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Legal Corner - Copyright 101
Christina Estes-Werther, League General Counsel
The internet can instantly provide information at our fingertips and we have become accustomed to "sharing" posts, photographs, notes and other links in the realm of
social media. So when you find photographs, videos or other depictions on the internet it can be easy to forget that using someone else's work requires permission
by the author. Before you download a photograph from the internet to use in your PowerPoint presentation or copy a chapter from a book to distribute to others,
it's important to know that using unlicensed materials may lead you into dangerous territory known as copyright infringement.
With increased electronic policing by companies searching for violations of their copyright, this issue is becoming more prevalent for municipalities and related
associations. This article addresses the basics of copyright law and how you can avoid inadvertent copyright violations and costly penalties.
What Is A Copyright?
Copyright is a protection of an author's original work that is expressed in a tangible medium. 17 U.S.C. § 102. If you are the original author of a book, music,
photograph, sculpture, movie, or other tangible medium, you have an exclusive right to duplicate or perform your work, prepare derivative works, distribute copies
of the work, or display the work. 17 U.S.C. § 103. These exclusive rights prohibit duplication of the work by others unless written consent is granted by
the author.
Copyright is not a trademark, which is a symbol or mark that indicates a product's source, or a patent, which is used to protect inventions. Instead, copyright protects
original work, published or unpublished, that is expressed in a concrete form.
Further, copyright law only protects "works," not ideas or processes. This is an important distinction and was recently illustrated in a case at the Ninth Circuit Court
of Appeals involving yoga poses. In Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015), Bikram Choudhury developed a yoga
sequence that was later published into a book containing instructions and drawings of the exercises and he taught this sequence to other yoga teachers in training
courses. When two trainees later offered yoga exercises similar to Choudhury's sequence, he sued alleging copyright infringement. On appeal, the Ninth Circuit held
that the sequence is a process or system of poses and the idea is not protected under copyright law. While the words and photographs in the book were copyrighted
material, the arrangement of motions was a method that was excluded from protection. This decision reinforces the purpose of the copyright law, which is to promote
creativity while protecting the author's expression in its original, designated form.
Using Copyrighted Work
When using copyrighted work, whether obtained online or from a print publication, you must obtain permission from the author. If you are not the author and use a
publication, photograph, illustration, or other original work without obtaining a license to use the material, you may be infringing a person's copyright. Once
you've obtained a license, make sure to understand the terms and be careful about using it in subsequent transactions if you aren't explicitly authorized.
Another means of using copyrighted material is provided by the copyright law itself and is known as the Fair Use exemption. Pursuant to 17 U.S.C. § 107, if
a person is using a copyrighted work to criticize, comment, teach, or for news reporting or research purposes, it is not an infringement. However, there are several
factors that must be considered when making a Fair Use determination:
- What is the purpose and character of the use? Is the person using the author's work to benefit financially?
- What is the nature of the copyrighted work? Has it been used in a transformative way or has the work been copied as the author had originally published?
- How much of the copyrighted work has been used? Has an entire book been republished or a photograph used in its entirety, or did the person limit using the
author's work to what was necessary to achieve the particular use?
- Does the use impact the potential market of the author's copyrighted work?
These four factors assist a court in determining whether the copyrighted work fits into this Fair Use exemption. A court may be inclined to find Fair Use if a person's
use of the author's work is not for commercial gain, is used in a transformative way with limited use of the author's original work, and has a minimal impact on the
author's market. While these balancing factors help the court evaluate whether there is a copyright infringement, don't assume that you can copy any document or photo
and claim Fair Use - it's an extensive review that requires the guidance of your city or town attorney to ensure that there is no copyright violation.
Avoiding Pitfalls
A common misconception is that if a person credits the author for their work there is no copyright infringement, but this is false. You
need written permission from the original author to use the author's
work - merely citing a name or organization is insufficient.
Another issue arises when an image or document does not have an author listed so a person assumes the image is free to use. Yet it is likely that another individual has
already infringed on the author's copyright by posting the work online without permission and the work continues to be used without consent by others who believe the
material is in the public domain. This often occurs with photographs or clip art. Remember that if you haven't been given a specific license to use the material, request
permission from the author or don't use it.
Copyright Infringement
If you have used a copyrighted work without permission, cease its use immediately. If the work is posted online, take the material off of the website. While this does
not void the act of infringement, it does demonstrate your good faith to comply with the law, especially if your infringement was inadvertent.
If you receive a demand letter from a company alleging that you city or town has violated copyright law, discuss next steps with your attorney and be prepared to provide
the facts necessary for your attorney to conduct a thorough analysis under the copyright law. Penalties for copyright infringement includes damages, attorney's fees and
costs and in some circumstances, possible criminal penalties for willful infringement conducted for the purpose of making a profit. 17 U.S.C. § 504.
While the internet has made vast amounts of information readily available, this article highlights some important considerations to avoid copyright infringement when a
city or town adds content to websites, creates conference brochures or speaker presentations, or publishes municipal newsletters. Copyright protection exists to recognize
an author's work while fostering new expression based on that original work. The good news is that cities and towns can avoid infringement by obtaining a license to use
copyrighted materials or seek advice of legal counsel to determine a fair use exemption before utilizing a work for use in a city or town publication.
Additional Resources
United States Copyright Office
Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015)
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League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org
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