communication department

Many chapters have inquired about intellectual property rights relating to chapter newsletters, Web sites, and mailing lists. Here is a brief interview with Jackie Henson, Esq, STC’s attorney:

Q: Some chapters wish to post copyrighted material on their Web sites. Is that permitted under the law?

A: It depends on who owns the copyrighted material. If someone other than the chapter owns the copyright to the material, the chapter can only post it if the chapter received prior permission from the owner of the copyright before posting materials on its Web site or using such materials in chapter newsletters. Copyright is a form of legal protection provided to authors with respect to their creations, including their literary, dramatic, musical, artistic, and other types of intellectual works. Essentially, the owner of a copyright enjoys the exclusive right (1) to reproduce and make copies of the work; (2) modify or create derivative works based upon the work; (3) distribute copies of the work to the public by sale or otherwise; (4) perform the work publicly, in the case, for example of a musical work; and (5) display the work publicly, in the case, for example, of a pictorial or graphic work. Because the owner of the copyrighted material holds these exclusive rights, in order to use or post the copyrighted work of another, the chapter must receive permission from the copyright owner.

Q: Who is the owner of the copyright?

A: The owner of the copyright is usually the author or creator. In other cases, it may be (1) the person or company for whom the work was commissioned pursuant to a written agreement, or (2) the person or company to whom the author or creator has sold or transferred the copyright (oftentimes, a publisher).

Q: How would a chapter find the copyright owner?

A: There are a number of ways to find the copyright owner. For published works, look for the copyright legend, which normally appears at the beginning of the work. It is usually in the following format: "Copyright 2008. Name of copyright holder. All rights reserved." This legend identifies the owner of the copyright.

If the work has been registered with the U.S. Copyright Office, you can use the Copyright Office Web site to determine the owner.

If the work is unpublished or unregistered, you should contact the author or the creator of the work.

Q: What does a chapter need to do after it has permission to use the material?

A: The copyright owner typically informs the party that has requested the copyright what it needs to do. In many cases, the owner requires the party to add wording such as: “This material is being reprinted/used with permission of the Owner.” In other cases, the copyright owner may require a fee for the use of the copyright owner's work.

Q: What about unpublished works?

A: A copyright arises when the work is created or "fixed in tangible form." So, even if a work is unpublished, it still is protected by the copyright laws.

Q: Once a work appears on a Web site or a mailing list, it becomes part of the public domain, doesn’t it?

A: No, if a work appears on a Web site or a mailing list, all that means is that the work has been "published." The owner still enjoys all rights with respect to that work, and thus, the chapter would still need to get permission. The public domain typically includes works published before 1923 and government works.

Q: What about the concept of “fair use?”

A: Fair use is a difficult and tricky concept. Generally, fair use is any copying of copyrighted material done for a limited purpose such as to comment upon, criticize, or parody a copyrighted work. Fair use is an exception to the requirement that the user must receive the copyright owner's permission before the user uses the copyright holder's material. If a use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a fair use? There are no hard-and-fast rules, only general rules and a complex array of oftentimes conflicting court decisions. Unfortunately, the only definitive way to determine whether a particular use is a fair use is to resolve it in federal court. The following four factors are used to resolve fair use disputes:

1. the purpose and character of your use (Has the material from the original work been "transformed" by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?)
2. the nature of the copyrighted work (Typically, there is more leeway if one uses material from a factual work, rather than a fictional work and more leeway if one uses material from a published work, rather than an unpublished work.)
3. the amount and substantiality of the portion taken (The less taken, the better. Also, taking the most important part of a work is more problematic than taking a lesser part.)
4. the effect of the use upon the potential market (Are you depriving the copyright owner of income or a new or potential market for the copyrighted work?)

Sound confusing? It is. People have spent millions of dollars litigating these types of cases. There is no bright line test. To protect yourself and your chapter, never assume that the fair use doctrine applies; instead get the permission upfront. It will save you hundreds of hours of stress and worry, let alone legal fees.

Q: I am a professor in a university and I often make copies of copyrighted material for my students. As far as I know, there is no restriction on this use.

A: While you may have been making copies for students under the impression that this was “fair use” or otherwise permissible, I suggest that you check with your department head and the school’s legal counsel to find out the institution’s official position on this. Many universities have clear rules describing what their employees may and may not do in these situations.