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The ABCs of copyright law

How to protect your work product and avoid infringing others’

By Robyn A. Friedman

As president of AXIA, a public relations firm in Jacksonville, Jason Mudd is accustomed tocopyright seeing his name on the Internet. He is often quoted as an expert on crisis communications. But

Jason Mudd

Jason Mudd

Mudd was shocked about a year ago when a Google search disclosed an article he had written—posted on the Web site of an Arizona public relations firm, was attributed to its CEO and even branded with that company’s logo.

“I was appalled to see that they took our material,” said Mudd. “It was my work without anything changed other than my name and my company.”

Unfortunately, Mudd’s experience is not unique. The Internet has made it easy to infringe the copyrights of others—and it’s not just nefarious plagiarizers who are guilty. Many Internet users think that if articles or photographs are posted on a Web site, they’re free and available for the taking.

They’re not.

Tom Saitta

Tom Saitta

“There are a lot of copyright issues related to the Internet—things that didn’t exist 25 years ago before there were Web sites,” said Tom Saitta, who heads the Intellectual Property Practice Group at Rogers Towers, a law firm in Jacksonville. “Everybody has original content they associate with their business, whether it’s brochures or Web site pages, and it’s relatively simple to maximize the copyright protection, but a lot of small business owners don’t even think about it.”

What exactly is copyright? Federal statutes afford protection to the creators of “original works of authorship,” including literary, dramatic, musical and other types of intellectual property. Use someone’s intellectual property without permission, and you’re infringing their copyright (unless you’re within the bounds of “fair use,” as defined in the statutes). It’s important to note that ideas are not protected; copyright protection attaches when the work is “fixed” in tangible form, such as when music is recorded on a CD or a book is typed up in manuscript form.

The use of a copyright symbol is not required under federal law, but it’s recommended as a way to put others on notice that you’re asserting a claim to the material. Similarly, copyright registration is not required. In fact, any work created on or after Jan. 1, 1978 is automatically protected; however, registration, which is inexpensive and can be done online, does afford the creator additional rights.

Why should you care about copyright if you’re not a writer, musician, or photographer?

Greg Allen

Greg Allen

“If a business owner is not aware of the basics of copyright, then he puts himself at risk of being copied, facing the expense of bringing suit in state, or more often federal, court to enforce rights that have been infringed or—worst case—being sued for copying the works of others,” said Gregory B. Allen, an attorney with Allen, Dyer, Doppelt, Milbrath & Gilchrist in Jacksonville.

Allen once represented a real estate magazine owner who published a photograph in print and online that was provided to her by an advertiser. The publisher was sued for copyright infringement even though she didn’t know of the photographer’s rights when the advertiser gave her the photograph. “Defense of a federal court case is not a cheap proposition,” Allen warned.

It may seem easy to avoid misappropriating someone’s intellectual property and ending up in a similar situation: just avoid copying someone else’s work or using their photo without permission. But the copyright laws are more far-reaching. Experts offer the following advice to avoid infringing:

  • Seek written permission to reprint anything that is not your original work. Remember also that if you purchase the right to use an image or article, that doesn’t mean you can use it in perpetuity. Depending on the license agreement, using an image on your Web site may be considered one use and putting it in your brochure may be a second, and the copyright holder may expect to be paid twice.
  • Ensure that your own Web site contains only original work. The contract with your Web site developer should contain an indemnification clause to protect you in the event that someone comes forward and claims their Web site was copied.
  • Be vigilant about photos you use on your Web site or in printed materials. If you use stock photos, make sure you’ve purchased all necessary rights. If you deal directly with a photographer, confirm that it’s his original work. “Your Web site developer should guarantee that they’re using photographs they have the right to use,” said Saitta. “Try to get some sort of indemnity clause that guarantees that if a problem comes up, it’s the Web site developer on the hook and not the business owner.”
  • Consider insurance. Invest in a commercial liability policy that includes coverage for copyright infringement.

 

What can you do to protect your own intellectual property?

  • Use the copyright symbol. Although no longer required, it’s still beneficial. Include the following: the symbol © or the word “copyright”; the year of first publication; and the name of the copyright owner. Example: © 2010 John Doe
  • If you use a Web site developer—or anyone to create intellectual property—
    Joe Lemire

    Joe Lemire

    make sure the copyright is transferred to you in writing. “If it’s not specified in your contract, that can become a contentious and potentially big issue,” said Joe Lemire, owner of ELYK Innovation, a Web application development firm in Jacksonville. Lemire has had to “rescue” Web sites, recreating source code that prior developers felt was proprietary.

  • Consider using source code in your Web site that prevents viewers from right clicking to cut and paste a section. This provides limited protection, however, since a plagiarizer can still just re-type the section he likes.
  • Keep a watchful eye. Consider setting up a Google Alert in either your name or keywords related to the work you want to create. Google will then monitor the Web and notify you by e-mail when your search term is used in new articles, blogs, or Web sites.
  • Register your intellectual property. “The only truly effective means of protecting
    Howard Caplan

    Howard Caplan

    work subject to copyright is to register it,” said Howard Caplan of the Caplan Law Firm in Jacksonville. By registering, you can also recover “statutory damages” in the event of an infringement, which means that you don’t have to prove an actual monetary loss. Registration can be done electronically and costs $35 for a basic claim to an original work of authorship.

It took Jason Mudd several weeks—and the threat of legal action—to get the Arizona firm to remove his work from its Web site. He has since created strict policies to protect his own work and that of his clients. “I guess plagiarism is a nice form of flattery,” he said. “But it was my vision—for me to write an article takes time and commitment. So I felt like someone had stolen from me.”

Robyn A. Friedman is a contributing editor to Jacksonville Small Business Advantage. She can be reached at RAFWriter@att.net or through her Web site www.everythingwrite.com


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