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Holly M. McGlashan, manager of instructional services at the CF Levy Center, and CF Xcel-It Placement Specialist Todd Reiland both stand ready to answer questions for visitors at the table for the College of Central Florida. Please see the complete story and other photos on the BUSINESS PAGE.
Photo by Jeff M. Hardison © Aug. 27, 2015 @ 11:07 a.m.
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Writers learn
about copyright
in the digital age

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Bay Area Professional Writers Guild President Steve Traiman conducts some pre-meeting work. He is holding pamphlets that list the 30-plus members of the BAPWG who are available for a wide range of services.

Story, Photos and Video

By Jeff M. Hardison © Aug. 26, 2015 @ 3:37 p.m.
(vetted by attorney David R. Ellis)
     LARGO -- Members and guests of the Bay Area Professional Writers Guild learned about copyrights in the digital age on Monday afternoon (Aug. 24) as attorney David R. Ellis of Largo spoke during the monthly BAPWG meeting, held in the community room of Panera Bread on the corner of Starkey and Bryan Dairy Road.

     Just as Pinellas County changed from a time when there were dairies in the county, so too have the federal laws governing copyrights.
     Ellis provided an overview of the history of the law as well as the application of current law to modern publishing issues.
     Phyllis Johnson, a longtime BAPWG member, introduced the guest speaker. BAPWG President Steve Traiman led the meeting, including dealing with club business.

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Attorney David R. Ellis, who specializes in law related to trademarks and copyrights, corporations and businesses, computers and cyberlaw, entertainment and franchising, and patents and other matters of law, speaks to the members and guests of the Bay Area Professional Writers Guild on Monday (Aug. 24). He wore a tie with images reflexive of some work by the artist Salvadore Dali (May 11, 1904 - Jan. 23, 1989) to demonstrate how some art is protected from people -- other than the artist and his or her assigns -- profiting. Simply saying a person's work is theirs while selling or publicly displaying that work is not enough. While it shows a lack of intent to commit plagiarism, taking copyrighted material without proper permission is against federal law.

     Copyright law, Ellis explained, falls under the jurisdiction of the federal government. States cannot legally enact copyright laws, he said.
     In 1789, the U.S. Constitution came into effect, Ellis said. This document gave Congress the power to create laws benefitting inventors and writers, he continued.
     These laws give writers the exclusive rights to make copies of their works, to distribute those pieces, to sell their works and for the writers to have the power to assign others who can distribute and/or sell those creations.
     Other rights that are exclusive to the owner of the work are the right to perform it publicly or to display it publicly, Ellis said.
     This protection is for a limited amount of time, Ellis added.
     The right to exclusively use the works a writer created, however, are limited not only by time, but even by who can use it beyond the author.
     In 1790, Congress adopted the first copyright law and it noted the protection for books, maps and charts.
     “It didn’t say anything about musical recordings or streaming video,” Ellis continued, “or computer programs, or photographs, or music of any sort. It was very, very limited.”
     In the following 225 years or so, Congress and the United States Supreme Court and lower federal courts, brought these other kinds of works under the copyright protection law, Ellis said.


In this video, attorney David R. Ellis of Largo explains how a video or sound recording may become copyrighted. An original work that is a fixed and tangible means of expression is among those things which may be copyright protected.

     Under the 1976 Act, any original work that is in any fixed and tangible medium of expression, Ellis said, is protected by copyright law. What used to be film is now on a digital card, he said.
     If a person was transcribing his speech, Ellis said as an example that would equal “fixation.” A tape recording can be considered fixation as well.
     The requirement for an original work, he explained, does not need to be some high level of a creation. As long as the creator is the person who made the original work, that meets the standard set for that criterion.
     Even “doodling” can be copyrighted, he explained.
     “In fact, as you create a work, it is automatically copyrighted,” Ellis said.
     For the authors in the audience who have finished a chapter of a future work, it is automatically copyrighted even before the novel is finished. The owner of a work is the creator. If it is a work created by a partnership, then the partners all own it.
     A person who writes for a newspaper, though, as a regular staff writer surrenders his or her ownership to the newspaper (or magazine, TV, radio station, etc.) because they created it while an employee of the company. They created the work in a “for hire” situation.
     A freelancer, or independent contractor, however owns his or her own work, unless they sign a paper surrendering their right to the publisher or broadcast station.
     Enforcement of a copyright is another matter.  A copyright cannot be enforced until it is registered.
     Although registration of a copyright is not required to have a valid copyright, it confers certain advantages. One of them is that the owner of the copyright will have a certificate showing the date that he or she was granted a copyright for their work, Ellis said.
      It provides evidence that a work existed at a particular time.
      “Also if you do decide to go to court to contest a person infringing on your copyright, you can’t do it until you register the copyright,” Ellis said. “Copyright registration can take three to five months. It can take a year. I have one that is pending well over a year and a half now.”
      If a person does go to court in a copyright infringement action, Ellis said, then he or she has certain rights. They can obtain an injunction, which will lead to a cease and desist order by the court to stop the other party from infringing on their copyright.
     The person who files the action and wins has a potential to be awarded any profit made by the offending party on the copyright material. The injured party may also recover actual losses suffered from the infringing party’s violating copyright laws.
      And the party who files and wins is entitled to have the losing offender pay reasonable attorney’s fees and statutory damages if the party has registered the copyright before the infringement or within 90 days of first publication. This means the victim may be awarded from $750 to $30,000 for each work infringed at the discretion of the court, and up to $150,000 per work if the infringement is deemed willful.
      “It is worthwhile to register for copyright if you have something that is of commercial value,” Ellis said.
      Literary works that are copyrighted are poems, fiction, non-fiction and the like. Interestingly, computer programs count as literary works that are protected by copyright, he said, because they are written out in code.
     And so, a computer program would be listed as a literary work if its writer was to register it for copyright protection, Ellis said.
     Other categories for copyright, beyond literary, include musical; dramatic; pantomimes and choreography; pictorial, graphic and sculptural; sound recordings; and architectural, Ellis said. Applying for most copyrights today can be accomplished via the Internet, he added.
     Posting something on the Internet, Ellis said, does not surrender the copyright.
     “If you post a video or anything,” he said, “you still own the copyright.”
     There is a caveat, he said. If the terms of service for where it was posted on the Internet note that the person posting material on that website surrenders his or her copyright, then the person has given that right up. He noted that the person putting a picture or video on some social media note they are giving a right to post it to the social media, but they are not surrendering the copyright.
     Copying material from one website and posting on the Internet, say on a social media outlet like Facebook, can be a copyright infringement. Posting links back to the original website, Ellis said, is legal. Copying pictures or text that is protected by copyright, and then republishing that material without the permission of the author or photographer is violating that writer’s or photographer’s intellectual property rights. It is theft.
     One limitation on the exclusive use of original material results from the “Fair Use Doctrine.”
     The section of the United States Copyright covering this is Section 107 of the U.S. Code Title 17 in Chapter One.  
     “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
      “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
      “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;  
     “(2) the nature of the copyrighted work;  
     “(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and  
    “(4) the effect of the use upon the potential market for or value of the copyrighted work.  
    “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors,” the law states.
      The government has deemed these certain purposes to be good for society, so that the original works may be copied and shared. Federal judges are the deciders in cases where “Fair Use” is used as a defense of an alleged copyright infringement.
     Copyrights generally last for the life of the author plus 70 years, Ellis said.
     If it is joint authors, it is the end of the life of the last surviving partner – plus 70 years. One way to extend a copyright longer is to write it with a grandchild, Ellis said.
     When it is done as a “work for hire” the copyright lasts 120 years from date of creation, Ellis said, or 95 years from date of publication, whichever comes first.
     For works that were created before 1978, the rules created some mathematics to be used. A work created in 1930 had an original copyright that would last 28 years, he said, because that was the law at the time. Then it could be renewed for another 28 years, he added.
     So 1958 plus 28 equals 1986 as the expiration for the 1930 copyright.
     In the meantime, Congress added another 19 years to take the 1930 copyright to the year 2005.
     Mickey Mouse first appeared in 1928 in the film Steamboat Willie, directed by Ub Iwerks and Walt Disney. Even with a 75-year copyright, the copyright would have been valid only until the year 2003. Congress added another 20 years, to extend that to the film’s copyright to 2023, for instance.
     “And many other works from the 20s are still protected by copyright,” he added, “where they long since would have expired without Congress extending the time limits.”
     This act was passed by the One Hundred Fifth Congress of the United States of America on Jan. 27, 1998, and it was known as the ‘‘Sonny Bono Copyright Term Extension Act."
     It was named to honor the late congressman, who died in a skiing accident. He was a sponsor of the bill in the U.S. House of Representatives. Bono (Feb. 16, 1935 – Jan. 5, 1998) was a recording artist, especially known for duets with Cher.
     Anything published in 1922 or before is now in the public domain, Ellis said. So it is fair game for using. However, if a person made an anthology or revised a work from 1922 and before, and it was later published, then that work may be protected by copyright, Ellis said.
     Ellis cleared up a misconception too. Simply giving attribution is not enough to overcome copyright infringement.
     “You can’t just use other people’s stuff and say it is by them,” Ellis said.
     There are many possible ways to potentially use some material. A copyright may have expired. It may be fair use. The best advice he offers is to hire a copyright attorney to answer complex questions.


 


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Published Aug. 2, 2015 @ 7:27 a.m.

-- Video by Jeff M. Hardison


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