Introduction

Copyright law governs the rights of authors to control the use of their work. Once established, a copyright will last for the life of the author, plus seventy (70) years, except in work-(made)-for-hire situations where the life is 95 years from publication or 120 years from creation, whichever is shorter. Note: these guidelines apply to works created on or after 1978.

To qualify for copyright protection, the author's work must be original and fixed in a tangible medium, such as on paper or a computer disk. Originality does not require that the work be a novelty. It does, however, require that the author's contribution be something more than minimal. Literary and pictorial works are the two main types of works that newspapers copyright.

Back to top.

Material not subject to copyright:

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:

  • Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;
  • Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing;
  • Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information;
  • Works consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.

To enforce a copyright, one must have ownership rights in the copyright itself. This is generally the case if one is the author of the work. However, when the author is an employee of another, or if an independent contractor does the work, special rules govern ownership of the copyright (See Work for Hire and Joint Ownership).

Areas of interest in the newspaper industry are:

  • Ownership: Generally, the author of the work is the copyright owner.
  • Infringements: Infringement of a copyright occurs when any of the exclusive rights of a copyright owner are violated.
  • Notice and Registration: Placing the copyright symbol on your work, and timely registering with the Copyright Office of the Library of Congress, can maximize the protection of your work.

Back to top.

Ownership

A copyright owner has the exclusive right to:

  1. reproduce the work in copies;
  2. prepare derivative works based on the copyrighted work;
  3. distribute the work to the public; and
  4. display the work publicly.

These rights can be individually sold, transferred or licensed to another.

Generally, the author of the work is the copyright owner. However, when the author is an employee of another, or working at the direction of another, the employer may own the copyright. In these cases we need to look to the special rules for work for hire and joint authorship.

Back to top.

Work Made For Hire

If an employee authors a work eligible for copyright and the work is in the scope of his or her employment, his employer owns the copyright of that work. The employee author is considered the agent of the employer and, as such, the employer is deemed the actual author of the work. Therefore, the employee has absolutely no ownership rights in the work. This is the classic work-for-hire situation.

Today, defining what an employee is can be difficult. Usually there is no question as to the status of people employed on a regular basis who receive regular wages and where the employer deducts social security and other taxes from the employee's paycheck. However, the law is less clear when we deviate from those norms.

This determination is critical for copyright ownership. If the person employed is deemed an employee rather than an independent contractor, the employer owns the copyright. As such, the employer can do as he chooses with the work without any legal objections from the employee.

The rules of Agency Law classify a person as an employee or an independent contractor. Among the factors looked at is the physical control the employer has over the actions of the "worker." If the employer can control the timing, and manner of work done by the "worker," the employee will look more like an employee than an independent contractor. Each case is determined by the unique facts of the situation.

If a worker is an employee under Agency Law, the employer generally assumes that any work completed in the normal course of employment will be owned by the employer. No extra agreement is necessary, though it is recommended that agreements be made with all employees when in doubt.

If a worker looks more like an independent contractor under Agency Law, the employer can still become the owner of the copyrighted work in some situations, but he must plan ahead. First, there must be an agreement between the employer and the independent contractor that they are entering into a work for hire arrangement. This should be done before any work has begun. Next, the work arrangement must be for one of the nine specially ordered categories listed below:

  • use as a contribution to a collective work;
  • part of a motion picture or other audio visual work;
  • use as a translation;
  • use as a supplementary work;
  • use as a compilation;
  • use as an instructional text;
  • use as a test;
  • use as answer material for a test; or
  • use as an atlas.

The first category (contribution to a collective work) will usually cover the newspaper industry. For example, an article for a newspaper is a contribution to a collective work.

If both parties do not sign the contract, the employer risks that the finished product will be copyrightable and will be deemed owned by the independent contractor outright. In that case, the independent contractor and not the employer is the only one who can control that work.

Back to top.

Joint Ownership

Closely related to the work (made) for hire doctrine is the doctrine of joint ownership. This can only arise if the author of the work is not an "employee" as discussed above. If both the employer and the independent contractor contributed to the finished product, and this was their intent, there may be a case for joint ownership. The intention of the parties at the time of the undertaking is weighed heavily.

If a work is a joint ownership work, each owner has an independent right to use or license the use of the joint work. Each one has a duty to account to the other for any profits.

This concept has caused some outrage, especially in the freelance photography community. Publishers generally do not expect that the magazine photo editor who touches up a photo before publication would become the joint owner of that photo. Publishers expect that they are the sole owners.

Back to top.

Advertisements

Advertisements in newspapers must contain their own copyright notice to be enforceable, and are not covered by the newspaper's general notice in the newspaper. This requirement is erased, however, if the newspaper itself is the sole owner of the advertisement. The newspaper should include in its rate card information concerning the requirement of notice if the advertiser intends on claiming copyright protection for the ad.

Back to top.

Planning

The future of CD-ROM and other multimedia products creates great opportunities for the newspaper industry. However, to enjoy success without legal headaches some planning is essential, especially in the area of copyright. A few steps now could save time and money later.

First, draft a contract for all freelancers. It should be clear as to who owns the copyright interests in the work produced. It should also be drafted broadly to cover all potential uses, even those not yet contemplated. Ideally, the newspaper should draft it whereby it owns all rights exclusively in the finished material.

Next, conduct an audit of existing material and identify who owns the copyright in that material. First, identify if one of your employees produced the work. If so, it is a work for hire situation where the newspaper is the outright owner of the work. If a freelancer produced it, you must locate the contract you have with him/her to determine who owns the rights in the material.

These steps will allow you to decide what material you may use outright, and what material you may not use without permission from the copyright owner. Doing this before any derivative work is planned may avoid a possible claim for infringement.

Back to top.

Statutory Requirements: Notice And Registration

Notice

Until recently, copyright law required notice on published copyright works (March 1, 1989). Today, however, although there is no longer a requirement for copyright notice on published works, it is advisable. The law makes it advantageous to provide notice. For example, notice is necessary to receive statutory and actual damages. For definitions see below.

The form needed to convey notice consists of three items:

  1. The copyright symbol (©), or the word "copyright", or the abbreviation Copr.
  2. The date (year), and
  3. The name of the copyright owner (or a term that the public would identify with the owner).

Example: © 1999 Pennsylvania Newspaper Association

Only one notice of copyright is necessary to cover all contributions to collective works, such as a newspaper. Notice should be placed where a reasonable person could find it.

When no notice is given on a work, there is a possibility that someone will believe the work is not subject to copyright. This is the case of the innocent infringer. The innocent infringer will have no liability for actual or statutory damages (see below). The court may even allow for continued use subject to a payment of a license fee by the infringer.

An infringer may not use this defense if he has access to a published copy covered by an authentic copyright notice. This opens up the possibility for statutory as well as actual damages. See below.

Back to top.

Registration

Copyright registration is not a condition for copyright protection, but the Act is written to encourage registration of copyrights by providing several advantages to those who register.

Registering a copyright:

  1. establishes a public record of the copyright;
  2. is a precondition to bring an infringement suit;
  3. most importantly, within three (3) months of publication or prior to an infringement, allows the owner of the copyright to seek statutory damages and attorneys' fees in court actions. Without a registered copyright, only an award of actual damages and profits is available.

If a newspaper chooses to register, there are special "group registrations" for daily and weekly newspapers.

Back to top.

Two Special Conditions for Participation in Group Registration

Before submitting any work for group registration, the following conditions must be met:

1. Two complimentary subscriptions must be entered in the Library of Congress. The mailing address for these two subscriptions is:

Library of Congress
Group Periodicals Registration
Washington, D.C. 20540 - 4161

2. A letter must be sent to the Copyright Office General Counsel confirming that the two complimentary copies have been entered in the Library of Congress. The letter has to identify the publisher, the title(s), and the indicia (i.e. volume, number, and issue date on copies) that begin the complementary copies. The letter should be sent to:

General Counsel
Library of Congress
Department 17
Washington, D.C. 20540

To take advantage of group registration, newspapers published at intervals of a week or longer must:

  1. Automatically and regularly submit two (2) complimentary subscription copies of each issue to the Library of Congress. Copies should be submitted promptly after publication of each issue. The privilege of group registration will be revoked if the Library of Congress does not receive these copies.
  2. Submit to the Copyright Office of the Library of Congress form SE/Group along with a copy of each issue of a newspaper published within a three (3) month period during the same calendar year.
  3. Register within three (3) months after the date of publication of the last issue included in the group registration application.
  4. Pay the appropriate per issue fee.

To take advantage of group registration, daily newspapers must:

  1. Place all final edition issues published within one (1) calendar month on microfilm.
  2. Submit to the Copyright Office of the Library of Congress form G/DN with the microfilm along with the cover issues of newspapers for the same calendar month.
  3. Register within three (3) months after the date of publication of the last issue included in the group application fee.
  4. Pay the appropriate monthly fee.

These registrations should be sent to:

Register of Copyrights
Library of Congress
Washington, D.C. 20559-6000

If a work is registered within five (5) years of publication, the infringing party is faced with the obstacle of rebutting a presumption that the copyright is valid.

Back to top.

Deposit

Although a copyright registration is not required, deposit is required. If newspapers choose not to register a copyright, they must deposit two (2) copies of their publication with the Copyright Office of the Library of Congress (i.e., give the Library of Congress two (2) complimentary subscriptions.) Daily and weekly newspapers that register their copyright automatically comply with the mandatory deposit requirement of the Act.

Failure to deposit a newspaper does not affect copyright protection, nor does it subject the copyright owner to any penalty unless the Register of Copyright sends the copyright owner a written demand to deposit the work. If, after three (3) months from receiving the demand, the owner still does not deposit the work, he or she may be liable to pay the retail price of the copies demanded into a specially designated fund so that the Library of Congress may acquire the works, in addition to a fine of $2,500, plus $250 per work.

The Library of Congress will not enforce the mandatory deposit requirement if the newspaper does not include a copyright notice on its issues and notifies the Library of Congress in writing that it does not intend to pursue copyright protection for its issues.

Given the small cost of two (2) free subscriptions, all newspapers should give the copyright office the free subscriptions and comply with the Act.

Back to top.

Infringements

Infringement of a copyright occurs when any of the exclusive rights of a copyright owner are violated.

When someone claims infringement, he must select between certain types of damages available to him. Those available include:

  1. Actual damages: profits by the infringing party and/or loss of profits by the copyright owner;
  2. Statutory damages: where the court determines what is a fair penalty based on the facts of the case; and
  3. An injunction: can be elected along with either actual damages or statutory damages. Additionally, criminal penalties are also possible.

If a plaintiff asks for statutory damages or attorney's fees, he must have filed for registration within three (3) months after first publication of the work. This is a big inducement to register because it is not always easy to show actual damages. Courts have the discretion to modify damage awards based upon intent to violate copyright laws. Intentional violations can lead to damage awards of up to $100,000. In addition to the above damages, copyright owners may also receive costs and attorneys' fees.

Back to top.

Criminal Infringements:

Violations of the Copyright Act may fall into the category of criminal actions. Criminal infringements cover any person who infringes a copyright willfully either for purposes of commercial advantage or private financial gain, or by the reproduction or distribution of 1 or more copyrighted works, which have a total retail value of more than $1,000.

The following actions are also considered to be criminal infringements:

  • Fraudulent Copyright Notice: Placing on any article a notice of copyright (or words of the same purport) that such person knows to be false and doing so with fraudulent intent.
  • Fraudulent Removal of Copyright Notice: Removing or altering any notice of copyright appearing on a copy of a copyrighted work and doing so with fraudulent intent.
  • False Representation: Knowingly making a false representation of a material fact in the application for copyright registration.

Back to top.

Defenses

Whenever someone uses a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research it may be deemed a fair use and thus exempt from infringement if it is reasonable and incidental. The Copyright act lists four factors for determining whether the use of a work is fair use. These factors are:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

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. (17 U.S.C. §107)

The major inquiry is whether the use by the suspecting infringer has taken away from the copyright owner's opportunity for profit. If a court finds that the copied image is affecting the value of the original image, the usage will not be considered fair use.

Back to top.

See Also: United States Copyright Office - The Library of Congress

Contact Us  |  3899 North Front Street, Harrisburg PA 17110  |  Phone: (717) 703-3000  |  Fax: (717) 703-3001