk.