(S.D. N.Y. 1993).)
the fair use rule, the copyright owner has
the exclusive right to copy, distribute, adapt,
perform, and display such works.
Is Modifying Images or
It is a copyright infringement,
Sounds Infringement?
for example, to scan a copyrighted
It is common practice for graphic artists
photograph and place the image on the
and others to download images from the
Internet without the copyright owner’s
Internet and other online sources and then
permission. It is likewise an infringement
modify or adapt them using computer
to download a protected image and use it
graphics software. The altered images are
without permission. Use means copying,
often used in magazines, books, and other
distributing, adapting, or publicly
published works. Similarly, it’s possible to
performing or displaying the work.
download sounds and reuse bits and pieces
EXAMPLE 1: Starware Publishing Corp.
in new recordings.
downloaded several graphics files from
One of the exclusive rights a copyright
a computer bulletin board service and
owner has is to create derivative works from
published them on CD-ROMs. The files
his or her own work. A derivative work is one
contained 52 copyrighted photos owned by
that is based on or recast from an original.
Playboy Magazine. Playboy sued Starware
(See Chapter 7.) A derivative work is created
for copyright infringement and was awarded
when an existing image or sound is modified
$1.1 million. ( Playboy Enterprises, Inc. v.
or altered to form part of a new work. Such
Starware Publishing Corp., 900 F.Supp. 433
a work would be a copyright infringement
(S.D. Fla., 1995).)
unless permission is obtained to create it or
it constitutes a fair use. The only exception to
EXAMPLE 2: 140 music publishers sued
this rule might be where the original image
CompuServe, alleging that the online service
or sound is so completely altered that the
had infringed the copyrights in over 550
original source is no longer recognizable.
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 139
However, simply viewing an image or
be registered by the Copyright Office if
listening to sounds that have been placed
original and minimally creative, but such
online by the copyright owner is not an
protection does not extend to the website’s
infringement. Although no court has so
layout, formatting, or look and feel. So,
ruled, it seems clear that by the act of
a cascading style sheet is not protectable
uploading such a work, the copyright owner because it simply defines the layout of text.
has granted other users an implied license
to download it to their own computer for
Electronic Databases
personal viewing or listening.
An electronic database is a collection of
Websites
facts, data, or other information assembled
into an organized format suitable for use
Websites are protected by copyright if, and to on a computer. The material contained
the extent, they are original. If a site contains in a database may consist of text files, valuable expressive material, it should contain graphics, images, sounds, and anything
a copyright notice. Many websites consist
else a database creator can think of. Many
largely of collections of hypertext links,
electronic databases are accessible online—
similar to an address book. These may be pro- for example, databases of magazine and
tectable as compilations if a minimal amount journal articles may be accessed through
of creativity was required to create them. (See commercial online services, like Lexisnexis.
Chapter 6, “Adaptations and Compilations.”)
The individual works contained in a
For example, a collection of links to the best database may be protected by copyright as poetry sites on the Web is likely a protectable described in this section, or they might be compilation—the individual links would not unprotectable. Either way, there can also be
be protected, but copying the entire collection a compilation or collective work copyright would be a copyright violation. Such link
for the database as a whole. (See Chapter 6
collections are a new form of protectable
for a detailed discussion.)
material produced on the Internet.
However, there is no copyright protection
Electronic Mail
for the format of a FAQ (frequently asked
questions) page on a website. The FAQ
Electronic mail is protected the same way
format is considered common property.
as a physical letter. To the extent that it is
( Mist-On Systems, Inc. v. Gil ey’s European
original—that is, not copied from someone
Tan Spa, 303 F.Supp.2d 974 (D. Wis. 2002).) else—it is fully protected by copyright the The HTML code used to create a website instant it is fixed in a physical medium,
is protectable as a literary work and will
such as a computer hard disk.
140 | THE COPYRIGHT HANDBOOK
The author of an email message owns
infringement suit over something as
the copyright in the message unless it was
valueless as email, it’s good manners to
created by an employee within the scope of ask permission before distributing another
employment. In this event, the employer
person’s email.
is considered the author for copyright
In some cases, however, the senders of
purposes and automatically owns the
email may be deemed to have implicitly
copyright in the message. (See Chapter 9.)
consented in advance to permit others to
When you receive a physical letter
distribute their email—for example, when a
from someone, you don’t have the right to
person sends email to a Usenet newsgroup.
publish it in a newspaper or book unless
The only reason to send such a message is
such a use constitutes a fair use or the
to have it posted on the newsgroup so that
owner of the letter gives you permission.
others may read it. It’s much like sending a
The same holds true for electronic mail:
letter to the editor of a newspaper. In such
Subject to the fair use rule, it would be
cases, the sender would likely be deemed to
copyright infringement for you to forward
have consented in advance to the posting of
an electronic message received from
his message.
someone else without permission. Likewise,
modifying an electronic message without
Blogs
the sender’s permission would violate the
sender’s exclusive right to create derivative
It is estimated that 75,000 new blogs are
works from the message.
created every day. Like any other work of
Of course, email is distributed and
authorship, a blog is protected by copyright
modified all the time without obtaining
to the extent it is original.
express permission from the copyright
Blogs ordinarily present far fewer copyright
owners. So long as this is not done
issues than forums or newsgroups, since
for commercial purposes, it probably
they are usual y authored primarily by just
constitutes a fair use—for example, it’s
one person. Obviously, that person owns
undoubtedly a fair use to quote portions
the copyright in the work. However, blogs
of an email message for a scholarly,
often include writings, photos, artwork,
journalistic, or educational purpose.
music, and other copyrighted work owned
However, some people who send email
by other people. In some cases, these uses
may not be aware of this and may be upset
might be a fair use; in other cases, permission
if their messages are copied without their
should be obtained. See Chapter 10, “Using
permission. Although it’s highly unlikely
Other Authors’ Words,” and Chapter 14,
anyone would bother to bring a copyright
“Obtaining Copyright Permissions.”
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 141
Public Domain Books Get Digitized
In 2005, Google.com announced that it had
Google is not the only entity with big
entered into agreements with several major
plans to digitize books. Others include:
research libraries to digital y scan millions of
• Internet Archive. Although primarily
books from their collections and make them
known for its vast collection of websites
available on the Internet as part of Google’s
and other “born digital” content,
book search service (https://books.google.
it also contains digitized versions of
com). Google announced that it would make
over 8 mil ion public domain books.
freely available to Internet users full copies of
See https://archive.org.
books published in the United States before
• Project Gutenberg. Bil ing itself as
1923. These works are all in the public domain
the first producer of free electronic
because their copyrights have expired. Google
books, U.S.-based Project Gutenberg is
will al ow access to only a few pages of books
a private-sector project offering over
published after 1923. Many of these books are
33,000 public domain texts, including
in the public domain because their copyrights
literature and reference materials to
were never renewed, but Google apparently
the general public through e-book
thinks it is not feasible to research this.
downloads to portable devices. It has
After ten years of litigation and fruitless
partners in various countries, including
settlement efforts, the case was final y
Australia, Canada, the United Kingdom,
resolved in 2015 when a federal appeals
and France, through which over 100,000
court held that Google’s book scanning
free e-books are available. See www.
program was a fair use of the copyrighted
gutenberg.org.
books involved and approved the federal
• Open Content Alliance. Conceived
trial court’s grant of summary judgment
by the Internet Archive and Yahoo! in
in Google’s favor. The appeals court found
early 2005, the Open Content Al iance
that “Google’s making of a digital copy to
(OCA) is a col aborative effort of various
provide a search function … augments public
cultural, technological, nonprofit, and
knowledge by making available information
governmental organizations that aims to
about [p]laintiffs’ books without providing
build an archive of multilingual digitized
the public with a substantial substitute for
text and multimedia material. In addition
matter protected by the [p]laintiffs’ copyright
to a significant number of public domain
interests in the original works or derivatives
works, the archive also contains materials
of them.” ( Authors Guild v. Google, Inc. , 804
contributed voluntarily by copyright
F.3d 202, 207 (2d Cir. 2015).) The U.S. Supreme
owners. In total, it currently contains
Court declined to review the case.
approximately 1.6 mil ion books. See
www.opencontental iance.org.
142 | THE COPYRIGHT HANDBOOK
Public Domain Books Get Digitized (continued)
• HathiTrust Digital Library. The
the Internet & Society, with financial
HathiTrust is a group of 57 libraries,
support from various funders. The DPLA
including the Library of Congress, whose
plans to aggregate metadata records for
goal is to “contribute to the common
mil ions of photographs, manuscripts,
good” by providing a shared platform
books, sounds, moving images, and more
for making digital collections available
from hundreds of libraries, archives, and
to users. The initial focus of the trust
museums around the United States. Each
was on preserving and providing access
record links to the original object on the
to digitized books and journals in
content provider’s website. Many of the
col aboration with Google, the Internet
items are in the public domain. Digital
Archive, Microsoft, and in-house
copies of some objects are available for
digitization initiatives. Over five mil ion
download, based on the content provider
books have been digitized. See www.
and the individual rights status of the
hathitrust.org.
object. See https://dp.la.
• Digital Public Library of America. The
Given all this activity, it seems certain that
Digital Public Library of America went
virtual y every available book published in the
online in mid-2013. It was created by
United States before 1923 will be freely available
Harvard University’s Berkman Center for
on the Internet within the next few years.
Public Domain Materials
of works receive no copyright protection—
for example, works created by the U.S.
A large and growing number of public
government. An author—that is, the person
domain materials are available on the
who creates a work, or the owner of a
Internet. For example, Project Gutenberg
work made for hire—can also dedicate an
(www.gutenberg.org) is creating digitized
otherwise protectable work to the public
versions of great literary works and making domain. This can be done by stating, “This
them available for downloading on the
work is dedicated to the public domain” on
Internet. This is pe
rfectly legal. When a
the work. There is no need to make a filing
work enters the public domain, copyright
with the Copyright Office or any other
protection ceases. The work is freely
agency to dedicate a work to the public
available for all to use.
domain. Note carefully, however, that a
A work can enter the public domain for
work is not dedicated to the public domain
many reasons. The most common reason
simply because it is made available online.
is that the copyright expires. Other types
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 143
The Da Vinci Code and
Never assume that a work is in the public
the Public Domain
domain merely because it lacks a copyright
notice. Copyright notices are optional for
In 2003, Dan Brown published The Da Vinci
published works and are not required at
Code, based on a startling idea: Jesus Christ
all for unpublished material. So the fact
and Mary Magdalene married and had a child
that a work lacks a notice essentially tells
whose descendants are alive today. The book
you nothing about whether the work is
became the subject of a lawsuit that resulted
protected by copyright.
in one of the most celebrated copyright
In addition, be aware that some publica-
infringement trials in history. The British
tions available online contain a mix of public
authors of the 1982 nonfiction book The
domain material and material that is protected
Holy Blood and the Holy Grail sued Brown’s
by copyright. Protected material does not lose
publisher in Great Britain, claiming that Brown
its copyright protection merely because it is
had gotten the idea, and much else, for his
mixed with public domain material. Copying
novel from their book.
an entire file containing such mixed material
Brown admitted that he had relied on the
could constitute copyright infringement of
book for his research, and even mentioned it
in his novel. Nevertheless, the judge, applying
the protected material.
British copyright law nearly identical
EXAMPLE: A publisher of legal databases
to American, held that Brown had not
used a computer scanner to make digital
committed copyright infringement. Brown
copies of legal case reports from West
had used many of the ideas, facts, theories,
Publishing Co. The legal cases themselves
and conjectures in The Holy Blood and
were in the public domain, but the copies
The Copyright Handbook Page 26