Over the last few years,
bloggers, business owners, web designers, content marketers and
social media users have been forced to educate themselves about
copyright, infringement, and fair use. As the internet becomes more
and more a part of life many people are not mindful of the laws
surrounding copyrights and the potential penalties for infringement.
What are Copyright
laws?
The fundamental rule of
copyright is simple. Anybody who creates a piece of original creative
work has ownership rights. Intellectual property protected by
copyright laws include writing, photographs, video, paintings,
graphic art, choreography, sculptures, infographs and anything else
that has been created as an original.
The copyright owner has
exclusive rights to their intellectual property, but if they choose
can also give permissions that allow third parties to use their
work.
Formal copyright
registration is not necessarily required. Copyright protection exists
from the moment a work is created in a fixed, tangible form of
expression. The copyright immediately becomes the property of
the author who created the work. Only the author, or those deriving
their rights through the author, can rightfully claim copyright.
The way in which
copyright protection is secured is frequently misunderstood.
Copyright is secured automatically when the work is created
and fixed in a tangible form, such as the first time it is written or
recorded. No other action is required to secure copyright protection
– neither publication, registration nor other action in the
Copyright Office (although registration is recommended).
The use of a copyright
notice is no longer required under U.S. law, although it is
recommended
Copyright law does not
make any specific provision that creative work must explicitly be
flagged as copyright, but does make provision for “fair use,"
and this is where confusion can arise.
What is “fair use”?
Fair use of creative work
is a complex body of law. It does not always make a good defense
either so if you are unsure whether or not you can fairly use
somebody else’s work, play it safe and do not use it.
Where the law is clear
about fair use are situations in which the intellectual property is
being used to support another body of work. They are as follows:
• A small percentage of
owned intellectual property – this allows writers, reviewers
and commentators etc., to quote other peoples work for the purpose of
supporting their own ideas.
• A single screen shot
– allows you to capture a scene from film, TV or video game to
support a critique or commentary
• Teaching and
lecturing – if you are giving an online lecture, you can use
intellectual property to summarily your point
• Quoting song titles
as part of a review – you have to be careful when quoting song
titles, but it can be used in reviews or to emphasis a point in an
article which the lyric bears relevance
What constitutes a
breach of copyright laws?
There is practically no
legitimate defense against violation of copyright. The courts will
rule that you have breached copyright ownership if you use creative
content without permission.
A breach of copyright
will usually result in a fine, and the following is not a defense for
copyright infringement:
You did not know the
material was copyrighted
You have removed the
image and are no longer using it
You modified the
original image (you need permission for this)
You acknowledged the
original creator
You are not making
money from the copyrighted work
You used a
disclaimer on your website
Besides federal trademark
and service mark registration, a service mark or logo can be
registered within a state. Florida Trademarks and Service Marks may
be registered with the Florida Department of State pursuant to
Chapter 495, Florida Statutes. Rights to a name or mark are perfected
by actual use in the ordinary pursuit of the specific endeavor;
rights are not perfected by registration only, and the general rule
of "FIRST IN USE, FIRST IN RIGHT" is applicable.
Florida
Statute 495.131 Infringement.--
(1)
Use, without the consent of the registrant, any reproduction,
counterfeit, copy, or colorable imitation of a mark registered under
this chapter on any goods or in connection with the sale, offering
for sale, distribution or advertising of any goods or services on or
in connection with which such use is likely to cause confusion or
mistake or to deceive as to the source or origin of such goods or
services; or
(2)
Reproduce, counterfeit, copy or colorably imitate any such mark and
apply such reproduction, counterfeit, copy or colorable imitation to
labels, signs, prints, packages, wrappers, receptacles or
advertisements intended to be used upon or in conjunction with the
sale, offering for sale, distribution or advertising in this state of
goods or services;
Shall be liable in a civil action by
the owner of such registered mark for any or all of the remedies
provided in s. 495.141, except that under subsection (2) hereof the
registrant shall not be entitled to recover profits or damages unless
the acts have been committed with knowledge that such mark is
intended to be used to cause confusion or mistake or to deceive.
(1)
Any owner of a mark registered under this chapter may proceed by suit
to enjoin the manufacture, use, display or sale of any counterfeits
or imitations thereof and any court of competent jurisdiction may
grant injunctions to restrain such manufacture, use, display or sale
as may be by the said court deemed just and reasonable, and may
require the defendants to pay to such owner all profits derived from
and/or all damages suffered by reason of such wrongful
manufacture, use, display or sale and to pay the costs of the action;
and such court may also order that any such counterfeits or
imitations in the possession or under the control of any defendant
in such case be delivered to an officer of the court, or to the
complainant, to be destroyed. In assessing profits the plaintiff
shall be required to prove defendant's sales only; defendant must
prove all elements of cost or deduction claimed. In assessing damages
the court may enter judgment, according to the circumstances of the
case, for any sum above the amount found as actual damages, not
exceeding 3 times such amount. If the court shall find that the
amount of the recovery based on profits is either inadequate or
excessive the court may in its discretion enter judgment for such
sum as the court shall find to be just, according to the
circumstances of the case. Such sum in either of the above
circumstances shall constitute compensation and not a penalty.
And
so there you have it. A copyright is automatic. The moment I write
these words, even if I don't register them as copyrighted, even if I
don't publish them -- are copyrighted. According to Florida law as
shown above anyone who knowingly and wrongfully uses a service mark
(which is a logo or graphic) registered with the state may be
required to forfeit their profits as damages.
