10 things you should know about ... copyright

This short article explains the key points of copyright law - those which should be familiar to every website operator. Website operators need to know about copyright law because copyright materials are their stock-in-trade, and because dealing in copyright materials gives rise to legal risks.

Complaints of copyright infringement involving websites are relatively common; and infringement lawsuits can be ruinous. It therefore pays to be careful. Whatever one may think of the law of copyright, ignorance isn't going to impress a judge.

The article is written from the point of view of English law. However, there is a measure of international harmonization of copyright law, and most of the points made can be validly made in relation to the copyright law of most other jurisdictions.

(1) Copyright v other IP rights

Copyright must be properly distinguished from other kinds of intellectual property (IP) right: patents, trade marks, rights in designs, database rights, and so on. Nothing, but nothing, pains the IP expert more than many journalists' apparent belief that the different kinds of IP right are interchangeable.

(2) Copyright protects "works"

Copyright law protects a diversity of "copyright works". It protects the oil painting, operatic symphony and poetic epic with the same principles and rules as the doodle, the advertising ditty, and the slap-dash legal article.

Although "websites" are not a kind of copyright work, their constituent elements are likely to be protected by copyright. Website text and code may be protected as literary works; photographs and other website artworks may be protected as artistic works; website music tracks may be protected both as musical works and through sound recording copyright. A single video clip can accommodate a profusion of different rights.

Simply cataloguing the different copyrights subsisting in a website can be a major undertaking.

(3) The de minimis principle

Copyright isn't concerned with very little things. It does not protect so-called de minimis works, the classic examples of which are titles (such as The Da Vinci Code) and newspaper headlines (such as Small earthquake in Chile, not many killed); nor does copyright prevent "insubstantial copying" from a work which is protected by copyright.

Unfortunately it is often difficult to decide whether a work is really de minimis, or an example of copying insubstantial. Hence the practice, prevalent in some of our cultural industries, of demanding express permission for the least act of copying.

(This is not to say that it's always OK to borrow others' titles etc. Titles may, for example, be protected under the law of trade marks or passing off.)

(4) Ideas and expressions

It is sometimes said that there is no copyright in an idea. This is not entirely accurate, and is more than a little misleading. Although there is no copyright in an idea as such - i.e. an idea which has not been fixed in the form of a copyright work - that is not to say that copyright does not protect the ideas which inhere in copyright works: it does, providing the ideas are of the right kind and are not too general. For example, copyright in a story could be infringed by a person copying the plot of that story, notwithstanding that the copyist takes care to avoid lifting a single phrase from the original story. Note that the ideas underlying a web design,
no matter how specific, are probably of the wrong sort to attract the protection of the law of copyright.

(5) To credit or not to credit?

Do you have a right to be identified as the author on copies of your work? Not necessarily.

This right, the right of paternity, is one of the principal moral rights which arise in relation to copyright works. Moral rights are conceptually distinct from copyright itself. In English law (unusually) the paternity right only applies where it has been asserted by the author. So, if you licence others to use your artwork, but don't assert the right of paternity, they may use it without crediting you!

Some of the statutory defences to a claim of copyright infringement, including the defences of "fair dealing for the purposes of research and private study" and "fair dealing for the purposes of criticism and review", usually only apply where an author has been credited in an appropriate way.

(6) Copyright registration services

Try Googling "copyright registration". You'll find a plethora of different UK companies offering to help protect your works. All you have to do is submit your magnum opus and pay their fees; all they have to do is not lose your submission. Nice work.

The alleged purpose of these services is to provide evidence in the event of a court case. However, the only conceivable evidence such a company could offer is that a work was created before the time of submission. Time of creation is only occasionally an issue in copyright infringement lawsuits. We aren't aware of a single copyright case which has even involved the evidence of such a company, let alone turned upon such evidence. So, don't waste your money.

Note that the position regarding US copyright law is different. Registration with the US Copyright Office, although not necessary, has a number of advantages. See www.copyright.gov for details.

(7) The importance of ©

The Copyright symbol matters little nowadays: in most jurisdictions copyright subsists in qualifying works, irrespective of what symbols they wear. The use of the symbol can be a pre-condition to copyright protection under the Universal Copyright Convention in countries which are not signed up to the Berne Convention - but all the major jurisdictions are now signed up to the Berne Convention.

The use of the symbol does however have the effect of reminding people about copyright protection. If accompanied by the name of the copyright owner, it lets users know who owns the copyright - and from whom a licence should be taken. It also looks rather neat and professional.

(8) When must a licence be written?

In English law, permissions to use copyright works (also known as licences) do NOT need to be in writing. For instance, when you make a website available to the world, you grant an implied licence to internet users to copy that website for the purpose of viewing it on a web browser. However, the exact scope of implied and unwritten licences may be unclear.

There is one exception to the above rule: statutory "exclusive" licences must be in writing signed by or on behalf of the copyright owner, as must assignments (transfers) of copyright ownership.

(9) Acts of infringement

Copyright infringement isn't just about copying. There are lots of different ways to infringe someone's copyright, and many of them don't directly involve copying. For instance, selling over your website CDs that someone else ripped may be copyright infringement. Again, making an adaptation of a copyright work, for instance recreating a motion picture as a cartoon strip, can infringe copyright, even if there is no literal copying.

(10) Copyright crimes

Contrary to the impression given by certain content industry propaganda, copyright infringement isn't usually a criminal offence. Broadly speaking, in the UK, copyright infringement is only a crime if it is done deliberately in the course of a business or on a significant scale. So, downloading an infringing track for personal use may be copyright infringement, but it isn't usually a crime.

This is a revised version of an article was originally published on www.website-law.co.uk in November 2006.

Comments

Three sentences could in principle amount to a substantial part of a work, and their copying might therefore amount to an infringement. On the othe hand, if the sentences are unoriginal, hackneyed, banal or mundane, they might not be sufficiently substantial to warrant protection. As so often in these cases, it depends upon the a particulars.

What has the copyright owner demanded that you do? Was the notice sent by the copyright owner, or their lawyers?

In the process of creating a website for myself as a freelance brand consultant. Potential clients need some information and back ground about me, so website acts as a bio/portfolio. On the website, I will include some brand "stories" which are my personal summaries of brand experience over the years. They includes references to companies I have worked with such as Unilever, Nivea & Nike. I want to use images, or logos or advertisements from those companies to compliment the text I have written.

Obviously, I do not own copy right for these images as the companies do! But given I am commenting/reporting on historical events, that I was involved with whilst I worked at ad agencies, does this application of images come under "fair usage or not?"

Thanks Tracey

Hi, I have found a commercial website using two of my images. I have challenged the website owner, who has referred me to the website builder. Who should I be chasing?

Thank you.

Depending upon the specific circumstances, one or both may be liable.

If both are potentially liable, then you could of course pursue both. An alternative approach would be to go after the person that has: (a) the most assets; and/or (b) the most accessible assets (e.g. assets in your jursidiction).

Thank you.

Hi, I want to download some old photos from a website. The site says to ask for permission as these are copyrighted. I thought photographs this old could not be under a copyright any more? The website with the photos is closed at the moment, so permission cannot be asked for.

I'm not particularly familiar with the history of photographic copyright in the UK, let alone internationally. That said, photographs have attracted protection under English law since the mid-19th century, and simply because a work is very old doesn't necessarily mean that copyright has expired.

It is a difficult undertaking to establish whether copyright in an historic work still subsists. In order to do so, you first need to know the history of the work (who created it? where was it created? when was it created? has it been published? if so, where and when has it been published?).

When you have all the factual history to hand, the really hard work starts. You can't just apply modern legislation to the work.  Instead, you need to trace the effects of the special statutory provisions in each piece of copyright legislation that deal with copyright works pre-dating the legislation. Many years ago I spent the best part of a day doing this in the Law Society library in respect of a single work. Because of this complexity, establishing the copyright status of a historic work in even a single jurisdiction is not at all easy.

There might be some special rule in relation to photographic copyrights that makes the answer plain - but if there is, I don't know it.

Hi, I used to publish industry-related news to my company website from various sources (same to same, without any or very little amendment).

I always mentioned the source of the news (name of the organization or website) at the end of the news.

Recently the Press Association (PA) fined us for using their copyright materials. I published that news from a certain source, which I mentioned at the bottom of the news.

Now my question is - did I really break copyright law? Or, has the PA misunderstand the issue?

It would be really helpful for me if you please answer my question.

Thank you.

Whilst I cannot be 100% sure without knowing all the details, it is likely that you have infringed copyright in the news articles that you copied.

So, according to law, even I mention the source, I can't publish any news without the copyright. Have I got it right?

What about if I change the words and then publish any news? Will it still be catagorised as infringing copyright? 

Thank you for your cooperation.

You can publish news - you just can't reproduce the words written by others to communicate that news.

In relation to short factual written works such as news stories, rewriting may solve the problem - but it does depend how much is changed. A rough-and-ready test for this is to compare the original piece and the rewritten pieces. If it is apparent to reader that the second is derived from the first, then you may still be in copyright infringement territory.

Thank you for your advice

I created a website for my employer in my own time and at my own home. It was not part of my contract of employment to do so, I offered as their previous website had been removed and I have the skill to build websites as this is a hobby of mine. This is backed up by 3 other people being employed during my period of employment who all had the same job title and contract of employment yet none of them did any website work whatsoever so it obviously did not form part of my contract of employment therefore I believe it cannot be considered to be part of my normal employment.

I received no payment for this work (approx 30-40 hours) which involved creating the design, writing all the code in html, css and javascript and incorporating scripts from other sources whose copyright was included in the code. I included my copyright notice in the coding of every page and also on every displayed page. My employer checked the website at various times during my development of the site so must have seen the copyright notice on the displayed pages.

Updates, textual changes and amendments were undertaken at my place of work in my normal working hours but these were "cosmetic" in that all the code to create the design and functionality of the site was done outside of normal hours at my home address.

My understanding of UK copyright law (Copyright, Design and Patents Act 1988 and amendments) is that, as this was not within my contract of employment and no payment was made for this work, that I own the copyright to the code though not the text as this was put together with my employer, nor images as they were the property of my employer being taken from work which was produced by the company.

I have now left that employment of my own volition and my now ex-employer is claiming ownership of the website.

Can anyone advise on who is right in this matter please?

The test under the CDPA is not whether the work was within a contract of employment, but whether the work "is made by an employee in the course of his employment" (Section 11(2)).

It's not possible to give a definitive answer to your question without more information, but assuming (i) the main part of the work was done at home in your own time, and (ii) your employment contract doesn't say anything to the contrary, it is certainly arguable that you would be the owner of copyright in the materials that you produced.

However, even if you are the owner, that doesn't necessarily determine the practical issues. It is likely that you have granted a licence of some description to your former employer. The terms of that licence are inevitably going to be uncertain, but it is those terms that will probably determine the practical issues. For instance:

  • Does your ex-employer have a right to update the website, to use the code for other websites, to redistribute the website?
  • Can you terminate the licence to the employer?
  • Do you have a right to reuse the website code or supply it to others?

You are unlikely to get a very clear answer to these questions, short of asking a judge.

Thank you for the very useful information. One more on board games - to assert copyright on design elements (in conjunction with finished rules), is a full and perfect 3D prototype model necessary, including all parts, fully finished professional designs etc, or is it sufficient to use a printed 2D mock up, with themes, colour schemes and clear identity but still a bit rough round the edges? Thanks! H

Copyright may well subsist in mock-ups, but it does depend upon the exact nature of the material in question. For example, mock-up cover art is likely to be protected as a graphic work if the images are a little below production quality. On the other hand, a rough hand drawing of a board design might well not be sufficiently "original" (in the special copyright sense) to attract protection. See:

http://www.ipo.gov.uk/types/copy/c-applies/c-original.htm

I am a song lyricist and collaborate with several composers to create complete songs. Occasionally those collaborations don't bear fruit and either I find a new collaborator or park the lyrics with a view to working on them another day.

My work, therefore, often passes through two or three pairs of hands. I am conscious that makes me vulnerable to plagiarism/theft.

I use a copyright protection service, of which your blog is somewhat derisory.  What do you recommend I do to protect my work?

Hi,

I have recently started making bespoke handmade 3d letters that are decorated in Lego or comics. Obviously I own the Lego and comics. I'd like to know If I am breaking any copyright laws by selling these letters? I have asked to join a selling page and I've been told I can't sell them because of copyright. 

Thanks

... exactly what you mean by "3d letters that are decorated in Lego or comics".  Are you able to send me a link to an image of one?

Good Evening,

I need clarification and if anyone could help me, it may save me a lot of hassle, wasted time designing and/or legal action.

I am starting my own eBay store up, seperate to my own personal account. In this store I am planning on selling t-shirts, hoodies and other garments all with printed vinyl drawings I have hand drawn myself.

Some of these are characters from Marvel films and TV shows - ie Iron Man's head, the Hulk's head, The IT Crowd - and sayings from the films / shows.

 will not be advertising these as "Official Merchandise"; and as previously stated these are my own creations I have hand drawn, printed off on a vinyl cutter and heat pressed to garments.

Am I opening myself up for law suits against me? Does my own creation itself become my own copyright regardless of if it's a real character created by someone else?

Am I being naive in thinking I'm perfectly fine? I would like to know that Disney isn't going to sue me for trying to make a few pounds to pay for my masters degree.

I am a talented drawer and graphic designer and I consider anything I create my intellectual property regardless of if its trade-marked "officially".

Can anyone help me here before I possibly make a mistake that I don't believe I am doing.

Many thanks in advance for any replies.

Best regards,

Robert.

Hi Robert. There is a real risk here of trade mark infringement, passing-off and/or copyright infringement. Brand owners do regularly pursue small businesses that infringe their IPR. The extent of the risk will vary from product to product, and I suggest you seek proper legal advice before going any further with this.

Hi Alasdair

This is one of the most helpful sites I have found on this issue. So, thanks!

Like Robert I would like to sell a range of merchadise with images from 1970s and 1980s UK children's comics on them. The difference is that I want to use the actual images from the comics. Does the 70 year copyright law apply to images in comics or is it 25 years (which would then open up the prospect of using images from the 70s and 80s)? What if I did not reproduce the images but actually cut them from the original publication and used them to make unique one off items like key rings or cards?

Under the 1988 Act, the special 25 year protection period in respect of "articles" that are made by an "industrial process" will not affect graphic works published in comics, as they are primarily of a literary/artistic character. See:

http://www.legislation.gov.uk/uksi/1989/1070/made

To be sure of the nature of the protection given to any pre-1988 Act work, you need to check the transitional provisions in that Act, and also the position under the 1956 Act.

It does seem likely, however, that you would need permission for the uses you propose. Have you tried getting permission?

Hi Alasdair

Thanks for your response. Not what I was hoping to hear but important to know all the same. I have not sought permission to use the images from their owners so that is something I will look at and work out if it is practical or not. On the cutting up of the actual comics themselves and using them as the primary materials this does seem to be more of a grey area. I have been several stalls at craft fairs selling items featuring Marvel characters and on closer inspection I see that these are made from the original frames from the stories in the comics. This approach has the additional attraction of making each item unique. Do you think this is a safe option or would you still advise caution and seeking permission even for this approach?

Whether this amounts to infringement will, I think, depend upon exactly what is being done.  Eg selling a framed image that has been cut from a comic wouldn't usually be an infringement; whereas some uses (eg a collage incorporating cuttings from a comic) could amount to an adaptation. See:

http://www.legislation.gov.uk/ukpga/1988/48/section/21

Another possibiility is that the moral right of "integrity" could be engaged.

In principle there could also be trade mark / passing off issues, although again it depends.

Hi,

I am looking to produce ebook guides (with PDF counterparts) for how to make replicas of weapons/items from a range of video games.  As I will be creating all the templates from scratch (based on the dimensions/colours of the original in-game items) and the ebook/PDF won't contain of the original game art, would this infringe copyright/trademarks of the original artwork/game companies?

Thank you for any help you can offer.

I've translated a French novel into English which is still subject to copyright in most jurisdictions save that of Canada (thanks to a different copyright duration beyond the author's death). Presumably I am free to print and publish in Canada.

How is "publish" defined? If I sold copies on a Canadian internet address to individuals living in the UK would I be in breach of UK copyright law? What if copies drifted across the border into the US, would I similarly be in breach?

Peter

Hi there - a dilema for you. I employ Shutterstock to sell my vector artwork under 2 types of license - standard and commercial.  I have now discovered that some vector artwork of mine has been obtained without a commercial license in China. The Chinese manufacturer is producing my artwork on stickers and selling this globally. 3 UK companies are selling my designs to wholesalers in sticker packs each with their own barcode, header card and company logos on them. I have challenged the 3 UK companies with a standard Cease & Desist letter asking them to stop selling them and if they want a commercial license to contact me (we are talking pennies here not a get rich quick scheme). So far only 1 has responded claiming they have a right to sell them and are trying to fob me of by telling me to sue the manufacturer in China and bog off. What I am wanting is to stop the sale of these goods with my design and nothing else, as trying to sue a chinese company is futile. I appreciate that the UK companies are classed as 'Secondary' Infringers and I cannot claim damages, but now that they are aware this is copyright infringement (proved), if they still continue to sell, can I legally get them to stop selling these items without it costing me substantial fees which is not a viable option for me?

Hi, I'm thinking of selling items/artwork which use famous quotes or sayings. If it is a short quote, i.e. phrase or sentance not an enitre article and the author is referenced can I use it without a licence? I hope you can help, I've looked at various articles published on copyright but they don't reference artwork quotes - more quotes used in articles which is not the same usage. 

The courts have sometimes in the past applied treated very short "works" (notably, newspaper headlines) as protected by copyright, so I guess there is some risk here. See:

http://www.harbottle.com/copyright-can-subsist-in-a-newspaper-headline-t...

In many cases, however, quotes may be unprotected as de minimis.

Also, as it's hard to see how someone could suffer any loss (unlike eg records, you can't sell quotes) the risk is probably low (but still present).

Hi there. I worked for a client for a few years. I made a marketing and SEO strategy for them and accordingly rebranded their company and redesigned their website in the way we could have cloned them for SEO purpose.

We wrote in the foorter "Website by" me having discussed that before with the client. We put these websites in our portfolio.

Now we do not work anymore with them and as soon as they have another web designer, they manage to replace the writing adding the new web designer name even when he didn't made the project nor the design of the concept and websites.

We pointed out that they are damaging us because the website are currently on our portfolio and morally it's not right what they are saying.

We asked them to change the writing into "Managed by" the new designed instead but they say it's their right to do as they please.

Is there anything we can do? Is it right that the new company is displaying the website as made by them?

thanks

Possible bases of legal argument that spring to mind here are:

  • the moral right of paternity;
  • defamation or the tort of malicious falsehood; and
  • your contract with the client (did you have anything in writing?).

However, because of the costs of litigation, it is rarely worth taking this sort of dispute to court.

I would like to know more on the use of a title. We are a Inc. that houses the "the birthplace of little league" - the field from which little league started. Are we entitled to copyright the title "the birthplace of little league"?

That sounds like a question for a US lawyer, although the question may really be: can you get registered trade mark protection for the phrase?

Hi

My work has already gone to print (safety manuals). I have not put a copyright symbol on the documents because copyright was an afterthought.  Am I still able to protect my work without the © symbol and will a copyright certificate be enough?

Also how can I ensure that the copyright service is legitimate?

Many thanks in advance

Karen 

What do you mean by "copyright certificate" and "copyright service"?

Hi,

I'm writing a teen read/young adult novel. I wish to use song lyrics to help set the time and place. I'm literally talking about the occasional line from maybe 10 songs across the whole book.

I also may use quotes from famous people - Gandhi, Mandela and maybe some current politicians and newspaper headlines. 

From my reading, I think this all falls into fair use - what do you think?

Are you concerned with the US legal doctrine of fair use, or the English law equivalent, fair dealing - or the copyright law of some other country?

To put the question another way: where do you propose to publish?

Hi there,

I am thinking of starting my own website which in effect be a sector job board competing against another sector specific job board. What makes my idea different is that it is only focusing on 2-4 types of professions within the sector whereas the established job board advertises jobs across whole sector. Is setting up this business got any potential legal implications.

The reason I ask is because I am considering using the 1 word (which actually defines the sector) in my business name- the obvious example I can use is 'pound world' and 'pound land', obviously pound is a word that has been used many a times, so similarly I am thinking of using 1 similar word but the rest of the business name will be different.

What, if any are the legal implications of this?

Usually, the use of words that describe generic sectors, products or services will not trespass upon anyone's trade mark rights.

In English law, descriptive trade marks are not usually registrable. See for example s3(1) of the Trade Marks Act 1994, which excludes from protection "trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services".

As regards the English law tort of passing off, this requires a misrepresentation and resulting confusion, which wouldn't usually be constituted by the use of a generic descriptive term.

In other words, you can't get into legal trouble for using the word "bananas" in relation to the sale and supply of bananas.

If you are however concerned about this point, I suggest you take proper legal advice. It is not possible to be sure whether there is a material risk without looking at the specific trade marks in question, including examining registration and usage.

I am considering publishing a book which would contain user reviews of products on retailers' websites. Are there any copyright issues here? I imagine that the only candidates for copyright are the reviewer or the retailer.

In the vast majority of cases, and providing the review is reasonably substantial and "original", the user will be the first copyright owner, although the retailer should have some kind of licence from the user. Depending upon the terms of the licence, the retailer could also have rights to enforce the copyright. In any case, you should get permission.

I want to compile questions asked in different examination. But I want it to be specific to a certain book. Means can I write on my book that questions are based on this specific book. All the questions would be original and are facts (general knowledge) but specific to a book.

What all problems can I land into.

I want to publish in india and as india has borrowed a lot from English law so I thought you might help.

The most obvious potential issue here is copyright infringement, but there may be others.

You should ask an Indian lawyer about this - although Indian law has been heavily influenced by English law in the past, there are very likely relevant differences.

After signing up to a forum and posting my copyright articles, photos, and graphics. Can the forum company take ownership of them?, merely by stating that it was in the "browsewrap" agreement?

As several courts have noted, assented is even more attenuated in browsewrap agreements than in the clickwrap or shrinkwrap contexts because "user[s] can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists." Be In, Inc. v. Google Inc., No. 12-cv-03373-LHK, 2013 WL 5568706, at *6 (N.D. Cal. Oct. 9, 2013). As a result, courts generally require users have actual or constructive knowledge of a website's terms and conditions before enforcing browsewrap agreements. Nguyen, 763 F.3d at 1176; Van Tassell v. United Mktg. Grp., LLC, 795 F. Supp. 2d 770, 790 (N.D. Ill. 2011); Sw. Airlines Co. v. BoardFirst, LLC, No. 06-CV-0891-B, 2007 WL 4823761, at *4 (N.D. Tex. Sept. 12, 2007); see also Lemley, Terms, supra at 477.

I'm not sure of the position under US law.

Under English law, there is an IPR point in addition to the contractual acceptance point. A legal (vs equitable) assignment of copyright needs to be in writing and signed by or on behalf of the assignor. A browsewrap (as defined here) would not fulfil the signature requirement.

I'm looking at possibly copyrighting a surname so this name can not be used by anyone else and want to know the legal rights I have. There are individuals that are claiming this surname that I would rather not be using at all and want this applied so I can sue or have it removed so they go by a different surname other than the family name.

Generally, and certainly under English law, surnames cannot be protected using copyright. If a surname is being used in the course of trade, it may however be protected to some extent by a registered or unregistered trade mark.

Hi, We are planning to do a public awareness campaign ,and we have our own concept to do this ... and we don't want others to use this before we apply this ... can we apply for copyright and protect our concept?

Concepts in general are not protected by copyright, although materials that you generate for the campaign may be protected by copyright.

Under English law, there is no need to register to gain copyright protection.

If you need to disclose the concept to others, you may wish to do so under an NDA, which could protect the concept as confidential informaiton.

Pages

Add new comment

Filtered HTML

Plain text

Contact details

SEQ Legal LLP
Howbery Park, Wallingford
Oxfordshire OX10 8BA, UK
Tel: +44(0)1491 821123

English law

Unless otherwise stated, the information and resources on this website relate to English law.

Web cookies

By using our website, you agree to our use of web cookies. See our privacy policy for details.

Our ecommerce websites

docular.net

www.website-contracts.co.uk

www.contractology.com

Copyright © 2007-2017 SEQ Legal LLP.