Copyrights and Copy Wrongs: What is Copyright and Copyright Infringement?

This is the first of multiple posts on copyright, and what you can do when someone takes the content from the pages of your web site or blog and republishes that content on their site without permission and without attribution.

Hopefully this series will give you an idea of some of the steps that you might be able to take when someone has copied content that you have created, and used it without asking first.

It is inspired by an actual event which will be described in more detail as the series continues, and I am hoping that the series will help others who find their work on other websites without their knowledge.

Have you ever had something like the following happen to you?

You write a blog post, and it contains a number of unique elements, including a series of definitions from other web sites, quotes personal definitions from other bloggers, your own definition, and introduction to a video, and the video itself.

A few weeks later, you come across a blog post on another site which looks very familiar, though it’s postdated a couple of weeks later than your post.

It shares most of a title with your post, the same definitions from different web sites in the same order, your own definition, modified very slightly, an introduction to a video, and then the same video. It doesn’t include the quotes from the other bloggers, but otherwise the post is very similar.

The language of the post isn’t the same, but as I noted, it’s very similar, and the elements contained in both posts are in the same order.

When the writer of the newer post is contacted, he states that he never heard of you until you blogged about his post and he followed a reference from a link back to your site.

He also claims to have never heard of the site that your post is from, and that he came up with the post himself, even though there’s proof that he has interacted with you in the past a number of times.

What is copyright?

Copyright is simply a protection authorized by law to the creators of artistic works to exclude others from earning money or recognition or other benefits from those authors’ works for a certain period of time.

Under the United States Constitution, Congress has the power:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Congress has acted to protect the rights of creators with copyright laws that have changed somewhat over time, but which offer those creators rights to exclude others from copying their works.

The US Copyright Office provides a number of resources that define copyright in the United States, and what it covers, and a good starting point on their site is Circular 1 – Copyright Basics (pdf).

Copyright does apply to content found on web sites, and the US Copyright Office has another circular that describes Copyright Registration for Online Works (pdf).

What is Copyright Infringement?

Copyright doesn’t protect ideas or information, but rather the expression of those ideas or information – however, it would be a mistake to assume that something has to be copied exactly to be an infringement of copyright.

The IP Law Blog, in The Complexity of Proving Copyright Infringement , provides us with an example of a copyright infringement claim based upon an HBO miniseries, and a film that had a similar storyline. They tell us that:

Absent evidence of direct copying, “proof of infringement” involves fact-based showings that the defendant had “access” to the plaintiff’s work and that the two works are “substantially similar.”

So, to pursue a claim of copyright infringement doesn’t necessarily mean that an infringing work has to be identical to the original, but rather that the person responsible for infringing the work had access to the original work, and that the newer work is substantially similar to the original.

The website of Ladas & Parry LLP provides more about the similarity of works in a page of theirs on Copyright Infringement. They tell us that:

The similarity between the two works need not be literal (i.e., phrases, sentences or paragraphs need not be copied verbatim); substantial similarity may be found even if none of the words or brush strokes or musical notes are identical.

Various tests have been developed to determine whether there has been sufficient non-literal copying to constitute substantial similarity between a copyrighted work and an allegedly infringing work.

Other Copyright Laws and Resources

I’ve written about copyright protection in terms of US law, but copyright laws cover artistic works across the globe.

Nonprofit and not for profit resources

Other Resources

Conclusion

If you find that someone has copied the content of your page or pages, you may have the right to exclude their use of your content. It’s not a bad idea to contact an attorney who has some experience with pursuing a claim of copyright infringement to help you with your claim.

The use of infringing content doesn’t necessarily have to use exactly the same words as yours, and an attorney can help you get a sense of how a court might rule on a claim of infringement.

Future parts of this series will detail some of the defenses to copyright infringement, such as fair use and parody, information on how to collect evidence in the case of infringement, and how sites such as search engines and social bookmarking and voting sites can be informed of links on their sites that point to pages that infringe copyright.

Added: I’m adding a disclaimer to this post – While I have a law degree, I am not a practicing attorney, and these posts on copyright (more to come) are written to inform rather than as a definitive set of steps to take if confronted by copyright infringement. If you have a copyright dispute, and need legal guidance, you should contact an attorney who can take the specific facts of your case into account and advise you on the best course of action.

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15 thoughts on “Copyrights and Copy Wrongs: What is Copyright and Copyright Infringement?”

  1. Copyright © 2005-2009, SEO by the SEA. All rights reserved.
    Does this protect you ?

  2. Hi Marshal,

    Good to see you. That’s a really good question. You can now have a copyright in a work even if you don’t include a notice, but there are some good reasons to include one.

    The Copyrights Basics (pdf) document I linked to explains that, for works published in the US on or after March 1, 1989, you no longer need to include a notice to have copyright protection. Copyright laws that were adopted pursuant to the Bern Convention became effective on that date in the United States, and they didn’t require a copyright notice like the previous US copyright law had.

    The Basics document also explains why a copyright notice can still be useful:

    1) It informs the public that the work is protected by copyright,

    2) It identifies the copyright owner

    3) It shows the year of first publication.

    Also, if a work is infringed, and a there is a proper notice of copyright on the the published copy (or on a copy that the defendant in a copyright infringement suit had access to), then the defendant can’t try to use a defense that their infringement was an innocent one, and that they didn’t know that the work was protected by copyright. That defense, in some instances might be used to significantly lessen the amount of monetary damages in an infringement law suit.

    If you want to protect your copyright in a work, it’s not a bad idea to include a notice of copyright.

  3. Bill:

    Is there a reason you DON’T want to disclose your educational background?

    I don’t think it would change your disclaimer a bit, but I think it might be relevant to the readers.

  4. Hi Alan,

    I included the disclaimer because, if someone is considering taking legal action against someone else, I would definitely urge them to seek the advice of an attorney who could take the specifics of their particular case into consideration in telling them the best steps to take.

    While I do have a Juris Doctor Degree, I’m not a practicing attorney. I may amend that disclaimer slightly.

    Thanks.

  5. What I’d like to know is what happens in the grey area of copyright infringement. If I create an image using a pencil tool and I colour in each pixel one at a time until I get an image which resembles an image on another site, this image is technically mine – how can someone attempt legal action?

    Also, if I copyright data on a website to the company I’m designing for, does this mean that all images and text on this site are copyrighted with the company, not where they were originally sourced from? Are you free to use images and text on a site without any copyright notification?

  6. Hi Adam,

    There are some areas of copyright that aren’t so clear. Your first question involves a concept, or defense of copyright infringement, that is referred to as “independent creation,” where someone has created something similar to what someone else has created without there having been any copying at all. This post and the comments that follow it provide some information on that topic, and how the courts have interpreted it:

    Independent Creation: A Bulwark of Copyright

    If you are working on a web site as an employee of the company, then they may be the owners of the copyright. If you are contracting out to a company, then ideally your contract should define who the holder of the copyright is for the look and feel of the site, or its design, to avoid any confusion at all. It might not be a bad idea to also include a statement in that contract as to which law applies if your clients are located in a different legal jurisdiction than yours as well.

    You might want to look at the Intellectual Property Office for issues involving the copyright law in the UK, or talk to an attorney or organization in the UK that specifically helps with copyright issues. They might be able to help you come up with something to include in your contracts that help define your rights in copyright on sites that you work upon.

    In the US, a creator of a web page isn’t required to include copyright notices on their pages to gain copyright protection, and that’s true in the UK as well, according to the Copyright Basic Facts (pdf) publised by the Intellectual Property Office, but it’s not always true in other countries. Including a copyright notice isn’t a bad idea, because it makes it more clear to others who visit a page that the work on that page is copyrighted.

  7. How is one to know if the copyright is legitimate. I see many amateur webmasters placing these notices on their sites and the haven’t got a clue what it really means, just ask my friend. If two sites are similar, whats stopping the person who copies from putting their copyright date before the other persons?

  8. Hi Jake,

    The intent behind a copyright notice is to give other people notice that the content on a page has been copyrighted, rather than to act as proof of the date of publication. The copyright notice itself doesn’t give “legitimacy,” to one person or another, and an author can have a copyright in something regardless of whether or not they even have a copyright notice these days. If someone infringes another’s copyright, the act of predating notice on the copyright will not stop the copyright holder from taking legal action if they are so inclined.

  9. While I am a little late coming in on this one I think that this might be useful for anyone who might come across this post in the future and be wondering about adding the “copyright” tag to a webpage or any other work they have done.

    For people who are not in the know within this area they may not realise something they are looking at is actually protected and might feel that they are allowed to copy the work but having this kind of notice will put them off. Legally adding it or not may or may not give an additional layer of protection but I think that having it there is better than not if you are wanting to protect your work.

    Putting myself on the other side of the fence in the shoes of someone who is looking to steal someones work, I would be more more inclined to steal the work of someone who has not included a notice on their work than someone who has. This is just because really it makes me think that the person who has the notice would be more serious about pursuing me should the infringement come to light.

  10. Hi Jimmy,

    It used to be that you had to include a copyright notice under copyright law, but that changed a number of years ago. The notice isn’t required for copyright to still take effect, but I’ll agree that it’s helpful to include it for people who might not know any better.

  11. Bill,

    Sorry but I am more than mildly amused that I’m reading this blog post while viewing a pirated version of The Blind Side that threatened me with federal imprisonment – the line between legality and best practices often seems a rather arbitrary one at times!:) Thank’s for the analysis though – certainly better to be clued up on these issues before the fact.

    Matt

  12. The article states that fair use will be covered in a later article but this concept is integral to getting a handle on the concept of copyright infringement in the USA so I thought a link to some info appropriate. The American Library Association has a nice summary of the topic.
    http://www.ala.org/ala/issuesadvocacy/copyright/copyrightarticle/whatfairuse.cfm

    There is no bright line for fair use. It’s a quagmire so be careful when relying upon this as a defense.

  13. Hi jjray,

    Thank you for following up here, and providing a link to a useful summary of Fair Use. I think the articles on that page get it right where the second one states:

    Section 107 of the Copyright Act of 1976 defines fair use. It is a vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty

  14. Pardon for jumping in a bit late in the conversation. It’s true that it has become super easy to copy and reprint original works in the digital age. As an artist, I’m split on sites such as Pinterest that haphazardly pin “borrowed” art/etc., without necessarily crediting the authors. Yes, there’s exposure, but who’s benefiting?
    Litigation for most people is not an option, unless you’re like Shepard Fairey and who’s “derived” art has become a national fair use debate of who owns what.
    Even though he won the first round, he finally admitted to destroying evidence of his Barrack Obama “HOPE” poster. Oh well…

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