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© Copyright Law & Definitions ©

To understand the law, one must understand how the courts function. Court decisions revolve around precedent, that is, those decisions that have come before determine how the court will rule on an issue today. When you read a court decision you will see many references to past court cases as a basis for the statements and opinions being made. More more complicated the court case the more other cases that will be cited. Court are loathe to reverse a long-standing decision. To do so would create an instability in the law and the application of the law.

Federal law is applied a little unevenly across the many federal circuits with the 9th Circuit being the most liberal and unpredictable. But Supreme Court decisions are expected to be followed in all circuits. Many facets of the law are applied based upon Supreme Court decisions that are over a hundred years old. The courts simply do not revisit established law without extraordinary reasons.

Some people who disagree with the content of these pages argue that there are no recent court decisions concerning some of the basic aspects of cited copyright law. Once a principle has been clearly established by the Supreme Court and without a material change in the statutes, courts will continue to follow the ruling even if it is from a hundred years ago.

Copyright law is being misinterpreted by a lot of people; accidentally by some and deliberately by others. It isn't as fuzzy an area as trademark law.

There are a lot of on-line sales sites that are infringing upon trademarks and copyrights. Many sites openly sell "replicas", which by definition are infringing. We do not endorse infringement. These pages are designed as a reference for those who are not infringing or those who are not sure that they are. There is an increasing number of companies and corporate lawyers who are trying to exploit unknowing and unwilling infringers. Beware.

The first major error is those who believe that if they write it, or photograph it, it is automatically theirs and no one else can use it. There are some really big flaws in this approach:

  1. To be eligible for copyright, the work must be original and creative. There's nothing creative about an auction listing or directions to the local grocery store.
  2. Someone commented they should take a picture of their house so no one else could. Wrong. We could stand in almost the same spot and take almost the same picture and your "copyright" would not stop our use of our picture. It is the picture itself that is afforded protection; not the subject of the picture.
  3. To get statutory damages, a copyright MUST be registered with the copyright office BEFORE the alleged infringement.
  4. Fair use allows others to use their work for non-commercial, educational use and commentary (such as this web site).
  5. Many things cannot be copyrighted

There are a lot of people who think copyright gives them something more than they actually get. A lot of these people are designers and artists who want to believe they are getting more from copyright than they are really getting. Copyright protection is not as complicated as people think provided you look at from the legal perspective rather than from the personal desire perspective.

We do not agree with all of the opinions or conclusions stated in all of the following articles referenced in the following categories. We have attempted to present different sides of the arguments as we have found them. We only present information we consider to be well argued and factually supported. We do not take credit for the information presented. The great majority of it is gleaned from other sources. In many cases we credit the originator.

Areas of Copyright Law & Definitions

  • Angel Policies, and Cottage Licenses are a figment of the imagination. They were dreamed up by designers and companies who want you to buy additional copies of their patterns, rubber stamps, etc. There is no basis in statutory law for these so-called licenses.

  • Contributory Infringement, helping someone else infringe. Sometimes this is unknowingly done but it still can have consequences. Contributory infringement is actionable just like regular copyright infringement.

  • Copyrightability, a look at what can be copyrighted and what cannot be copyrighted. A lot of people believe something is copyrightable because it was their idea or because they wrote it.

  • Copyright Extortion, a modern extortion scheme being used by unethical corporate lawyers and opportunists.

  • Copyright Misuse Doctrine. an evolving defense to copyright infringement because of overreaching licensing by copyright owners.

  • Derivative, what it is and what it is not. It is an allegation often used by corporate lawyers when claiming infringement.

  • DMCA Takedown Notices -Requirements and Risks, posting by Christopher Barnett about the Digitial Millennium Copyright Act.

  • EULA, End User Licensing Agreement and what it really is and how software companies are abusing the rights of the consumer. These "shrinkwrap licenses" are being held as invalid by court after court but that does not stop the software companies from attempting to enforce them.

  • Fair Use. It is defined in copyright law as a valid defense to copyright infringement. However, the copyright owner rarely considers fair use valid.

  • Food Chain Barbie, Mattel loses again over Barbie in this First Amendment case versus copyright infringement. Mattell loses a lot of Barbie cases.

  • First Sale Doctrine which limits the copyright holder's ability to control subsequent use and sale of the copy. Like fair use, the first sale doctrine is dismmised by the copyright owner as not existing.

  • 512(F) of the DMCA and potential damages from false claims. Unfortunately, few abusers are ever punished.

  • Idea-Expression Dichotomy, The Copyright Act expressly sets forth that copyright protection does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery." This rule, the idea-expression dichotomy, means that ideas, as opposed to expression, are not copyrightable.

  • Licensed Fabric: what you can and cannot do with it. "Licensed" fabric does not mean the fabric is licensed to the purchaser but rather that the copyright/trademark owner has licensed someone to print the fabric with the protected images on it.

  • Misconceptions about copyrights, how they begin and how they are spread.

  • Parody: Fair Use or Copyright Infringement, 1999 article by Lloyd L. Rich.

  • Parody vs Satire Analysis, in PDF format, from May 2006, American Bar Association paper by Juli Wilson Marshall.

  • Ordinary Observer test, also called the "reasonable person test", as defined by federal court for determining infringement.

  • Patterns and how copyright law actually applies to them. Generally, patterns are not copyrightable.

  • Quilting and how copyright law actually applies to them.

  • Registration of a copyright and what it does.

  • Registration Denied of a copyright and what it means to the author of the work.

  • Registration Proof as defined by the Tenth Circuit Court of Appeals.

  • Statutory Liability comments from the 9th Circuit Court of Appeals.

  • What is a Copyright?

  • What is not Copyrightable? according to the US Copyright Office

  • Willful Infringement and how courts define it and apply it.
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