|WHEN DOES COPYRIGHT INFRINGEMENT OCCUR?
Copyright infringement occurs when someone other than the copyright holder copies the "expression" of a work. Copyright infringement can occur even if someone does not copy a work exactly. This example of copyright infringement is most easily apparent in music and art. Copyright infringement occurs if the infringing work is "substantially similar" to the copyrighted work.
COPYRIGHT INFRINGEMENT OCCURS WHEN THE COPYRIGHT OWNER'S RIGHTS ARE VIOLATED
To fully understand copyright infringement, you must understand what rights a copyright holder owns. He or she owns more than just the rights to reproduce the work filed with the US Copyright Office.
An owner of a copyright owns a "bundle" of rights, like a bundle of sticks. Each stick or right can be sold or assigned separately. Copyright infringement occurs when one of those rights are used without the express consent of the copyright owner. The rights owned by the owner of a copyright are as follows:
The Right to Reproduce the Work. This is the right to reproduce, copy, duplicate or transcribe the work in any fixed form. Copyright infringement would occur if someone other than the copyright owner made a copy of the work and resold it.
The Right to Derivative Works. This is the right to modify the work to create a new work. A new work that is based upon an existing work is a "derivative work" (i.e. a screenplay adaptation of a novel). Copyright infringement would occur here if someone wrote a screenplay based on his favorite John Grisham book and sold or distributed the screenplay.
The Right to Distribution. This is simply the right to distribute the work to the public by sale, rental, lease or lending. The music industry lawsuits against people who illegally downloaded music from Napster and other sites is an example of copyright infringement of the right to distribution.
The Public Display Right. This is the right to show a copy of the work directly to the public by hanging up a copy of the work in a public place, displaying it on a website, putting it on film, or transmitting it to the public in any other way. Copyright infringement here occurs if the owner of a website about Alexander the Great decides to provide a streaming copy of the movie on his website.
The Public Performance Right. This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public. Copyright infringement here would occur if someone decided to give performances of the musical Oliver without obtaining permission from the owner.
EXAMPLES OF COPYRIGHT INFRINGEMENT
Joe is a huge fan of the Flintstones and creates a website featuring the Flintstones characters. Each time a person logs onto the site they hear the Flintstones theme song. He then shows the part of the show where Fred runs to the door and pounds on it furiously. He also adds the quote "Yabba Dabba Doo!" Finally, he adds a portion to his site where one can create new stories using the characters.
Joe has committed copyright infringement in several ways. Copyright infringement of the copyright owner's right of reproduction and possibly upon the individual actors' rights to publicity occurred when Joe copied the pictures of the characters. Another incidence of copyright infringement occurred when Joe created a new storyline with the same characters, violating the right to create derivative works. By showing part of the cartoon where Fred runs and pounds on the door, Joe has violated the right of public performance and again committed copyright infringement. By playing the theme song on his website, Joe has violated the rights of the holder of the copyright to that music and of the holder of the rights to that particular recording of the music. See how many incidents of copyright infringement can occur from one or more related acts?
Joe would also be liable for reuse fees which are paid to the owners every time that music is played or performed in public. The use of “Yabba, Dabba, Doo” by Joe on his website could possibly be considered a copyright infringement upon the script of the television show because it is considered a key phrase. He has also infringed upon the trademarks, but that's a whole other discussion.
If you copy a poem or a story into your portfolio without the expressed permission of the author, you not only give your readers the impression that the work is yours, you're also detracting from the rightful owner's potential to sell his poems or story under his or her own name. A Copyright dispute and/or infringement case is tried in the federal courts. You don't want to find yourself the subject of a hefty lawsuit. Hiring a lawyer and paying the fines if you're found guilty is an expensive undertaking. Best not to copy a story, poem, or essay without the author's permission/citing the name of the author.
WHAT ACTS DO NOT CONSTITUTE COPYRIGHT INFRINGEMENT - THE EXCEPTIONS
There are three exceptions to the copyright infringement rules which allow one to reproduce another's work without obtaining a license or assignment of rights:
1. Fair Use. This is a doctrine which permits the reproduction of copyrighted material for a limited purpose of teaching, reviewing, literary criticism and the like. Without the "fair use" doctrine books and movies could not be reviewed and colleges and high schools would not be able to study works by people like Arthur Miller. "Fair use", however is determined on a case by case basis.
2. Public Domain. This refers to works which are no longer covered by copyright law. For example, the song Star Spangled Banner can be performed without ever paying license fees to anyone because the copyright has expired.
3. Non-Copyrightable Works. Copyright infringement cannot occur when someone uses material that cannot be protected by copyright such as facts or ideas. However, if someone puts a bunch of facts into the form of a book (e.g. The Farmer’s Almanac) copying all or part of that work would constitute copyright infringement.
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