Monday, July 16, 2007

Mine and thine

I’ve run into a number of situations lately where otherwise honest, competent, and intelligent adults—people who know the difference between right and wrong and who try to conduct their lives accordingly—have been ready and willing to steal something belonging to someone else.

In all of these cases, the problem was confusion over the nature of intellectual property.

I’m not going to try to give you a primer on copyright law. I’ll leave that to the lawyers. And I’m not going to get into a philosophical discourse on whether or not copyright protection benefits society. What I’m going to do here is put up some Dangerous Curves signs so you at least slow down enough to avoid skidding over a cliff.

Published versus public domain
“I found it on the Web” means that the material–article or image–is published. Someone owns it, whether or not there is a copyright notice attached to it. It may not be immediately apparent who owns it, because the site where you found it may have stolen it from someone else who stole it from someone else who…. But it isn’t yours, in any case, and you can’t use it without obtaining permission (which is not automatic) and, often, paying a fee.

The exception is when a creator explicitly states that the work is to be considered in the public domain and is free for anyone to use for either noncommercial or commercial purposes. Even then, you should look for restrictions, such as a requirement that you credit the creator.

Typically, the only way material enters the public domain—meaning anyone can use it without paying for the privilege—is by aging into it. Deciding whether something is actually in the public domain may require consultation with an attorney, even if you’re almost sure you’re right.

What about fair use?
The doctrine of fair use says there are certain circumstances when you can use someone else’s work. Unfortunately, the exact rules for fair use are only determined as the result of lawsuits. So you don’t want to claim fair use in any commercial context (meaning in any book you plan to publish and sell) without consulting an attorney, because you cannot afford to be sued.

Dos and don’ts
Do obtain permission to use other people’s work. Do get the permission in writing. Do understand exactly what you have permission to do, what rights you are buying, and what restrictions apply. (A freelance permissions editor can save you a lot of time and worry.)

Do not copy passages you find in books or on the Internet, either verbatim or with minimal text changes, whether you credit them or not, without permission. Do not copy images you find in books or on the Internet, even if they are images of very old paintings and even if you want to apply visual filters to them and incorporate them in a larger work. Do not copy or quote song lyrics—even a single line—ever, in a book or article for publication. Do not quote correspondence you receive from other individuals without their written permission.

Bottom line
If someone else published it, then someone else owns it. If you cannot determine who owns it, you cannot use it. If you are able to determine who owns it, then you have to obtain (and often pay for) permission to use it. And that permission may come with restrictions.

The above paragraph is your get out of jail free card. Print it out. Stick it on your wall. Link to it if you wish. Just don’t republish it as your own. I would not find that amusing.


Sarah said...

One major additional source of public domain content is the U.S. government. Most of what they create is public domain.

Dick Margulis said...


That's true but it can be misleading to the unwary author or publisher. The government has large collections of photographs, for example, that are the property of individual photographers who donated copies for archival purposes but who retain the copyright. The government also has large collections taken by government photographers and truly in the public domain.

My post was aimed at the person who is so inexperienced in dealing with intellectual property that they might not be able to tell the difference easily. So my cautions stand.


Jeannette Cézanne said...

Dead-on comment about "otherwise honest, competent, and intelligent adults." I was recently working with an author, an entrepreneur who runs a mega-successful business (his third, by the way) and who took three paragraphs off a website and included them in his book. No attribution. When I tracked it down and pointed it out to him, he said, "I didn't know that's the way it works."

How could you *not know*? I was nonplussed.

But we've all seen it. Why is the web different from any other medium in folks' perception?

Like dark matter and the meaning of life, some things are just beyond my understanding ...


Michael A. Banks said...

Yeah, "I found it on the Web." Kind of what this clown who copied one of my articles out of History Magazine said. An article that wasn't even online. He went to the trouble of copying it right down to the layout and illustrations, carefully deleting my byline and the name of the magazine. I called him out on it and he said, "Oh, you can't tell me to take it down! You know damn well this stuff's all over the Web." Infuriating!

I sic'd the publisher on him.

Good summary of the mess, Dick. I'll link to your article from my blog.