© Basics: Assignment

Copyright is sometimes called “intangible property” and, like property, it is possible to transfer ownership of a copyrighted work from one person to another.

A transfer of copyright ownership is called an assignment. It is possible to make a complete assignment of ownership to another or a partial assignment so that only a particular right (such as the right of publication) is assigned but the rest are not. Like licences, it is also possible to limit an assignment to a particular place or for a specified time. Often, assignments are given in exchange for payment.

The important thing to remember is that upon assignment there are no residual rights left with the former owner. The former owner will need to ask the new owner for permission to use the work even if the former owner created the work. Legally, the work is not theirs anymore.

To be effective, an assignment must be in writing and signed by the person giving the assignment. This requirement was much simpler to navigate pre-internet, when you needed to sign an actual physical document. In the online environment, however, courts have accepted that a signature can be constituted by clicking the “I agree” box at the end of an online contract. These contracts are often called click wrap agreements. This is why it’s important to read at least the copyright section of those boring online terms of service, full of legalese in small print, that everyone just scrolls past to get to the “yes” or “I agree” box at the end. You don’t want to be accidentally signing away your copyright.

I’m going to be doing the hard work for you (lucky you!) – in upcoming posts I will pull apart the terms of service for Facebook, Instagram, WordPress and other online services and I will explain the most important things that you need to know about your rights and obligations when using these platforms. If there are any services in particular that you’d like me to cover, please let me know in the comments!

What is copyright infringement?

stop sign grunge

The general rule for copyright infringement is:

Infringement = exercising one of the copyright owner’s exclusive rights without the copyright owner’s permission or without a legal exception

The most common form of infringement is copying (reproducing) a copyright work or other subject matter. There are some important things to know in relation to infringement by copying:

(1) To infringe a literary, musical, artistic or dramatic work, the copy does not have to be exact. It just has to be substantially similar. For example, let’s pretend that the Mona Lisa is still protected by copyright and is not in the public domain. I could infringe copyright by making an exact copy – e.g. by colour photocopying the painting. But I could also infringe copyright by sitting down in front of the Mona Lisa and trying to recreate it by painting by own version. I won’t be able to make my painting look exactly the same as the Mona Lisa (it would look a lot worse), but I will still be making a substantially similar copy.

(2) Conversely, to infringe a sound recording, cinematograph film or a published edition, the copy does have to be exact. In other words, I can infringe a sound recording by burning a CD or copying an mp3 file. But if I were to sit down and record myself playing the same music from a sound recording on my guitar, that would not be an infringing copy of the sound recording (though it may be an infringing copy of the underlying musical work).

(3) You do not have to copy the entire work to produce an infringing copy. The law says that you have to copy a “substantial part”. This is a little misleading, because it makes it sound like you need to copy a lot to infringe copyright. You don’t. What the law means here is that the part you copy should be more than trivial. Even copying a small part of something can be infringing so long as it is not trivial. What the court looks at is the quality of what is copied rather than the quantity. So, for example, copying the chorus from a song is likely to be substantial because the chorus is usually central to the song and memorable, even if the chorus is not substantial (in terms of quantity) when compared to the length of the verses.

What can happen to you if you infringe copyright?

If you get sued for copyright infringement, there are two main remedies that a court may order against you.

(1) An injunction – this is basically a legal order that you must stop using the copyright work.

(2) Damages – the legal term for money ($). You might be required to pay the copyright owner a certain amount to compensate them for using their work without permission.

Where to from here?

You will be happy to know that this marks the last of the heavily legal posts. Now that we have a foundation in place for a basic working knowledge of copyright law, I’ll be able to get to the posts that are more directly relevant to your interactions online. Coming up soon:

  • Where to find content that is free to use on your blog (such as photographs)
  • How to ask for permission to use a copyrighted work
  • When you don’t need permission (legal exceptions to infringement)

Plus, very soon I’m going to dive into the legalities around collaborations – how to decide who owns what, and things to talk about before you collaborate.  So there are lots of exciting posts on the horizon. Catch you next week!

Image credit: Stop Sign Grunge by Nicolas Raymond, licensed under Creative Commons BY 2.0