Copyright, fair use, and infringement basics.

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.

495.141  Remedies.--

(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.