Copyright protection automatically applies to "original works of authorship" that are "fixed in a tangible medium of expression." The definition is less complicated than it sounds. If you create a blog post, podcast, or article, your work is covered by copyright the instant it is created in a tangible form, such as on paper, in a blog post, email, or video. You do not need to do anything more, such as signing or filing any papers or provide specific notice to the world that the work is covered by copyright. (You may however wish to provide copyright notice and register your copyright; see the section on Copyright Registration and Notice for more information.) Assuming it meets the requirements for protection, a work is automatically copyrighted in the U.S. and in over 160 other countries from the moment of its creation.

Original Works of Authorship

The level of creativity required for a work to be "original" is extremely low. A work satisfies this requirement as long as it possesses some creative spark, "no matter how crude, humble or obvious it might be." Feist Publ'ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). A work that originates from the author and contains any level of creative expression will satisfy the originality requirement. In the Feist case, the Supreme Court held that listing names alphabetically in a phone book is not creative; almost anything more creative than that probably qualifies.

Sometimes, a creative work will have both original and unoriginal elements. In that case, the owner of the copyright to the work may assert rights over the original elements, but not the unoriginal elements. For example, a hip-hop music publisher recently sued the famous rapper, 50 Cent, claiming that his popular song, "In Da Club," infringed the publisher's copyright in a song called "It's Your Birthday" (written by another hip-hop artist named Luther Campbell). Lil' Joe Wein Music, Inc. v. Jackson, No. 06-16342 (11th Cir. 2007). The lyrics to "It's Your Birthday" include the phrase "Go [name], it's your birthday" with various proper names used in succession. 50 Cent's "In Da Club" also includes a section where he sings "Go Shorty, it's your birthday." The court found that the phrase "Go [name], it's your birthday" in Campbell's "It's Your Birthday" was not original -- the evidence showed that Campbell borrowed this phrase from chants popular at hip-hop nightclubs in the early 90s. Although the rest of Campbell's "It's Your Birthday" was protected original expression, the music publisher could not hold 50 Cent liable for infringement because he had only used the "birthday" phrase, which was not original to Campbell.

Fixation in a Tangible Medium

A copyrightable work is considered "fixed in a tangible medium" if it can be perceived, reproduced, or otherwise communicated for more than a transitory period. This includes any electronically readable formats (e.g., a blog post, email, or even storage in computer memory), audio recordings, and video. It does not matter whether the work has been "published" (i.e., made available to the world), as copyright protection is available to both published and unpublished works, so long as it is otherwise fixed in a tangible medium.

Some examples include:

• Text, audio files, video content, and photographs that you see on a website (or elsewhere, for that matter)
• Sound recordings, including spoken and musical content of a podcast
• Articles found in magazines and newspaper
• Songs recorded on a CD, saved to a hardrive, or notated on sheet music
• Literary works such as books
• Musical works (including the accompanying words)
• Dramatic works (including the accompanying music)
• Choreographic works
• Pictorial, graphic, or sculptural works
• Motion pictures and other audiovisual works
• Architectural works

This list is not exclusive. Copyright protection can apply to any work fixed in any tangible medium of expression, whether this medium is currently known about or is yet to be developed, so long as the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. See 17 U.S.C. Sec. 102.

Some works cannot be copyrighted; visit the section on Works Not Covered By Copyright for more information.

 

Copyright law grants you several exclusive rights to control the use and distribution of your copyrighted work. The rights include the exclusive power to:

1. reproduce (i.e., make copies of) the work;
2. create derivative works based on the work (i.e., to alter, remix, or build upon the work);
3. distribute copies of the work;
4. publicly display the work;
5. perform the work; and
6. in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

See Section 106 of the Copyright Act.

As a copyright owner, you can transfer each of these rights to others, either individually (e.g., just the reproduction right or just the display right) or as a group (all of the rights listed above). Additionally, although the exclusive rights are broad, copyright law does not give you an attribution right (i.e., the right to require that your name be associated with the work). Thus, if you decide to transfer or license any or all six of the rights listed above and wish to have your name be associated with the work, make sure to provide for attribution through the contract or license. For information on how to transfer or license rights under copyright, visit the Copyright Licenses and Transfers section of this guide. Note that if you are a minor, although you retain ownership over your own copyrightable work, state laws may restrict your ability to conduct business transactions, such as licensing and transfer.

If someone else performs an action that violates one of these exclusive rights without your permission, you can sue that person or entity in federal court for copyright infringement. Bear in mind that certain prerequisites apply before you can file suit-- consult the Copyright Registration and Notice section of this guide for details.

Copyright Duration

You can exercise these six rights for the duration of the copyright term. For works created on or after January 1, 1978, this term will vary depending on who is the rightful copyright owner:

• If you create the work on your own, the copyright term lasts from the date of creation to your death plus 70 years.

• If you create the work with others, the copyright term lasts from creation to 70 years after the last surviving author dies.

• If the work qualifies as a work made for hire, the copyright term lasts until 95 years after publication or 120 years after creation, whichever is sooner.

• If an anonymous or pseudonymous author creates the work, the copyright term lasts for 95 years after publication or 120 years after creation, whichever is sooner.

Because copyright rules changed significantly in 1978, the copyright terms for works created prior to 1978 follow different rules. For an explanation of the rules relating to copyright term for works created prior to 1978, see the U.S. Copyright Office's official website. You can also find more information on when works fall into the public domain in the Works Not Covered By Copyright section of this Guide.

Copyright protection begins when an original work becomes fixed in a tangible medium of expression. (For more information on when a work is "fixed" and what qualifies for protection, see Copyrightable Subject Matter). As a general rule, the creator of the work (the author) owns the copyright.

You are the author of a work if you create something original, as opposed to merely copying the work of another. For instance, you are the author of a blog post when you put the story/idea/information into "expression" through words. In contrast, merely coming up with an idea does not make you the author because nothing has actually been expressed.

As the sole owner of a copyrighted work, you enjoy certain exclusive rights. However, if you collaborate with other authors to produce a final work, or if you allow another person to use copyrighted work in a collection of works, copyright law treats you differently.

Joint Authorship

When two or more authors materially contribute to a work, and each does so with the intent of creating a single work, the work is "jointly authored."

A "material contribution" must be independently copyrightable (i.e., original, fixed in a tangible medium of expression, not non-copyrightable material like facts or ideas). If you only contribute non-copyrightable elements, such as ideas and suggestions, then you're not an author.

For example, if a friend suggests a topic that you subsequently blog about, you alone own the copyright on the posting because your friend contributed nothing but non-copyrightable material (the idea).

As another example, let's say you work with a group of journalists and someone routinely edits your work. If the editor is only fixing facts or making minor grammatical changes, you are still the sole owner of the copyright. However, if the editor's changes are more substantial, such that he is contributing original content or points of view, the work might be jointly authored.

Finally, consider multiple individuals contributing to the creation of a website. One person does page layout, another handles graphics, and a third develops the underlying code. Copyright ownership will vest jointly in all of these contributors.

Your Legal Rights As a Joint Author

If you are a joint author, you hold an equal interest in the copyright with the other authors regardless of your actual contribution to the work.

Technically speaking, you hold an undivided ownership share in the copyright. An undivided ownership share provides nearly all the rights of individual ownership, while also sharing the value of those rights. As a joint author, you retain the right to reproduce the work, create derivative works, distribute copies of the work, and publicly display or perform the work without getting the permission of the other joint authors. Of course, this goes both ways, and the other joint authors may do the same. You can also transfer your undivided ownership share without seeking approval.

As a joint author, you cannot grant an exclusive license. Granting an exclusive license would directly harm the other joint authors, and thus you need their approval. See the section on Copyright Licenses and Transfers for more on the difference between exclusive and non-exclusive licenses.) However, you may grant non-exclusive licenses without approval from the other authors, which can lead to situations in which each author licenses the work to a different publisher.

Finally, as a joint author you share in the value created through performance, distribution, or licensing of the work. Because each joint author only has a share in the copyright, any value must be distributed equally to all joint authors.

What to Consider if You are Working with Other Authors

You don't have to be restricted by the rules of joint authorship detailed above. Instead, you and your co-authors can enter into a collaboration agreement (a contract) to alter your rights and obligations. A collaboration agreement defines the responsibilities, compensation, and control of each author. Collaboration agreements may also designate how credit will be presented (e.g. the list of authors) and may outline the approval process to license or transfer an author's rights. As an example of a collaborative agreement, see Hollywood Comics' template.

Collective Works

A collective work consists of smaller works that are independently copyright-protected. Whereas a work of joint authorship is a single copyrightable work with contributions that were not intended to stand alone, a collective work compiles constituent parts that do (and often were originally intended to) stand alone.

The person who assembles the collective work (the "collective author") owns the copyright to the selection and arrangement, but the owners of the copyrights to the underlying works retain their rights. See 17 U.S.C. 201(c), 17 U.S.C. 103(b).

Copyright law gives the collective author the right to reuse the underlying works in a subsequent publication if that subsequent publication is:

1. the same collective work;
2. a revision of the same collective work; or
3. a later collective work in the same series.

See 17 U.S.C. 201(c). If the collective author wants to include the underlying works in a different manner than the above three categories, she needs to get express permission from each copyright owner.

Some common examples of collective works are poetry anthologies, newspapers, magazines, and scholarly journals. In general, each discrete edition of the newspaper, magazine, or journal is a collective work made up of individual articles, some of which are written by freelancers. (For a discussion on the difference between the work created by a freelancer--or independent contractor--and an employee, see the section on Works Owned by Someone Else.) The freelancer owns the copyright to his individual contribution, and the publisher owns the copyright to the collective edition of the newspaper.

Generally, a publisher can reprint an article from one issue in a later issue of its newspaper or magazine ("a later collective work in the same series"). However, when publishers publish in new media, the legal issues get more complex. In one case, the New York Times digitized articles from its print edition, put them in a database, and made them individually available online. The Supreme Court held that because the online version of the articles were viewable individually, they violated the freelance writers' copyrights because they were were "disconnected from their original context" and did not replicate the original selection and arrangement. See New York Times Co. v. Tasini, 533 U.S. 483 (2001). On the other hand, the Court suggested that preserving the collective work through microfilm would be a permitted revision because the microfilm maintains the original organization, layout, and context of the collective work. Thus, a magazine publisher can distribute digital scans of their print magazines, since the resultant work uses the "almost identical 'selection, coordination, and arrangement' of the underlying works as used in the original collective works." See Faulkner v. National Geographic Enters., 409 F.3d 26, 38 (2nd Cir. 2005).

While most cases involve a collective work transitioning from print to digital publication, there is no reason to believe the same would not hold true in the opposite direction. Thus, if you created a web page of the most influential blog posts from 2001-2005, getting permission from each original poster to do so, you would need to retain the selection, coordination, and arrangement in order to also distribute a print version.

What This Means For You

When you allow someone else to use your work in their collective work, you are not giving the collective author the rights to do whatever she wants. If you are compiling a collective work, the permission an author gives you to use a work in your collective does not give you free reign to use that work as you please. You should pay particular attention to these points if you are publishing or distributing in multiple mediums. If you have a particular concern about how, where, and when works may be used, be proactive and ensure those details are finalized in a written contract. See the sections on Copyright Licenses and Transfers and Getting Permission to Use the Work of Others for more information.

In general, if you create a work, you are the copyright owner of the work. However, if you create a work for hire, copyright law recognizes the person who hires you as the owner of the work. Your work may be a work for hire if you create it as an employee or as an independent contractor (a freelancer). However, if you are an independent contractor, the law makes it harder for the hiring party to obtain the copyright ownership of your work. While we discuss the work for hire doctrine below, you may wish to also consult Keep Your Copyright's excellent resource on Works for Hire for more information.

Employee

Your work falls under the work for hire exception if you create it in a conventional employment setting. For example, if you write blog posts as part of your job responsibilities, your employer owns the copyright to those posts.

However, determining whether an employee creates a work in the scope of employment is not always so straightforward. For example, if you write a screenplay during your lunchtime, you own the copyright to the screenplay. As another example, a university professors, despite being an employee of the university, owns the copyright to her textbooks, scholarly articles, and blog posts. (See Columbia University's copyright policy and Trinity University's copyright policy as examples of how educational institutes are following this practice.)

Independent Contractor

Your work may also fall under the work for hire exception when you create it as a freelancer, if:

• You and the person hiring you enter into a written agreement stating that the work shall be considered a work made for hire, and
• it falls into one of nine categories of works outlined in the copyright statute. The nine categories of works are those "specially ordered or commissioned" for use as:

a contribution to a collective work part of a motion picture or other audiovisual work a translation a supplementary work a compilation an instructional text a test answer material for a test an atlas

The person who hired you as an independent contractor owns the copyright to the work only if these two conditions are met. Otherwise, copyright ownership remains with you. Therefore, as a freelancer, you own the copyright to your work unless you sign a contract explicitly designating it as a work for hire. This gives freelancers a considerable amount of bargaining power in negotiating the terms for a commissioned work.

Issues to Consider

The work for hire area is complex. Whether someone is an employee or independent contractor often turns on specific factual circumstances, and includes a discussion on factors outlined in the business section on Employee Versus Independent Contractor. Additionally, whether a work fits into one of the above nine categories hinges on sometimes difficult distinctions. You should safeguard against any future misunderstandings by being clear about your relationship in writing.

For example, if you're contemplating a situation in which the person hiring you will own the copyright to your work (which falls into one of the nine categories), not only should you add express language about the work being "made for hire", but you should also consider bargaining for additional compensation due to giving up your copyright ownership.

On the flip side, if you are commissioning someone to make a work "made for hire," make sure that the work fits into one of the nine categories listed above. If the work clearly does not fit into one of those categories, consider having the freelancer assign the copyright to the work to you as part of the agreement, or adjust the payment to reflect your lack of copyright ownership.

You may want to consult a lawyer before entering into an relationship where you will be creating works for someone else or hiring someone to create work for you. Refer to the section on finding legal help to explore your choices.

Although you do not need to use a copyright notice or register your work in order to hold a copyright in the work, notice and registration give you a number of benefits, which we discuss below.  (For more information on the basic requirements of copyright ownership, see the section on Copyright Ownership in this guide.)

Copyright Notice

By putting a copyright notice on your work, you inform the public that your work is protected by copyright. Notice allows someone to contact you for permission to use your work. Notice also limits the ability of someone who infringes your work to claim they didn't know of the copyright's existence.

A copyright notice of must be affixed (or must exist in a place) so that it “give[s] reasonable notice of the claim of copyright.” A notice of copyright typically includes the copyright symbol, ©, the year of first publication, and the name of the owner of the copyright. For example, © 2008 Berkman Center for Internet & Society.

The copyright symbol may be replaced by the word “Copyright” or the abbreviation “Copr.” For example, Copyright 2008 Citizen Media Law Project and respective authors.

You do not need to register your work before putting notice on it. Note that if your work is a sound recording embodied in "phonorecords", you will need to complete a separate form for copyright notice.

Registration

Copyright registration is not a prerequisite to copyright protection. However, registering a copyright in your work with the U.S. Copyright Office provides the following advantages:

• A public record of your copyright claim in your work: A public record serves as an even stronger notice of your ownership claim; notice is provided to the entire world and is not limited to those who see your work with the copyright notice attached.

• The ability to file suit to enforce copyright in federal court: You must file an application for registration and have it either granted or refused before you can sue, even if the infringement has already occurred.

• Evidence that your copyright is valid: Filing your registration within 5 years of publishing your work will help you in the event that you need to bring a copyright infringement lawsuit in court. Your registration will provide prima facie evidence (i.e. satisfy a basic level of proof) of the validity of your copyright. This does not mean that your claim of copyright ownership is guaranteed. However, instead of having to prove that you are the actual copyright owner, the other party will have to prove that you are not. While this may seem like a semantic distinction, you are in a stronger position given that the presumption of copyright ownership is on your side.

• Statutory damages and attorney's fees: If you file your registration of copyright within 3 months of publishing your work, or at any time prior to an infringement, your registration allows you to recover statutory damages and attorney’s fees. The statutory recovery provision may be of help because copyright owners often find it difficult to calculate and prove exactly how an infringement has hurt them. When applicable, statutory damages for infringing uses of a work usually entitle you to a pre-determined amount of damages (ranging from $750 to $30,000 per work infringed). 17 U.S.C. § 504(c).

For more on why you might want to register your works, please see Sarah Bird's excellent post, Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work Is Protected Automatically.

Bear in mind that when you register a work, the Copyright Office does not validate the accuracy of your copyright claim. Also, registration (and copyright law in general) does not protect against similar, independently created works. A person can create a work that is substantially similar to yours without legal ramifications, so long as that person created the work without any reliance on your work (i.e., never read, saw, heard about it, etc.).

Registering Online Works

Online works (including web pages) provide a unique challenge for those wishing to register their work. Online works are typically updated frequently, with content changing regularly. Unfortunately, under copyright law, each substantially updated version (or, in legal terminology, derivative work) must be registered separately. For more details on the registration of online works, see the U.S. Copyright Office's Circular #66: Copyright Registration for Online Works.

The U.S. Copyright office does, in some instances, provide the ability to register copyrights in a group (i.e., a single registration covering multiple versions). Specifically, you can register an automated database, a serial (published weekly or less often), and a newsletter (published more often than weekly) to get protection for multiple versions. Some web sites have registered under these classifications, but it remains to be seen if/how the contents will be protected. For more details on these alternative types of registration, see the U.S. Copyright Office's Circular #62: Copyright Registration for Serials and Circular #62a: Group Registration of Newspapers and Newsletters on Form G/DN.

How to Register

The process of registering a copyright with the U.S. Copyright Office is relatively straightforward. Sarah Bird at Seomoz.org has a fantastic resource on Sample Forms and Strategies for Registering your Online Content.

There are four basic steps to the registration process:

1. Determine which form to use and fill it out

• For written works (which also includes computer programs and online works), use Form TX (for a version of the form with detailed instructions click here).
• For pictorial or photographic works, use Form VA (version with instructions here).
• For other types of works, see the U.S. Copyright Form Page to determine which form is required.

Note: For compilations, use the form that best fits the majority of the work.

2: Determine how many copies are needed

• Written works:
  • For unpublished works, provide 1 copy.
  • For published works, provide 2 copies.
  • For online works, either provide a labeled computer disk containing the work or a printed version of the work.
  • For more specific details about these and other written works, see the "deposit requirements" link located at the U.S. Copyright Office's Literary Works page.

• Pictorial or photographic works:
  • For pictorial or graphic works, provide 2 copies.
  • For photographic works, provide 2 copies (1 if the work is unpublished).
  • For more specific details about these and other visual art works, see the "deposit requirements" link located at the U.S. Copyright Office's Visual Works page.

As part of the Copyright Office's new "Electronic Copyright Office" ("eCO") system, certain works can now be uploaded instead of physically mailed when registered online. For more on this process, visit the eCO page.

Note: copies are non-returnable.

3. Pay the fee

• The current cost for registering a copyright is $35 for electronic filing and $45 for paper filing.
• Checks should be made payable to "Register of Copyrights."

4. Mail the package

The mailing address is:

Library of Congress Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

Best Practices for Protecting Your Work

• Use a copyright notice with your work. This takes little effort and can provide significant benefits to you.


• Consider registering your online work within three months of publication. The benefit of getting statutory damages if you sue someone successfully for copyright infringement may outweigh the costs of registration.


• Look into alternative forms of registration. If your work could be categorized as a "serial," "newsletter," or "automated database," you may be able to get protection for multiple versions without the cost and effort involved in registering each individual iteration.

A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. For more information on copyright creation and ownership see the Copyright Ownership section of this legal guide.

If you are the copyright owner of a work (and you likely will be if you created the work), such as an article, a blog post, a photograph, or a video, you can authorize others to use it. You can do this by transferring to the person or entity that wants to use your work any or all of your rights as a copyright owner, or any subdivision of those rights. Alternatively, you can license any or all of those rights (or any subdivision of them) to that person or entity.

As the person granting the transfer or license, you have a great deal of freedom in how to structure the transaction. How you choose to do so can have a substantial impact on your ability to make money from the work, the amount of control you retain over it, and the costs associated with the transaction. Often, it will make sense to hire a lawyer in order to deal with such a transaction because of the complexity of the subject-matter, the potential flexibility of the transaction, and the potentially high stakes. On the other hand, there are three models or approaches that generally do not require the assistance of a lawyer: an "all rights reserved" approach, using a Creative Commons license, and a dedication to the public domain. Whether one of these three approaches or some other approach is best for you is a matter of personal preference. In the discussion that follows, we go into more detail to give a sense of the issues involved and to explain how you can effectively transfer or licensing your work.

The decision about whether and how to license or transfer your work will depend on your own personal preference. There are a number of factors that you may want to consider in reaching your decision, including the potential for making money from the work, the extent of control retained over the work, the costs involved in the licensing/transfer transaction, and the permanence of the measure. These and other issues are addressed below.

Making money from your work

One obvious benefit to licensing/transfer is that people or businesses may be willing to pay you for use of your work. In some instances, this payment can be a significant source of income and may help support your project or website as well. In the How to Effectively Transfer or License Your Work section, we discuss three models for licensing/transferring your content: an "all rights reserved" model, using a Creative Commons (CC) license, and dedicating your work to the public domain. The most direct way of seeking revenue from exploitation of a work is to reserve all rights with respect to the public at large and then to pursue selective licensing or transfer deals in exchange for money. This is because granting a CC license to the public does not involve payment in return, although it does not rule out granting other licenses in exchange for money, and a public domain dedication obviously gives up all your rights to exploit the work. In contrast, if you are interested in contributing to, or gaining extra exposure in, an artistic, intellectual, business, or other community (perhaps with indirect financial benefits), a CC license or public domain dedication might be more appropriate.

One thing to keep in mind is that a full transfer of your rights will probably fetch more money in the short term than a non-exclusive license, but this comes with a corresponding sacrifice in terms of control of the work and personal exploitation.

Another thing to consider is whether your goals in relation to your work may change over time. Your aim now might be to gain exposure, but you might wish to commercialize your work down the line. Granting broad permission for others to freely use your work (through a CC license or similar) now may curtail your ability to commercialize the same work in the future. 

Retaining control of your work

Retaining control of your work is another significant issue. The important thing to remember in this regard is that you are not presented with an "all or nothing" scenario. You have significant freedom in how you structure your transfer or license, and the amount of control you retain is largely up to you. For details, please see the Which Rights Can Be Transferred or Licensed section.

For those seeking more control, an "all rights reserved" model combined with selective licensing transactions may be the best route, but this may necessitate the help of a lawyer specializing in intellectual property licensing. A CC license offers slightly less control (because the license is given to the public at large and generally allows sub-licensing on the same terms), but it is much lower cost because the entire process is automated on the CC website. That said, you still retain significant control with a CC license. For instance, you can grant the public a license to copy and distribute your work, but bar them from making derivative works (adaptations) of it or using it for commercial purposes. For more on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.

Are there any costs involved?

Different costs are involved based on which approach you take. For instance, granting a CC license to the public is free, but you will not make money directly from the license. Because a CC license is non-exclusive, you can still enter into one-on-one transactions for money, but these are more complex and likely require the assistance of a lawyer, which is expensive. Registering the transfer with the Copyright Office, an optional step which some copyright transferors take to protect their interests, also carries a fee (see Copyright Office Fees). Likewise, reserving your rights with regard to the public at large and transferring or licensing your rights in one-on-one transactions for money is likely to be expensive for the same reasons. You can dedicate your work to the public domain at no cost, but by doing so you give up all control and prospect of future remuneration.

If I transfer or license my work, is this permanent?

Not necessarily. The length of time that a grant lasts will depend on the transfer or license arrangement you enter into. For instance, you can grant a transfer or license your rights in relation to your work for a specified duration of time (see the Which Rights Can Be Transferred or Licensed section). If you do not specify an end date in the executing document, or even if you if specify that the transfer or license is permanent and irrevocable, under the Copyright Act the grant is generally terminable by your (or your successors) within a five year window starting 35 years after the execution of a grant (see the Terminating a Transfer or License section).

It is also worth noting that if you grant a non-exclusive license to a person, and do not receive "consideration" (payment or some other kind of benefit in exchange for the grant) from them, this license is revocable (see the How to Effectively Transfer or License Your Work section).

How this all works with a CC license is not 100% clear. All varieties of CC license have a clause saying that the license grant is non-revocable. According to the CC FAQ:

This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.

It is not entirely clear whether the contractual language purporting to make the license non-revocable would stand up to a legal challenge based on the automatic termination right granted by the U.S. copyright law or the argument that a CC license is a non-exclusive license made without consideration. In any event, it is probably safest to assume that a CC license is permanent, so you should think very carefully about whether or not you are happy with the public making use of your work in the way described in the license.

If I license or transfer my work, does it affect what I can do with the work?

It depends. If you transfer all or one of your rights to someone else, then you may no longer exercise those rights. If you grant an exclusive license to someone with regard to a particular right or group of rights, then you are similarly prohibited from exercising those rights. But if you grant a non-exclusive license to someone else to exercise a right or group of your rights, then you are free to continue exercising the right or group of rights and authorizing others to do so. A CC license is a non-exclusive license, so granting the public a CC license does not affect your ability to use your work. For more information on what constitutes a "transfer," an "exclusive license," and a "non-exclusive license," please see the Understanding the Difference Between a Transfer and a License section.

Can others use my copyrighted work without being granted a license or transfer?

Yes. United States copyright law allows others to make "fair use" of your work without permission. Under the fair use doctrine, third parties are permitted to use your copyrighted work without your permission for limited and "transformative" uses, including criticism, commentary, news reporting, parody, and teaching. For example, if a blogger quotes a paragraph from an article or post on your website and compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without a license. Nevertheless, fair use is a notoriously fact-sensitive defense to a copyright claim, and it is difficult to determine beforehand whether a particular use is a fair use. See the Fair Use section for more details. For this reason, many people may prefer to seek out a license before engaging in a use that might be a "borderline" fair use. When you grant someone permission to use your work via transfer or licensing, the idea is that you are permitting them to engage in a use that would not be "fair" under the law.

 

You may want to use or incorporate someone else's work into your own. While the works of others may be protected by copyright, there are a class of works that fall outside the scope of copyright law. The following categories of work are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice.

• Facts
• Works created by the United States Government
• Works not fixed in a tangible form of expression
• Ideas, concepts, principles, or discoveries
• Words, phrases, or familiar symbols

Additionally, even works that qualify for copyright protection fall into the public domain after a certain period of time.

Facts

You can use facts in your online work without the fear of liability because facts are not protected under copyright law. As we explain in the section on Copyrightable Subject Matter, copyright protection applies to "original works of authorship." Although the level of creativity required to be "original" is extremely low, facts do not have the requisite level of creativity. For example, baseball scores, telephone numbers, dates of birth, and the number of people at a protest are noncopyrightable facts.

However, there may be situations in which a compilation of facts may be protected if the creator of the original publication selected, coordinated, or arranged the facts in an original way. For example, a sports almanac may arrange baseball scores in a creative way, a genealogy chart may arrange birth dates in an original way, or a cookbook may arrange ingredients in a creative and original way as part of its recipes. In each of those instances, the creator of the work would have a copyright in the creative arrangement of the facts, but not the facts themselves.

Works Created by the United States Government

You can use any work of the United States Government because copyright law does not cover such works. Works of the United States Government include:

• federal judicial decisions
• federal statutes
• speeches of federal government officials given in the course of their employment
• federal government press releases
• federal government reports (such as census reports)

However, note that copyright law may protect works created by others that the United States Government receives by assignment, bequest, or otherwise.

While federal copyright law does not expressly apply to the works of state governments, state laws are similarly uncopyrightable. See Tim Armstrong's analysis in Can States Copyright Their Statutes? for more information. However, be aware that Oregon recently asserted copyright ownership "in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law." See our blog post, Oregon Claims Copyright in Its Statutes -- Well, Sort Of, discussing the validity of Oregon's copyright claim.

Works Not Fixed in a Tangible Form of Expression

Copyright protection only applies to "original works of authorship" that are "fixed in a tangible medium of expression." Consequently, if you attend an improvisational speech that has not been notated or recorded, you may publish the speech in your online work without fear of liability. (However, you should cite the speech in order to avoid the taint of plagiarism.)

Ideas, concepts, or principles

Copyright does not cover ideas, concepts, and principles themselves, only the form in which they are expressed. For instance, merely coming up with an idea does not make you the copyright owner because you haven't actually expressed anything. You become the copyright owner only when you put that idea into "expression" through words (e.g., in a blog post) or other tangible form (e.g., in a video, a photograph, or a podcast).

For example, Einstein's theory of special relativity is not copyrightable because it is an idea (or concept or principle). However, Einstein's article, "On the Electrodynamics of Moving Bodies," in which he explained and expressed the theory, was copyrightable.

If you come across an idea/concept/principle, you can use it in your online work with out fear of liability as long as you do not use the form in which it is expressed (which may be copyrightable). However, you should consider citing to the source in order to avoid a claim of plagiarism.

Words, Phrases, or Familiar Symbols

In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.)

While copyright protection may not apply, be aware that trademark law protects certain words, short phrases, slogans, symbols, and designs. For example, trademark law protects the word "Apple," the slogan "Got Milk?" and the Nike symbol of the "swoosh." See the Trademark section for more information on using a trademark protected word, phrase, symbol, or other indicator that identifies the source or sponsorship of goods or services.

Works in the Public Domain

You can use any work in the public domain without obtaining permission of the copyright owner. A work falls into the public domain when the copyright term expires or, in the case of works published between 1923 and 1989, if the work lost copyright protection because the copyright owner neglected to take the necessary steps under then-applicable copyright law. Additionally, a copyright owner can directly dedicate a work to the public domain. This is done expressly, through language such as "Everything on this site to which we own copyright is hereby released into the public domain," or by using the Creative Commons Public Domain Dedication.

Determining whether any particular work is in the public domain is a complex task, and the answer often depends upon when the work was published, whether it was published with notice, and whether the copyright holder subsequently registered the work. However, there are some rules of thumb that will help you with this analysis:

• First, any work that was published before 1923 is in the public domain.
• Second, any work published without a copyright notice between 1923 and 1977 is in the public domain.
• Third, works created after 1989 generally are not in the public domain, regardless of notice or registration, unless the work has been dedicated to the public domain.

If you want to go beyond these rules of thumb to understand more of the specifics, Cornell Law School has an excellent chart that shows when different types of works (published, unpublished, published outside the US) will fall into the public domain based on an analysis of pre- and post-1978 copyright law. Additionally, the Creative Commons' Podcasting Legal Guide has a terrific discussion on how to determine whether a work is in the public domain.

A word of caution about using public domain works. You should check whether a public domain work has already been incorporated into another work. Although the public domain portions of that new work are not protected, the author's new expressive content and selection and arrangement of the public domain work may be protected by copyright. Creative Commons' Podcasting Legal Guide gives two examples that illustrates this potential issue:

• Photographs of the Mona Lisa that are designed to precisely replicate the original work will likely not enjoy copyright protection because they are intended to capture Leonardo Da Vinci's expression of the painting as closely as possible. However, a photograph of a sculpture that is in the public domain may be protected by copyright because of the skill and creativity involved in composing the photograph.
• The text of a book in the public domain may be used freely, but a current publisher of the book may have copyright rights to the expressive elements of a recently published edition (e.g. the new layout, cover art, etc.).

The policy behind copyright law is not simply to protect the rights of those who produce content, but to "promote the progress of science and useful arts." U.S. Const. Art. I, § 8, cl. 8. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.

Section 107 of the Copyright Act defines fair use as follows:

Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test.

The Four Fair Use Factors

1. Purpose and Character of Your Use

If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). Purposes such as these are often considered "in the public interest" and are favored by the courts over uses that merely seek to profit from another’s work. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004). When you put copyrighted material to new use, this furthers the goal of copyright to "promote the progress of science and useful arts."

In evaluating the purpose and character of your use, a court will look to whether the new work you've created is "transformative" and adds a new meaning or message. To be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. Although transformative use is not absolutely necessary, the more transformative your use is, the less you will have to show on the remaining three factors.

A common misconception is that any for-profit use of someone else's work is not fair use and that any not-for-profit use is fair. In actuality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the circumstances. Courts originally presumed that if your use was commercial it was an unfair exploitation. They later abandoned that assumption because many of the possible fair uses of a work listed in section 107's preamble, such as uses for purposes of news reporting, are conducted for profit. Although courts still consider the commercial nature of the use as part of their analysis, they will not brand a transformative use unfair simply because it makes a profit. Accordingly, the presence of advertising on a website would not, in of itself, doom one’s claim to fair use.

If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use. In addition, if you use the original work in order to create a parody this may qualify as fair use so long as the thrust of the parody is directed toward the original work or its creator.

Moreover, if the original work or your use of it has news value, this can also increase the likelihood that your use is a fair use. Although there is no particular legal doctrine specifying how this is weighed, several court opinions have cited the newsworthiness of the work in question when finding in favor of fair use. See, e.g., Diebold, 337 F. Supp. at 1203 (concluding "[i]t is hard to imagine a subject the discussion of which could be more in the public’s interest”), Norse v. Henry Holt & Co., 847 F. Supp. 142, 147 (N.D. Cal. 1994) (noting "the public benefits from the additional knowledge that Morgan provides about William Burroughs and other writers of the same era").

2. Nature of the Copyrighted Work

In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may rely more heavily on these items and still enjoy the protections of fair use. Unlike factual works, fictional works are typically given greater protection in a fair use analysis. So, for example, taking newsworthy quotes from a research report is more likely to be protected by fair use than quoting from a novel. However, this question is not determinative, and courts have found fair use of fictional works in some of the pivotal cases on the subject. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).

The published or unpublished nature of the original work is only a determining factor in a narrow class of cases. In 1992, Congress amended the Copyright Act to add that fair use may apply to unpublished works. See 17 U.S.C. § 107. This distinction remains mostly to protect the secrecy of works that are on their way to publication. Therefore, the nature of the copyrighted work is often a small part of the fair use analysis, which is more often determined by looking at the remaining three factors.

3. Amount and Substantiality of the Portion Used

Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability. Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.

If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.

Of course, if you are reviewing a book or movie, you may need to reprint portions of the copyrighted work in the course of reviewing it in order to make you points. Even substantial quotations may qualify as fair use in "a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections.

4. The Effect of Your Use Upon the Potential Market for the Copyrighted Work

In examining the fourth factor, which courts tend to view as the most important factor, a court will look to see how much the market value of the copyrighted work is affected by the use in question. This factor will weigh in favor of the copyright holder if “unrestricted and widespread” use similar to the one in question would have a “substantially adverse impact” on the potential market for the work.

Although the copyright holder need not have established a market for the work beforehand, he or she must demonstrate that the market is "traditional, reasonable, or likely to be developed." Ringgold v. Black Entm't TV, 126 F.3d 70, 81 (2d Cir. 1997). An actual effect on the number of licensing requests need not be shown. The fact that the original work was distributed for free, however, may weigh against a finding that the work had publication value. See Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 25 (1st Cir. 2000). Likewise, the fact that the source is out of print or no longer sold will also weigh in favor of fair use.

The analysis under this factor will also depend on the nature of the original work; the author of a popular blog or website may argue that there was an established market since some such authors have been given contracts to turn their works into books. Therefore, a finding of fair use may hinge on the nature of the circulated work; simple e-mails such as those in the Diebold case (discussed in detail below) are unlikely to have a market, while blog posts and other creative content have potential to be turned into published books or otherwise sold. In addition, the author of a work not available online, or available only through a paid subscription, may argue that the use in question will hurt the potential market value of that work on the Internet.

Assessing the impact on a copyrighted work’s market value often overlaps with the third factor because the amount and importance of the portion used will often determine how much value the original loses. For instance, the publication of five lines from a 100 page epic poem will not hurt the market for the original in the same way as the publication of the entirety of a five-line poem.

This fourth factor is concerned only with economic harm caused by substitution for the original, not by criticism. That your use harms the copyright holder through negative publicity or by convincing people of your critical point of view is not part of the analysis. As the Supreme Court has stated:

[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because "parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically," the role of the courts is to distinguish between '[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.'"

Campbell, 510 U.S. at 591-92 (citations omitted).

The fact that your use creates or improves the market for the original work will favor a finding for fair use on this factor. See Nunez, 235 F.3d at 25 (finding fair use when the publication of nude photos actually stirred the controversy that created their market value and there was no evidence that the market existed beforehand).

In summary, although courts will balance all four factors when assessing fair use, the fair use defense is most likely to apply when the infringing use involves criticism, comment, news reporting, teaching, scholarship, or research.  In addition, some general rules of thumb can be helpful in analyzing fair use:

• A use that transforms the original work in some way is more likely to be a fair use;


• A non-profit use is more likely to be considered a fair use than a for-profit use;


• A shorter excerpt is more likely to be a fair use than a long one; and


• A use that cannot act as a replacement for the original work is more likely to be a fair use than one that can serve as a replacement.

Some Special Considerations

Publishing the Contents of Private Letters and E-Mail (including letters from lawyers threatening legal action): Fair use may protect the publication of the content of private letters and email, including communications from lawyers threatening legal action. As mentioned above, unpublished materials sometimes enjoy greater protection than published documents. Although an author may argue that the "unpublished" nature of his or her correspondence warrants a finding against fair use, such an argument carries weight only when the use involves a heretofore secret work “on its way” to publication, which is never the case for lawyers' cease-and-desist letters. Recently, two students at Swarthmore college posted an archive of internal emails among Diebold employees; an online newspaper linked to the archive in an article critical of Diebold’s voting machines. A court held that although the emails were not published, publishing them was nonetheless protected by fair use. Diebold, 337 F. Supp. 2d at 1203. The court found that the important fourth fair use factor weighed in favor of fair use because Diebold had no intention of selling the archive for profit and therefore it lost no value when the archive was published online. The court also noted the students and newspaper use was intended to support criticism of the company, which was a transformative use under the first factor.

Copyright as a Tool to Silence Criticism: Sometimes, copyright owners try to use copyright law as a weapon to squelch speech that is critical of them or their works of authorship. For example, in Savage v. CAIR, a conservative radio host has filed a copyright infringement lawsuit against the Council on American-Islamic Relations for using excerpts of his radio show in order to criticize his rabidly anti-Muslim views and to call for sponsors to withdraw their support from his program. CAIR's use of these audio excerpts, and similar uses of copyrighted material in order to criticize a copyright owner, are almost certainly protected by fair use. As EFF argues in its brief asking the court to dismiss Savage's lawsuit:

The fair use doctrine exists precisely to prevent copyright holders from doing what Savage attempts here -- abusing a limited monopoly granted to encourage creativity to punish dissenters and to chill speech aimed at criticizing copyrighted works. For all his ironic appeals to the First Amendment, Savage asks this Court to punish CAIR for publicly criticizing the offensive content of his radio program. That CAIR's criticism might result in Savage losing popularity (and advertisers) is of no moment to either a free speech or copyright infringement analysis and indeed, should be expected in the marketplace of ideas that the First Amendment and Copyright Act strongly protect.

For another case involving an attempted use of copyright to silence criticism, see our database entry, ABC v. Spocko.

Practical Tips for Avoiding Copyright Liability

While there is no definitive test for determining whether your use of another's copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

• Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
• Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
• Add something new or beneficial (don't just copy it -- improve it!);
• If your source is nonfiction, limit your copying to the facts and data; and
• Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.

If you publish your work online, you are already in the practice of using links to enhance your content. The Web's basic architecture relies heavily on the ability of webpages to link to other pages to allow natural navigation between related content. It is hard to imagine the smooth functioning (or even continued existence) of the Web without hypertext links that act as a reference system identifying and enabling quick access to other material. Fortunately, courts generally agree that linking to another website does not infringe the copyrights of that site, nor does it give rise to a likelihood of confusion necessary for a federal trademark infringement claim. However, different kinds of linking raise different legal issues, and the law is not entirely settled in all of these areas. Moreover, some linking activities may expose you to liability for contributory copyright infringement or trafficking in circumvention technology in violation of the Digital Millennium Copyright Act (DMCA).

Types of Links

Deep Linking: The most straightforward case is so-called "deep linking," which refers to placing a link on your site that leads to a particular page within another site (i.e., other than its homepage). No court has ever found that deep linking to another website constitutes copyright or trademark infringement. Therefore, you can link to other websites without serious concerns about legal liability for the link itself, with the exception of activities that might be contributory copyright infringement or trafficking in circumvention technology (discussed below).

Inline linking: Inline linking involves placing a line of HTML on your site that so that your webpage displays content directly from another site. We now commonly refer to this practice as embedding. For example, many bloggers embed videos from YouTube on their blogs to illustrate a point or initiate discussion. While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007). Other courts may or may not follow this reasoning. However, the Ninth Circuit's decision is consistent with the majority of copyright linking cases which have found that linking, whether simple, deep, or inline, does not give rise to liability for copyright infringement. For discussion of these cases, see The Internet Law Treatise. In addition, merely using an inline link should not create trademark liability, unless you do something affirmative to create the impression that you are somehow affiliated with or endorsed by the site to which you are linking. Thus, embedding media in your online work should not expose you to legal liability, with the possible exceptions discussed below.

Framing: Framing refers to the practice of dividing a web page into multiple sections that use HTML code to pull content from different sources. The law should treat framing much like inline linking for purposes of copyright infringement (see discussion immediately above), but no case has considered the issue of framing in the context of copyright law. Framing potentially raises trademark problems. Depending on how you design your page, a user might be confused into believing that all of the source material is yours. Some plaintiffs have sued websites for framing under trademark and related areas of law, but most cases have settled and the law remains unclear.

Linking to Infringing Works

The situation changes when you knowingly link to works that clearly infringe somebody's copyright, like pirated music files or video clips of commercially distributed movies and music videos. In this situation, you might be liable for what is known as "contributory copyright infringement." Contributory copyright infringement occurs by "intentionally inducing or encouraging direct infringement" of a copyrighted work. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd, 545 U.S. 913, (2005). As long as you do not know that a work infringes someone's copyright, then you cannot be held liable for contributory infringement for directing users to that work. On the other hand, it is not necessarily safe to simply claim that you "didn't know" when the circumstances make it clear the material you link to is infringing. Use your common sense. Fred vonLohman gives the following rules of thumb to help avoid contributory copyright infringement (specifically with reference to embedding videos):"(1) don't embed videos that are obviously infringing, and (2) consider removing embedded videos once you've been notified by a copyright owner that they are infringing." Relatedly, you may be able to protect yourself against claims of contributory copyright infringement by complying with the notice-and-takedown procedures of the DMCA. For details, see Notice-and-Takedown.

Linking to Circumvention Technology Proscribed by the DMCA

Linking also raises legal issues in connection with the anti-circumvention provisions of the DMCA. Section 1201 of the DMCA makes it illegal to traffic in technology that enables others to circumvent technological measures put in place by copyright holders to control access to or uses of their copyright work. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. You can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. For example, one court has held that linking itself is not enough, and liability requires some more direct tie between the offending websites, such as receiving compensation in exchange for linking. See Comcast v. Hightech Elecs., Inc., 2004 WL 1718522 (N.D.Ill. July 29, 2004).

Given the uncertain state of the law, it is best not to knowingly link to sites hosting circumvention software. To be on the safe side, you should also remove user-generated content that links to such postings. This cautious approach may put websites that depend upon high levels of user interactivity in an uncomfortable position, as illustrated by the Digg.com user "revolt" in May 2007.

At some point you may want to use someone else's work. You should first determine whether the work is protected by copyright. Is the work copyrightable? Is it in the public domain? Is your use of the work barred by another area of the law such as trademark law? Keep in mind that a work doesn't have to have a copyright notice affixed to it to be covered by copyright.

Once you've gone through the above analysis and determined that the material you wish to use is protected by copyright, you should seek the copyright owner's permission to use the work. You will first need to identify the copyright owner, and then request permission for your specific use. If you are told that you cannot use the copyrighted work, this doesn't necessarily preclude you from using the work. You will not lose the ability to assert that your use is a "fair use" even if the copyright owner refuses to give you permission to use his work. For more on fair use, see the section on Fair Use in this guide.

1. Identifying the Copyright Owner

In many cases you will be able to quickly identify the copyright owner of the work. For some works, however, locating the copyright owner becomes an involved process. As you research, keep in mind that you may need to contact more than one person to get the necessary permission. For example, if the work you wish to use is the photograph of a person, you should seek permission from the copyright owner of the photograph as well as the person in the photograph if you will use the image of the person for commercial purposes, such as advertising. See the section on Rights of Publicity for more information on this issue.

You will likely find information about the copyright owner by searching several places:

Copyright Notice

First, examine whether the work contains a copyright notice. A copyright notice will have the copyright owner's name, which you can use to search for contact information. Note that if the work was first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. See the section on Works Not Covered By Copyright to learn more about this issue.

Author's Name

Check to see whether the work is attributed to an author. In some cases the author is also the copyright owner, but you should make sure that the author has the authority to exercise the exclusive right you wish to use--i.e. she has not licensed or transferred the exclusive rights, or that the author's creation is not a work-for-hire. If the author is not the copyright owner, she can tell you who commissioned the work or to whom she transferred ownership.

U.S. Copyright Office

Use the Copyright Office's catalog to search copyright records online for information about the copyright owner, or any change in ownership that has been recorded with the Office. The online catalog allows you to search through records dated after January 1, 1978. In order to search for older records, you will need to either visit the Copyright Office and search the Copyright Card Catalog yourself, or pay a fee for a Copyright Office employee to conduct a search for you. See Circular #23 for more details.

Search Engines

If the work is online and you are unable to find an author or contact information for the website owner, use Whois to search domain registrars for the website's registrant name and contact information.

Copyright Collectives

A copyright collective refers to an organization that licenses works on behalf of copyright holders. The most well-known copyright collectives license musical works and distribute the licensing fees to the copyright holders of the musical work. The three copyright collectives are ASCAP, BMI and SESAC. Similarly, you can turn to the Copyright Clearance Center or iCopyright to get licenses for published documents, such as articles from newspapers, magazines, books, journals, etc.

Although these collectives can streamline the request process for you, they often charge fees more suited to a large commercial operation. Consider visiting sites like CC Mixter for its musical works instead. See the discussion below on works covered by open content licenses.

As you conduct your research, refer to the Copyright Office's excellent resource on How to Investigate the Copyright Status of a Work.

2. Requesting Permission

Once you've identified the copyright owner, it is time to actually make your request. Often, an informal approach (by emailing or phoning the copyright owner) will work. If you opt for the informal route, be sure to follow up in writing. In many cases, misunderstandings arise over the scope of permission, and you can avoid such controversies by being explicit about how you wish to use the work.

Alternatively, you can go the formal route and send a letter to the copyright holder. In addition, if you need to contact a copyright collective to request a license, you should follow the procedures specific to their organization.

Your request should include:

• Your name and contact information
• Details identifying the work you wish to use (title, URL, etc.)
• The reason that you wish to use the work - for personal, research, commercial, commentary, criticism, review, or educational purposes
• How you intend to use the work - length of time, number of places (e.g. on your website, and your newsletter), etc.

For example, Jennifer Kyrnin at About.com, Indiana University-Purdue University's Copyright Management Center, and the University of Texas' Office of the General Counsel have sample letters that you can use to create your request.

3. Responses from Copyright Owners

If the copyright owner gives you permission to use her work, you are nearly done. Your last step should be to keep a record of how you found the owner, and a record of the permission that she gave you. As the Copyright Management Center at Indiana University notes: contact information will help you if you ever wish to get permission from the same owner in the future, and a record of the permission will assist you in the event that any future disagreements arise over the scope of the permission.

You should record:

• The name of work and any additional information (e.g., url, etc.)
• Copyright owner and contact information
• Author of work (if different from owner)
• Date you requested permission and a copy of your request
• Date the owner granted you permission, the conditions contained in the permission, and the expiration of permission
• How you actually used the work
• Any fees you paid to the copyright owner

If you cannot locate the copyright owner, or the copyright owner's response includes a large fee or a flat out denial, then your remaining options are:

Fair Use

Regardless of the copyright owner's response, you can still use the work if your use comports with the fair use doctrine. The doctrine of fair use makes it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarly works. Whether or not your use is lawful usually depends upon how different or "transformative" your use is from the original. Unfortunately, there is no clear formula to determine the boundaries of fair use. Refer to the section on fair use for a general discussion of the doctrine.

Link to the work

If the work is online, perhaps you can simply link to the work and still get your point across. If this is a viable option, refer to the section on Linking to Copyrighted Materials for the legal issues that may arise from linking to other online works.

Use Alternative Works

Another option is to find another work altogether. If you choose this route, you may wish to consider using works not covered by copyright or works that are covered by open content licenses, such as a Creative Commons license, so that you do not need to get explicit permission to use them. The following sites contain works covered by open content licenses:

• CC Mixter hosts a collection of music covered by the Creative Commons license. You can download and sample, remix and then share the results with "anyone, anywhere, anytime".
• Flickr allows its users to offer their work under a Creative Commons license. You can browse or search through the Flickr photographs under each type of license.
• Open Photo has a variety of stock photos that are licensed for free commercial and non-commercial use.

You may come across digital works that contain copyright controls, such as digital rights management (DRM) technology or a software copy protection system. As a general matter, you should not circumvent these copyright controls, or you may face civil and criminal penalties under the Digital Millennium Copyright Act (DMCA).

Some copyright owners embed a form of DRM into their digital work in order to control its use and distribution. Typically, copyright controls come in two flavors:

1. access-control measures designed to keep you from accessing the work; and
2. copy-control measures that limit what you can do with the work after you have access (e.g., whether you can copy the work, how many copies can be made, how long you can have possesion of the work, and the like).

The DMCA prohibits circumventing access-control measures. 17 U.S.C. § 1201(a)(1). For example, if you cannot watch a particular copyrighted DVD on your laptop because of an encryption system, the DMCA makes it unlawful for you to bypass this access-control measure. Access-control measures may also be found on eBooks, Internet streaming platforms, and password-protected sections of websites, among other things. Note that there is no ban on the act of circumventing copy-control measures, but it is illegal for anyone to provide you with the technological tools to do so. In any event, some copyright holders merge access-control and copy-control measures in the same DRM system, making it impossible to circumvent copy-controls (which is not prohibited) without circumventing access-controls (which is prohibited).

The DMCA also prohibits trafficking in devices or tools that help other people circumvent access-control and copy-control measures. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. Beware: you can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. Nevertheless, it illustrates how risky it is to host or even link to devices or tools that enable others to break access- and copy-controls.

Fair use is not a defense to a prohibited act of circumvention or trafficking. It does not matter that you or someone else has to circumvent DRM in order to make fair use of a copyrighted work. This is one of the reasons that the DMCA is so controversial.

There are, however, several exemptions built into the DMCA that permit the circumvention of access- and copy-control measures for limited purposes or the limited distribution of circumvention tools in particular circumstances. In addition, the DMCA directs the Librarian of Congress, upon the recommendation of the Register of Copyrights, to publish a list of classes of works to be exempted from the anti-circumvention provisions of the DMCA. The Librarian makes the determination of which classes of works to exempt based on a determination, made pursuant to a complex rule-making process, that fair use of a particular class of works is likely to be adversely affected by the anti-circumvention provisions of the law. The best known current exemption is for "computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network." Memorandum of Librarian of Congress on 1201 Recommendations. This exemption apparently allows cell phone users to "unlock" their phones for use with other carriers, so long as this is the only motivation. The impact of the cell phone companies' user agreements on this exemption is still uncertain. For more on the story, see Wired's Legal or Not, IPhone Hacks Might Spur a Revolution.

The DMCA is complicated, and this page gives just a brief summary of the anti-circumvention and anti-trafficking provisions. For more detailed analysis, see the Chilling Effects FAQ about Anticircumvention and The Internet Law Treatise.

It is a widely held misconception that works on the Internet are not covered by copyright and thus can be used freely. This is not true. Copyright law applies to online material just as it does to offline material, assuming the prerequisites for copyright protection are met. Thus, if you use someone else's work, you could be liable for what is called "copyright infringement." Basically, copyright infringement exists if you exercise one or more of the exclusive rights held by a copyright owner. A copyright owner enjoys the following exclusive rights:

• to reproduce the work in copies
• to prepare derivative works based upon the work
• to distribute copies of the work to the public
• to perform the work
• to display the copyrighted work
• and, in the case of sound recordings, to perform the work publicly by means of a digital audio transmission

See Rights Granted Under Copyright for more discussion.

In order to bring a successful claim of copyright infringement in the context of copying on a blog or website, the plaintiff must generally prove:

1. That she is the owner of a valid copyright in the work or has the legal authority to bring a lawsuit;
2. That the defendant actually copied the copyrighted work, either by direct evidence of the copying or evidence that shows: (a) the defendant had access to the original work and the defendant's work is substantially similar to the copyrighted work, or (b) the defendant's work has a striking similarity to the copyrighted work; and
3. The copied sections of the work are protected by copyright (i.e. not merely copying facts from the copyrighted work)

If the defendant is found liable for copyright infringement, the copyright holder will be entitled to recover his or her actual damages (e.g., lost profits) or, if certain conditions are met, statutory damages between $750 to $30,000 per infringement.  If the plaintiff can prove the infringement was willful, the statutory damages may be as high as $150,000 per infringement. 

Defenses

There are three common defenses available to defendants who are faced with a copyright infringement claim:

• The work used is not covered by copyright (i.e. characterize the work as being factual only, without any expressive element).


• The defendant independently created the work herself. As discussed above, any claim of infringement must involve the defendant's use of an unauthorized copy of the plaintiff's work. Thus, infringement cannot occur in the absence of the defendant's copying the plaintiff's work. Additionally, no provision of copyright law bars another author from independently creating a work that is remarkably similar to another.


• The use is a fair use. The doctrine of fair use is the third, and most oft-cited, defense. The courts and Congress adopted the fair use doctrine to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you. Refer to our section on fair use for a more in-depth discussion on the doctrine.

Note that the infringing use of a copyrighted work cannot be cured by attribution (i.e. citing the copyrighted work). While citing to the original source is always a good idea, attribution will not protect you from a claim of copyright infringement.

Copyright v. Plagiarism

Plagiarism is the act of using another's work and passing it off as your own. While such a use could open you up to a copyright infringement claim, there is no legal liability associated with the act of plagiarism.

Nevertheless, it is a good idea to avoid plagiarism. The best way to avoid plagiarism is to adequately cite your work. Depending on the nature of your online work, your citations can be informal in style, or adhere to the more formal citation conventions. See the University of Iowa's Guide to Citation Style Guides, and Yale College's guide to citing blogs for more information.

Since plagiarism and copyright infringement are similar concepts, a few examples may be helpful:

• If an author publishes a poem on his blog in which he substantially copies from Dante's Inferno but passes off the words as his own, he has committed plagiarism. However, the author has not committed copyright infringement because Dante's work is in the public domain.
• In contrast, if a website owner publishes a compilation of contemporary short stories on her website without the permission of the original authors, she would be liable for copyright infringement, even if the compilation properly notes the original authors and thus avoids plagiarism.
• Finally, if a journalist uses content from yesterday's daily newspaper as his own original article in a weekly online magazine, the journalist has committed both plagiarism and copyright infringement.

If you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law. Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims under the Digital Millennium Copyright Act (DMCA), as long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing.  This page explains how this important law works.

Section 512 of the DMCA contains what are called the "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright-infringing material from other online sources, as long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing. Section 512 has a somewhat confusing structure; if you are interested in navigating the language of the statute, this paper from Fenwick & West LLP attempts to lay out the terms of section 512 in a more logical fashion.

You are not legally required to comply with the safe harbor provisions of section 512, but doing so may help you avoid copyright infringement liability. The sections below address those provisions of section 512 that may apply to you and discuss what you need to do in order to take advantage of the safe harbor provisions.

Storing and Linking to Copyrighted Content: Sections 512(c) and (d)

There are two safe-harbor provisions that potentially apply to your online publishing activities.

The first safe-harbor provision relates to materials posted to your blog or website at the direction of a user. This could include a file (e.g., a photograph, a film clip, an audio file) that a user posts to a comment section on your site or to a forum thread. (There are many other potential examples, the important thing is that the material is posted by another person, not you). This safe-harbor provision is found in section 512(c), and it states that, as the administrator of a website or other service, you will not be held liable for money damages for infringing content posted "at the direction of a user," as long as you

• do not have actual knowledge that there is infringing content on your servers, or know any surrounding facts that would make the infringing use apparent;
• do not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity; and
• act expeditiously to remove or disable access to the infringing material upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement (more below).

The second safe-harbor provision relates to links you post to other online material located elsewhere. This safe-harbor provision is found in section 512(d), and it states that an online service provider will not be held liable for money damages "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." (emphasis added). If you linked to material without knowing that it infringed copyright, the language of this section appears to relieve you of liability, as long as you

• do not have actual knowledge that the material you linked to is infringing, or know any surrounding facts that would make the infringement apparent;
• do not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity; and
• act expeditiously to remove or disable access to the infringing material (such as by taking away the link) upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement (more below).

These safe harbor provisions could be valuable protections for you as a website operator, but in order to take advantage of them, you have to meet a few further administrative requirements.

Note: the existence of the safe-harbor provisions does not imply that you will be held liable for copyright infringement if you opt not to use the safe harbors. Rather, your liability will depend on the independent principles of direct and secondary infringement. For details, see the Chilling Effects FAQ about Copyright - What constitutes copyright infringement? and its FAQ about DMCA Safe Harbor Provisions - What is third-party liability, also known as secondary liability?

Administrative Requirements for Safe Harbor Protection

There are a few additional administrative steps that you need to take before you can enjoy the benefits of the safe-harbor provisions. These steps seem complicated at first, but in fact do not require a significant amount of effort or cost in order to comply with them. The steps are as follows.

1. Designate a Copyright Agent to Receive DMCA Takedown Notices

The U.S. Copyright Office maintains a list of designated agents to receive notices of claimed copyright infringement. This list enables copyright owners who believe that their work is being infringed to send complaints or "takedown notices" to internet service providers hosting or linking to the disputed material. You need to designate an agent, which can be you or someone else who agrees to do it, in order to take advantage of the DMCA safe-harbor provisions. To do this, you file an Interim Designation with the United States Copyright Office, along with an $105 filing fee.

2. Adopt and Communicate to Users a Copyright Infringement Policy

In order to qualify for the safe harbor protections, you must also publish a statement on your site giving notice to your users of your DMCA agent's contact information and your policies regarding copyright infringement and the consequences of repeated infringing activity. The notice can be a part of the website's terms of use or some other notice displayed prominently on the site. For more on terms of use, see the Terms of Use and Website Privacy section for details. The statement should explain that you respond expeditiously to notices of claimed copyright infringement andterminate users or account holders who are "repeat infringers." If you have no subscribers or account holders, your policy may state "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user."

You may want to include a statement detailing the proper form for a notice of claimed infringement, which must include:

• a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed copyright;
• identification of the copyrighted work or works claimed to have been infringed;
• identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
• information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address);
• a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and
• a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner.

17 U.S.C. § 512(c)(3)(B) states that if a complaining party does not substantially comply with these requirements, its notice will not serve as "actual notice" for the purpose of Section 512. Your policy statement should also include a statement explaining the procedure for users of your site to make a counter-notification (discussed below).

3. Properly Comply with a Notice of Claimed Infringement When Received

You may from time to time receive a notice of claimed infringement from a copyright owner, alleging that content on your site infringes the holder's copyright. Such a notice must comply with the form outlined above. Once you verify that a copyright notification substantially meets these formal requirements, in order to qualify for the safe harbor, you are required to:

• expeditiously remove or disable access to the material that is claimed to be infringing (there is little guidance on what counts as "expeditious");
• notify your user or subscriber that the material has been removed so that they may file a counter-notice should they wish (you are not required to notify the user before removing the material);
• if proper counter-notice is provided, notify the copyright holder and provide a copy of that counter-notice; and
• if proper counter-notice is provided and if the copyright holder does not file suit within 10 business days, restore the removed material.

For information on the content of a proper counter-notice or if your content has been removed by your service provider as a result of a DMCA takedown notice, see Responding to a DMCA Takedown Notice Targeting Your Content. 

A Warning: Not Every Cease-and-Desist Letter is a DMCA Takedown Notice

The DMCA gets a great deal of attention in discussions of online speech, especially in technical circles. This attention is warranted, and vigorous debate about this controversial provision of the Copyright Act is necessary. But it is important to remember that other legal issues may also affect your online activities. The DMCA safe-harbor provisions apply only to claims of copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims alleging misappropriation of trade secrets, to name just a few of the possibilities. This means that you cannot insulate yourself from liability on one of these other claims simply by "expeditiously removing" the disputed content. In many situations, you may be protected by section 230 of the Communications Decency Act for publishing the statements of your users. See the Primer on Immunity -- and Liability -- For Third-Party Content under Section 230 of the Communications Decency Act for details on this provision.

Website and blog operators get cease-and-desist letters based on non-copyright claims with some frequency. You should not assume that every threatening letter you receive is a DMCA takedown notice -- you need to look at the precise allegations and legal claims made in the letter and evaluate your next steps from there. It is not sufficient, for example, to conclude that a cease-and-desist letter relating to defamation or trade secrets law is somehow "defective" because it has not met the formal requirements for a notice of claimed copyright infringement under section 512. This will only muddle your thinking and could potentially exacerbate a delicate situation. For more on what to do if you receive a cease-and-desist letter, consult the Responding to Correspondence Threatening Legal Action section. For more on the confusion between other kinds of cease-and-desist letters and notices of claimed infringement, see our blog post, Not Every Cease-and-Desist Letter is a DMCA Takedown Notice.

This confusion may also work in reverse. There may be times when you receive a DMCA takedown notice for material that is technically not eligible for safe-harbor treatment, such as material you posted yourself. If it satisfies the complaining person that you take the material down, and you have no serious objection, you might want to do so.

A Specialized Question: What About Embedded Video?

It is becoming more and more common to embed videos from other online sources into an article or post in order to illustrate a point or get a laugh. This raises the question of whether you could be held liable for embedding an infringing video on your website or blog. The technical point to keep in mind is that an embedded video is just a link. So, there is no copy of the video being stored on your server, just the HTML code for the embed. Therefore, you may be able to claim the protection of the safe harbor found in 17 U.S.C. § 512(d), discussed above. For details see our blog post, Embedded Video and Copyright Infringement.

If your hosting service or other online service provider receives a DMCA takedown notice regarding your content, it ordinarily will respond by removing the complained-of material, and it will do this automatically without making any judgment about whether your content actually is infringing. However, the DMCA notice-and-takedown procedures provide you with protection from a wrongful claim of copyright infringement. The DMCA requires your service provider to notify you promptly when it removes any of your content because of a takedown notice, and you have the right to submit a counter-notice asking that the material be put back up. There is no specific time limit for submitting a counter-notice, but you should not delay unreasonably in doing so. If you send a counter-notice, your online service provider is required to replace the disputed content unless the complaining party sues you within fourteen business days of your sending the counter-notice. (Your service provider may replace the disputed material after ten business days if the complaining party has not filed a lawsuit, but it is required to replace it within fourteen business days.)

Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party's copyright. There are two reasons for you to consider this carefully. First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly because it might come back to haunt you. Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner's work in a lawsuit, you should think twice about firing back a counter-notice. That said, copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.

Some common bases for sending a counter-notice are that the complaining party does not own copyright in the work in question -- either because it is not covered by copyright or because someone else owns the copyright to it -- and that your use of the copyrighted work is a fair use. You should be extra careful when relying on a claim of fair use to justify sending a counter-notice. Determining whether something is a fair use often requires a complex, fact-specific analysis, and even lawyers have difficulty predicting what a court will say about fair use ahead of time. If you believe fair use might protect you, you should examine the four fair use factors carefully and consider contacting an intellectual property attorney.

To work effectively, your counter-notice must contain the following items:

• your physical or electronic signature;
• your name, address, and phone number;
• identification of the material and its location before it was removed;
• a statement under penalty of perjury that the material was removed by mistake or misidentification;
• your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the U.S.); and
• your consent to accept service of process from the party who submitted the takedown notice.

17 U.S.C. § 512(g)(3). Chilling Effects has a great counter-notification generator to help you draft a valid counter-notice.

If you are not a U.S. resident, you must consent to the jurisdiction of a U.S. court in your counter-notice. If you never come to the United States and have no assets there, then this may not be a significant concession because a plaintiff would not be able to enforce a judgment against you in the U.S. Nevertheless, a plaintiff might be able to convince a court in your country to enforce a foreign (U.S.) judgment, and this proceeding might not give you the opportunity to make out your case. In any event, sending a counter-notice makes non-U.S. residents give up a powerful argument they would otherwise have -- namely, that a U.S. court does not have the authority to render a judgment against them. For these reasons, non-U.S. residents may not want to send a counter-notice unless they are willing to fight a copyright infringement claim in the U.S.

Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. See 17 U.S.C. § 512(f). So, if you claim in a counter-notice that your content does not infringe the complaining party's copyrighted work while knowing this to be false, then the copyright owner can win damages from you, including court costs and attorneys' fees stemming from your wrongful counter-notice. Note, however, that this provision also works against a person or company sending a wrongful takedown notice. If someone claims in a takedown notice that you are infringing their copyrighted material while knowing this to be false, then you can win damages from them in a lawsuit. In recent years, the targets of wrongful takedowns have fought back and won damages and favorable settlements from individuals and companies sending bogus takedown notices. For instance, in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit. For another example, see Crook v. 10 Zen Monkeys in our legal threats database. Someone who has sent a baseless takedown notice about your content may be more inclined to back off if you remind him or her about section 512(f) of the DMCA, in addition to sending a counter-notice.

Often, the best strategy for dealing with speech you do not like is through more speech, rather than resorting to threats of legal action. In some situations, however, more speech may do little good, such as when someone copies your work and publishes it on another website without permission. For instance, a recent post on MediaShift's Idea Lab blog asks "How Do We Deal With Stolen Content?". In that post, Gail Robinson, the editor-in-chief of Gotham Gazette, relates how the Gazette's technical director has found many sites reprinting the full text of Gazette articles without permission, often using them with little or no attribution and sometimes even making the articles look like original material. This post prompted us to think about strategies for citizen media creators to protect their online work from copyright infringement. The law provides you with several tools for protecting your work, including sending DMCA takedown notices to online service providers that host websites or blogs that copy your work. Despite the potential usefulness of these tools, it is important to use them judiciously to protect your rights without unduly chilling the speech of others.

We cover the basics of copyright law elsewhere in this guide -- see especially What Copyright Covers and Using the Works of Others -- but suffice it to say that copyright protects your articles, posts, photographs, videos, and other works of creative expression from the time that they are fixed in a tangible medium of expression (e.g., from the time you first type your words into your computer or save a photograph or video as a digital file). At the very least, other websites that post your articles or other work without permission are infringing your rights to reproduce (i.e., the right to make a copy) and distribute them. Before taking any action, however, you should consider carefully whether the other site's use of your work could be a fair use. Wholesale copying of your work will usually not be fair use, but selective quoting and paraphrasing may be permissible, especially if it is for purposes of commenting on or criticizing your work. For details, see the Fair Use section in this guide. You should also consider whether you have granted a license to the public to reproduce and distribute the work, such as through a Creative Commons license posted on your site. For details on licensing, see the Copyright Licenses and Transfers section and its subsections.

If you determine that someone is infringing your copyrighted work and that it likely is not a fair use, the most straightforward route is to look for contact information on the offending site or blog and write the person an email stating that the site or blog is infringing your work and asking for it to be taken down. Your email need not be long and complicated; you just need to state the basics facts (i.e., the website is using your copyrighted work without permission) and what you want done about it (i.e., take it down). The Chilling Effects Clearinghouse has thousands of copyright cease-and-desist letters in its database that you can use as models.

If contacting the infringing website operator does not work, you might have better luck with the company that hosts the website or blog. You can use a tool like Who is Hosting This? to help determine the identity of the host. A hosting service or other online service provider has an incentive to comply with a takedown notice because the DMCA safe-harbor provisions give it a defense to copyright liability if, upon receiving such a notice, it expeditiously removes infringing material posted at the direction of its clients. For details, see Protecting Yourself Against Copyright Claims Based on User Content. In order for a takedown notice to be effective, you must send it to the registered copyright agent of the host or other online service provider you want to contact. The U.S. Copyright Office maintains a directory of designated agents, and the provider's website will often list the designated agent in its "Copyright Infringement Policy," "DMCA Policy," or a like posting. In addition, a takedown notice must contain the following items in order to be valid:

• a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed copyright;
• identification of the copyrighted work or works claimed to have been infringed;
• identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
• information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address);
• a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and
• a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner

17 U.S.C. § 512(c)(3)(B). If your takedown notice meets these formal requirements, then the host or other online service provider has to expeditiously remove the complained-of material if it wants to maintain its immunity from copyright liability. After it does so, however, the person whose work has been taken down may send a counter-notice to the service provider. If this happens, the service provider will notify you about the counter-notice. From this point, you have fourteen business days to file a lawsuit and notify the service provider that you have done so, or else the service provider is obligated to put the disputed material back up. See 17 U.S.C. § 512(g)(2).

Note: If both the website operator and the hosting service are outside the United States, then you may not have luck via these routes.

Another strategy you can adopt to help protect your work online is to register your website content with the U.S. Copyright Office. Registration is most valuable, however, only if you would be willing to go through with filing a lawsuit. The good thing about registration is that, if you sue someone for infringement and win, then the court can award you statutory damages (damages that are set by statute, so you don't have to prove how you were actually injured, which can be hard) and attorneys' fees. In a sense, registering your work puts some teeth behind the letter-writing strategies discussed above. If you are interested in this route, please consult the Copyright Registration and Notice section of this guide and Sarah Bird's excellent posts about registering website content, Sample Forms and Strategies for Registering Your Online Content and Why You Should Go to the Trouble to Register Your Copyright When Everyone Tells You That Your Work Is Protected Automatically. Again, let me emphasize that registration really only helps if you are willing to sue, which many are not willing to do.