A recent Association Media & Publishing educational session in Chicago proved that when it comes to copyright law, there's always a lot more to learn—and what you don't know will definitely come back to bite your association.
By Cathy McNamara
THINK YOU KNOW ENOUGH TO PROTECT YOUR ASSOCIATION'S WORKS when it comes to copyright? A recent Association Media & Publishing educational session proved that when it comes to copyright law, there's always a lot more to learn—and what you don't know will definitely come back to bite your association.
Association Media & Publishing's program titled, "Know Your Rights: Copyright, Permissions and Blogs,” was held on March 15, 2010 and sponsored by Texterity. Convening at the Association Forum in Chicago, the event featured two dynamic speakers. Michael Graif, Esq., is chair of the Intellectual Property group at Curtis, Mallet-Prevost, Colt & Mosle LLP in New York City. His practice focuses on licensing, technology transactions, patent and trademark portfolio management and enforcement, and copyright matters.
The second speaker, Srinivasan Varadarajan, Esq., is director of dental practice advocacy at the Academy of General Dentistry (AGD) in Chicago. He primarily assists the AGD and its members with practice and practice policy matters, as well as with contract, antitrust, agency, trademark, and copyright inquiries. He also acts as liaison to the AGD's outside counsel.
The program began with the basics of copyright law. Varadarajan explained that according to law (title 17, U.S. Code), "Copyright is a right obtained automatically upon creation of a work of authorship.” In other words, the copyright in a work immediately becomes the property of the individual who created the work. A work may include written text, images, computer programs, songs, paintings, speeches, and more. Copyright applies to both published and unpublished works, and use of such works without proper permission is unlawful.
Of course, there are certain exemptions to the use of copyrighted materials. Under "fair use,” the law permits uses of copyrighted work for purposes such as news reporting, commentary, criticism, and parody.
How do you go about protecting original work? "You don't need to register your work to retain the copyright,” said Graif, "but it's not a bad idea if you want your work to be legally protected.” Copyright registration offers certain legal benefits including the right to statutory damages if you register in time. Timely copyright registration is also required to file suit for infringement.
Seems simple, right? Unfortunately, it isn't always so cut and dry—and you don't want the question of who owns copyright to become a legal one for your association. The speakers tested the concept of copyright ownership on attendees. They asked: What if your association hires a freelance writer to create an article for your publication? Who owns the copyright? In this case, they explained, it's the freelance writer (unless you have a "work made for hire” or assignment agreement).
What if a staff member (employee) writes an article for his or her association publication? Who owns the copyright? In this case, Graif explained, the article is considered a "work made for hire,” and thus the association owns the copyright to the work, not the staff member.
During the session, one attendee asked, "What if a board member writes an article for your publication? Is that considered a work for hire?” Another attendee asked, "What about member bloggers? Who owns that content?” In both cases, the work belongs to the contributors, not the association--unless you have a signed agreement to the contrary, Graif explained, and thus, attendees learned, copyright law can be confusing.
Myths of Ownership
The speakers discussed the myths of copyright ownership. They explained that just because your association pays for an article, creates the idea for the article, edits an article, or supervises a photo shoot, it doesn't mean that the work belongs to the association.
"Giving credit to the author or compensation—none of this matters in copyright law,” said Graif. "It's all about permission. You need to ask yourself, ‘Do I have the proper permission to use it?'”
How is proper permission obtained? If you want to own the copyright or an exclusive license to it, get it in writing. According to law, Varadarajan explained: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owners of the rights conveyed or such owner's duly authorized agent.” [17 U.S.C. 204 (b)] . Therefore, even for non-exclusive permission to publish or copy a work, get it in writing as evidence of the scope of your permission.
What is the cost of not getting proper permission? Penalties for copyright infringement, said Graif, include injunction and impounding of infringing works, as well as financial compensations for actual damages and attorney's fees.
With copyright law, the seminar proved, there's a lot to learn. If you were unable to attend, here are a few things that you can do to protect your association's original works as well as properly assuming the work of others:
- Learn about copyright. Visit the Copyright Clearance Center online (www.copyright.com).
- Learn about the Digital Millennium Copyright Act (DMCA). The DMCA is a copyright law that criminalizes dissemination of copyrighted works, but also protects online hosts from infringing online content posted by users.
- When it comes to public domain, don't assume anything. "There is no substitute for doing the due diligence yourself,” said Graif.
- Review your association's permission and copyright agreements. Make sure there is a process in place to get agreements signed between the association and its contributors.
- Add a "future media clause” to your agreements. This protects your association if it wants to, for example, publish an "anniversary edition” or "best of” collection sometime in the future.
- If you don't currently have agreements with your bloggers or tweeters, get them. Remember that their blog posts will be attributed to your association as the publisher, so DMCA immunity does not apply.
- Register your association's works with the U.S. Copyright Office. This is simple and easy to do. Don't put it off.
- Get the right legal advice. Streamline your association's copyright protection, permission, and enforcement procedures.
The only problem with this Association Media & Publishing education program on copyright and permissions: It was a half-day seminar, and most attendees acted like they could have gone all day.
Cathy McNamara is director, communications, at the Academy of General Dentistry in Chicago. Association Media & Publishing thanks her for volunteering to cover this program for those members who were unable to attend.