This paper is intended for publishers of electronic or digital magazines, whether the magazine is distributed on floppy disk, CD-ROM or via a network such as the Internet. I have found that while the technology allows almost anyone to publish a multimedia publication, few know about copyright issues. This paper is intended as a survey of some issues that the new breed of electronic publishers should know.
We've come a long way from the time when, if you wanted to be a publisher, you had to own a printing press. Today almost anyone with a computer can publish not only a print publication, but a digital work that combines text, images, animation, video, and sound. What's more, it is now relatively simple to quickly distribute your work to millions of people, thanks to vast computer networks such as the Internet.
But the law is lagging far behind the progress of new technologies. And few new media publishers are aware of existing laws that affect their work, much less the latest legal changes. This paper covers some basic issues in one legal area -- copyright -- that every digital publisher should know. Since there are two sides to copyright law, this paper is divided into two sections: expressing yourself as a publisher without infringing on the rights of others; and protecting your own work from infringement. It helps to view every issue from two sides -- from the view of a copyright holder, and from the view of a publisher wishing to use someone else's work in some way.
The Constitution is clear on protecting the rights of creators. In Article I, it is stated, "To promote progress of science and the useful arts Congress may for limited times confer upon authors and inventors exclusive rights in their respective writings and discoveries." The main idea behind copyright law is that the public welfare is best served by creating limited monopolies -- essentially property rights -- which create economic incentive to make new works and discoveries. In other words, copyright law exists to promote creativity. The immediate beneficiaries of the law are authors, and the ultimate beneficiary is the public.
As a creator of original work, you have certain exclusive rights with regard to your work. You have the right to reproduce, adapt or recast, distribute, and display the work. You may transfer any or all of these rights to anyone, anytime.
The digitization of everything poses some challenges to this wisdom. In an interactive environment, who is an "author?" What is the medium of "fixation," if all of your information is, at root, only ones and zeros on a computer disk or network?
The recently released "Green Paper" by the Clinton administration attempts to address some of these issues, as they relate to the "National Information Infrastructure." For instance, the authors of this paper take issue with the term "multimedia." In a work that combines text, video, sound, images, and so on, what is multiple, they say, are not the media used, but merely the representations of information, the categories. All the text, video, etc. are (most of the time) combined in a single medium, such as a CD-ROM. A true "multimedia" work, they say, might use, for example, a video deck, a sound system, a slide projector, and paper. The media are physically separated. What this means to you as a publisher is that the data on your CD-ROM or Internet site generally will be regarded as a single medium by copyright lawyers.
But you may want to use one person's music, another's text, and another's images, as many electronic magazines do. How can you best express yourself using other people's work, without being sued for copyright infringement? And how do you then copyright that work as your own?
Expressing Yourself
Every day here at NYU's Interactive Telecommunications Program, I see people taking photographs, paintings, songs, and clips from television, digitizing them, and including them in their multimedia works. In fact, in the field in general, few people or companies have the resources to create all their own original music and art. Often it is clear that this material has been sampled from elsewhere; much of it is instantly recognizable.
What's more, with image, video and sound manipulation software today, it is simple to take another person's work, and alter so that it bears little or no resemblence to the original. This makes it fairly easy to get away with copying.
Is this illegal? When should you get permission to use and/or alter someone else's work? Here are some guidelines to avoid being sued:
First, it is important to know that, generally, all work created after 1978 is the property of its author as soon as that work is fixed in some physical medium. This includes your work -- and digital data on a hard disk has been legally defined as being a fixation. Works created before 1978 generally must be registered with the copyright office for their copyrights to be valid.
When you want to use someone else's work, when in doubt, seek written permission. Most published works bear a copyright notice -- most often the (c) symbol followed by the copyright holder's name and the year of publication. The copyright holder may not be the author -- for instance, publishing houses often hold the copyrights of the authors they publish. This is where to go to for permission to use the work. Contact the copyright holder, specify the portion of the work you would like to use, and the nature of use. Get everything in writing -- a paper trail is important in any legal proceeding.
There are times when you may use work without getting permission; even times when you can use work even if the copyright holder has denied you pernission. For instance, works whose copyright has expired are deemed to be in the public domain, and are free to use without permission from anyone. A copyright expires, generally, 50 years after the death of the author. This means that a lot of early movies, and some music from early in this century, are now in the public domain, and becoming fair game for anyone to use in any way.
Another important exception is called Fair Use. The idea is that copyrighted material must be protected, but that others should be allowed to build upon it; again, the ultimate goal is the enrichment of the public.
The Copyright Act defines several examples of Fair Use, including commentary, criticism, parody, educational settings, and news reporting. Your digital publication probably qualifies from one of these. For example, you may want to review a record by your favorite band; you may want to comment on a previously published news article. A digital zine called "Thunk!" (released in 1993) did hilarious parodies of CNN, Amy Fisher and Ross Perot.
But not all material, and all contexts, can be regarded as Fair Use. If you use someone else's work and consider it Fair Use, and they bring an infringement suit against you, the Copyright Act stipulates that the court use the following factors in evaluating the case: the purpose and character of the use (it will make a big difference if your work is a commercial product or part of a classroom presentation); the nature of the copied work; the amount you use, and how substantial that amount is to the whole of the copied work; and the potential or real effect your work will have on the market for the copied work (your work may be a competitor in the marketplace for the original, or it may hurt sales of it).
The court will also consider whether your work is "productive" or "transformative." In other words, the more you transform the copied work into something else, the less likely they will compete in the same market, since you have gone more towards creating something new. If your work is sold for money, this will weigh against such an argument; but the more transformative your work is, commercialism becomes less of a factor. In addition, there may be a strong public interest in your new work.
A related area is a "derivative work," a work which takes some original, and recasts, adapts or transforms it in some way. The classic example is a book being made into a movie. Your work may be a derivation of a play, for example, or an adaptation of a novel. This does not automatically guarantee your freedom to use the work without reprisal; each case is different.
Most digital magazines are compilations of a number of original works. You may copyright a compilation; only a modicum of creativity is required for your work to be considered "original" and thus copyrightable. However, note that a copyright on a compilation protects only the original elements of the compilation -- by using a series of articles written by other people, for example, does not mean you control the copyrights on those works, only your arrangement of them into a new work. Also, keep in mind that since a compilation is copyrightable, beware of copying others' arrangements or expressions of material.
Protecting Your Work
As mentioned above, your work is copyrighted as soon as it is fixed in some medium -- as soon as words are set down on paper, or data fixed onto a hard drive. Courts have decided that fixation may be in an object not visible to the human eye. Keep in mind the distinction between your work and the material object -- the data is distinct from copies of the data. And these days, also keep in mind that with digital technology, your work could be rapidly and inexpensively copied -- from a network, or a disk. Here's how to protect your work:
First, it bears repeating -- keep a paper trail of all information related to the creation of your work. This means noting people you have worked with (or for), places you got information or content, people who have seen your work. You need not be paranoid; it is merely helpful in any legal situation to have as much information in writing as possible.
Use the copyright notice on your work. You do not need permission to use it. The format is as follows: there are three elements -- (1) the word "copyright," or the abbreviation "copr.," or the (c) symbol; (2) the full name of the copyright holder (most often you, if you are the sole creator); and (3) the year of publication. From the day the work is fixed, whether you have this notice or not, your work is your property until 50 years after your death.
Exactly what is protectable? There are some hazy areas, but one thing is clear -- ideas and facts are NOT copyrightable; the expression of those ideas and facts are. There are instances where the two are merged, and are judged on a case-by-case basis in infringement suits.
At present, the copyrightable work must reside in a physical object. Transmissions are not copyrightable, unless they are simultaneously being fixed at the same time. This notion came from the television networks, which were concerned that their live broadcasts could be used by anyone freely. By videotaping those broadcasts as they occur, the networks retain the rights. The Clinton administration would like to make transmissions copyrightable -- for instance, live transmissions of data on national or global computer networks. But the proposed changes are still pending.
Defining the exact form of your digital publication may be tricky. Until recently, copyright law has only addressed software -- programs that do something useful. The focus has been on business applications, and very little attention has been paid to purely artistic or informational digital works. Programs were regarded as literary works, for purposes of copyright -- only the code was copyrightable, even though the main source of value of most programs is their usefulness. Finally, courts decided that the interface -- the screen display -- could be copyrighted along with the program itself. Videogame cases proved that even changing screen displays -- when the user interacts with the program in a dynamic interface -- are copyrightable, since the program itself is fixed. If you create a disk-based magazine in Macromedia Director, for example, or a site on the World Wide Web, the code underlying your creation is copyrightable.
Your magazine may not be considered "software," however, since it may not provide a useful function, beyond imparting information. More likely, if you make a multimedia publication, it will be considered an "audiovisual work," under strict copyright definition.
This affects how you should register your work. And you should register it with the Copyright Office, (which is a branch of the Library of Congress). Registration creates a public record of your work, and provides some protection against copying. It does not mean that no one will copy your work, but it does mean that if someone does, you will have a much stronger case against them.
To register your work, you send an archival copy of the "best edition" of your work to the Copyright Office. For a digital work, it must be sent on a disk that either is not copy-protected, or has a backup copy included (it seems ironic, but this is so that the Office is sure not to lose the work. Include any documentation that may come with the work. Also, you must fill out a copyright application. For audiovisual works, use form PA. For purely textual works, or works more considered software than audiovisual, use form TX. Send all of this, along with a $20 application fee, to the Copyright Office, Library of Congress, Washington, D.C. 20559.
Your work is considered registered as soon as the Office receives all the materials -- you do not have to wait until they process the application. They may, however, contact you to request further information.
All of the copyrightable materials in your work may be registered with the same application, as long as they are unpublished, or published together; and are all created by you.
Keep in mind that there are other means of protecting your work -- trademarks and patents. While copyright only covers expressive material, trademarks cover symbolic information, and patents cover technological information. Trademarks are generally symbols, or single words or short phrases. Patents are novel, original inventions.
What should you do if someone copies your work, and you decide to file an infringement suit? Judges look for the following in such cases: First, the copied work must have a valid copyright. Registration is generally required before you file suit. Your work will need to be registered for you to ask for any statutory damages or attourney's fees (although there is a bill pending that will drop this requirement).
Next, you must prove that there was copying of protected elements of your work. Direct evidence is seldom available. Therefore, you will have to collect indirect evidence. Generally, you will have to show that the copier had access to your original work. Then, you will have to show that there is substantial similarity between your work and the second work. The copier may have copied your work verbatim, or merely the "look and feel" of your work.
If necessary, the court will issue an injunction against the copier to stop them from distributing their work, until the case is decided. If copying is found, you may ask for damages, which are divided into two categories. Actual damages relate to your lost profits. Statutory damages are a fine, generally from $500 to $20,000. If the copying was willful, the statutory damages may be as high as $100,000; if the copying was "innocent" (if the copier was not aware the work was copyrighted), the damages could be as low as $200.
This is merely an overview of some issues that electronic publishers should know. What follows is a bibliography of useful publications on this topic.
Copyright Law. Government Printing Office.
Fishman, Stephen. The Copyright Handbook. Nolo Press, 1992 [includes chapter on multimedia]
Foster & Hook. Patents, Copyright and Trademarks. Wiley.
Goldstein, Paul. Copyright, 1994 Supplement. Little, Brown.
Multimedia Law Handbook. Ladera Press, 1994 [includes contract forms]
Patent, Trademark and Copyright Journal (periodical). Bureau of National Affairs.
Second Annual Seminar on Multimedia and Interactive Technology Licensing. Law Journal Seminars Press, 1994.