FAQ: Questions and Answers

[back to notice text] Question: Can I post a copyrighted image on my website? Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis. First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images. Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one. Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use. Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market. These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use. [back to notice text] Question: What constitutes copyright infringement? Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission: 1. reproduce (copy) the work; 2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression); 3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a); 4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here. [back to notice text] Question: What defenses are there to copyright infringement? Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. ?107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rightsof the author (17 U.S.C. ?? 106 and 106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner's consent. In deciding whether a copier's actions were fair, judges will consider 1. the purpose and character of the copying (certain types of educational copying is allowed) 2. the nature of the original (originals made for commercial reasons are less protected from copying than their purely artistic counterparts) 3. the amount and substantiality of the portion copied (one may not copy the "heart" of a work without the author's permission); and 4. the effect that such copying may have on the market for the original (copying may be permitted if it is unlikely to cause economic harm the original author). Examples of activities that may be excused as fair use include: distributing copies of a section of an article in class for educational purposes; providing a quotation in a book review; and imitating a work for the purpose of parody or social commentary. [back to notice text] Question: What are the possible penalties for copyright infringement? Answer: Under the Copyright Act, penalties for copyright infringement can include: an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works impounding or destruction of infringing copies damages -- either actual damages and the infringer's profits, or statutory damages costs and attorney's fees A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) [back to notice text] Question: Can I take photographs I?ve bought separately, frame them or mount them on tiles, and sell those individual photos? Answer: Yes.? Courts have decided that a print that is sold ?loose,? i.e., individually rather than as part of a book, can be framed or put on tiles and sold separately.? The changes you would be making are not dramatic enough to make the ?new? photograph a derivative work, and the first sale doctrine applies.? Note, though, that the court that approved this use of ?loose? images is different from the court that disapproved of cutting photos out of a book.? Until the Supreme Court rules on the issue, we won?t have a firm nationwide rule. [back to notice text] Question: Can I make and sell lithograph prints or T-Shirt with a likeness of a famous character such as Stan Laurel of Laurel and Hardy? Answer: No, but not because the prints or T-Shirts are derivative works (unless perhaps they were adapted from a scene or series of scenes from a particular movie).? A movie is a creative work, and the use of particular portions of that work may result in a derivative creation.? For example, T-Shirts printed with an abstracted but recognizable image of the final scene of Gone with the Wind might be considered derivative works.? But the human face and body are not, in themselves, copyrightable. But copyright is not the only form of intellectual property.? The human face and body are protected by the right of publicity, i.e. a person?s right to control the commercial use of his or her identity.? This right is based on state law, and it is particularly broad in California. See e.g. White v. Samsung Electronics America, Inc., 971 F.2d 1395, 23 USPQ.2d 1583 (1992).? Laurel?s heirs can invoke it, as well. [back to notice text] Question: What does a request to "cease and desist" mean? Answer: A request to cease and desist is basically asking the party to immediately stop the infriging behavior and then permanently refrain from it. [back to notice text] Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright? Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint. If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials. [back to notice text] Question: What are the possible penalties for copyright infringement? Answer: Under the Copyright Act, penalties for copyright infringement can include: an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works impounding or destruction of infringing copies damages -- either actual damages and the infringer's profits, or statutory damages costs and attorney's fees A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) [back to notice text] Question: Where can I find the text of the U.S. Copyright Act? Answer: The federal Copyright Act may be found at http://www.loc.gov/copyright/title17/.

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