It’s called “sampling” and “borrowing,” and “imitation is the sincerest form of flattery.” In earlier days it was called “copyright violation,” and “plagiarism.” Whether it’s songs or poetry, images or photographs, one of the fastest changing behavior in our American culture is who owns what.
I’m always amazed when I see artists on Etsy using Disney or Looney Tunes characters on their work. If Disney or Looney Tunes finds out, they will be hit with a “cease and desist” letter–at the very least. They can also slap violators with a huge fine for copyright infringement.
In America, the way we make laws is by suing each other and watching the outcome. Suing over copyright is the way the internet laws will be decided.
A cup with a fateful lyric on it. No permission was given, and now there’s a lawsuit.
Just this week Taylor Swift went after Etsy artists for using her lyrics on cups and T-shirts. She is now trying to trademark the lyrics, some of them such common phrases that she most certainly didn’t create them. Normally, lyrics fall under copyright rules, but she has powerful lawyers, and they are in scorched-earth mode.
In a weird sidebar, of all the things we can copyright, perfume is not one of them. Here’s an article about perfume protection.
For the common ruck (that’s you and me) there are two kinds of copyright protection:
1. Any written or drawn item you produce is under copyright from the moment it’s finished. You don’t have to mail it to yourself, but you may have to prove it was your idea first, though. If someone uses your words (songs, play, dance steps you choreographed), you can sue them. For violating copyright. For example, if someone uses one of your photographs in an ad without your permission, you can sue them only for the cost of the space of the ad.
2. If you register your material with the U.S. government’s copyright office, you can sue not only for violation, but for damages. The amount can be substantial, depending on the size of the audience and the commercial use of the piece.
You can also use a lawyer or Legal Zoom to help you. I’ve used Legal Zoom with good results, but it’s good to check them out yourself.
A few cautions on copyright:
1. You cannot change something “20 percent” and then think it is safe for you to use. That rumor has been around forever, and it’s as wrong now as it was then. There is no percentage that makes copyright violation a good idea.
2. “Fair use” is not easy to use to weasel your way out of a lawsuit. The tricky paragraphs are Sections 107-118 of the copyright law. Here is an excerpt:
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
So, you will have to get permission.
3. Just because it’s on Google or Flickr does not mean you can use it. Google is a popularity index, not a poacher’s paradise, although that happens. You shouldn’t be doing it.
About websites: it’s your job to be vigilant about your own material. The U.S. Government will not sue anyone for you. That is your responsibility. If someone uses a blog post, an image, a photo from your site without permission, you can send them a take down demand under the Digital Millennium Copyright Act.
You can use sample letters found on Google. An important point: you must be able to show that you are the copyright owner. This link tells how to do it at Scribd: http://support.scribd.com/entries/22980-DMCA-copyright-infringement-takedown-notification-email-template
It’s a whole new world, but be careful out there.
Note: I am not a lawyer. I cannot answer your questions about your specific work with any accuracy. I wish I could, but your best bet is to hire an intellectual property lawyer.
–-Quinn McDonald knows the complexities of copyright and thinks it needs to be simplified. But her phone did not ring, and no one is asking for her opinion.