Copyright

 **The Student Media Guide To Copyright Law** Copyright law can be both the friend and foe of student media. While the law protects student journalists against the unauthorized use of their stories, drawings or photographs, it also limits their ability to reproduce the works of others. The following guide, which explains the basics of copyright law, should provide student journalists with most of what they need to know to both safeguard and exercise their rights.


 * What Is Copyright?**

Copyright is a set of federal laws, stemming from Article I, Section 8, Clause 8, of the U.S. Constitution, which grant authors and artists the exclusive right to benefit from their creations.

The basics of copyright are fairly straightforward. A copyright is a property right. A person owns a copyright in much the same way he owns a car. Just as it is against the law to use or borrow someone else's car without the owner's permission, it is generally against the law to use someone's copyrighted work without first obtaining her consent. Additionally, just as no one but the automobile owner can legally sell, give away or change the appearance of a car, no one but the copyright owner, with a few exceptions, may legally transfer or alter a copyrighted work.

Copyright law encourages and rewards the creativity of authors and artists. If, for example, members of the public (or a movie studio) could freely copy the novel “Interview With the Vampire” without compensating or obtaining permission from author Anne Rice, she and other authors would likely be unwilling to invest the time, energy and resources necessary to create books in the first place. Copyright, therefore, ensures a robust collection of original works available for public enjoyment and benefit, which is its main goal.


 * Relationship to Trademark and Patent Law**

Copyright is just one means of providing legal protection for creative works. Patent law protects inventions. Trademark law protects the symbols and slogans that identify businesses to their consumers. Together with copyright, these two comprise the area of the law known as intellectual property.

Patent law issues should cause little or no problem for the student media. You do not, for example, violate a patent by publishing information about a new invention or explaining -- even in very specific detail -- how something works.

Likewise, trademark law presents relatively few concerns for the student media. While copyright protects a creator's rights, trademark law should be viewed more as a protection for consumers. Trademarks -- for example, the Nike "Swoosh" symbol, the brand name "Coke" or the yellow Kodak film box -- and service marks -- for example, the "Golden Arches" used to identify a McDonald's restaurant -- are unique symbols, names or other "marks" that companies use and consumers rely upon to distinguish one product or service from another. Trademark law is generally only a problem when a trademark or service mark is used in a way that would confuse a potential consumer. For example, it would be a trademark violation for the El Cheapo Shoe Company to start putting a "Swoosh" symbol on its tennis shoes. If this were allowed, buyers might purchase El Cheapo's tennis shoes thinking they were actually Nike brand tennis shoes, which clearly would not be fair to either the consumer or Nike. If, on the other hand, there is no likelihood that a consumer would be confused by the use of a trademark, there is generally no violation. That's why, for example, there would be no problem in a student yearbook publishing a photograph of a pair of Nike shoes (complete with the "Swoosh") to illustrate a feature story on popular footwear worn by students. There is, obviously, no likelihood that a consumer would pick up the yearbook thinking it was a Nike shoe -- or, if published in the context of a "regular" news story, even an official Nike publication.

Note, however, that some works are protected by both trademark and copyright (and maybe even patent) law at the same time and you will need to analyze your intended use under each. If the editor above wanted to use a flashy Nike ad simply to "decorate" an inside page (and not as part of a legitimate news story), the outcome would be different. Again, there would be no trademark problem. A student yearbook and athletic shoes are so different that no consumer would be confused by the use. However, the ad is also copyrighted and its unauthorized use will be prohibited unless the editor demonstrates a "fair use," which is unlikely here since the advertisement is being used as simply a page design graphic rather than to illustrate an actual news story (for more information on "fair use," see the discussion the below).

There are only two instances in which trademark protections typically concern the student media. Unfortunately, a detailed discussion is beyond the scope of this article, but they are worth keeping in mind. The first issue arises when a student media attempts to use a name already in use by a competing media or entity, or vice versa. For example, a new independent student publication wishing to call itself The Independent Daily Student may have a trademark problem if the existing official student publication is already called The Daily Student. The Daily Student would argue, and probably rightly so, that both its readers and advertisers could be confused by the name of the competing publication. Recently, interesting questions regarding the use of domain names to identify companies or other entities conducting business on the Internet, including on-line media, have started to surface.

A second -- and potentially more troublesome -- branch of trademark law for the student media is that of trademark dilution. Trademark dilution statutes generally prevent the use of a mark by a non-owner if such use would whittle away at the distinctiveness of or otherwise "tarnish" an existing mark. Unlike traditional trademark infringement claims, it is not necessary that the owner show a likelihood of confusion. For example, the Coca-Cola Company was successful in preventing a T-shirt maker from printing shirts with the slogan: "Enjoy Cocaine," in the well-known Coke script and typeface. Clearly, no reasonable person would have thought they were purchasing a shirt made by the Coca-Cola Company. Rather, the court found that the T-shirt slogan tarnished the reputation of the famous Coke trademark. While most state statutes and the new federal Trademark Dilution Act do not allow prosecution in cases involving news commentary and news reporting, the protections for other uses (such as a parody) are not yet certain.


 * What about Plagiarism?**

Plagiarism is not a legal term. It is a term for an academic crime, usually defined by professional or academic bodies. Simply stated, a plagiarist is a person who poses as the creator of words, ideas or methods that are not his own. In contrast, a person infringes on another's copyright when he makes unauthorized use of material that is protected by copyright. For example, a person could plagiarize Shakespeare's works by not giving the Bard proper credit. He would not, however, be guilty of copyright infringement because all of Shakespeare's works, now about 400 years old, are in the public domain and cannot be protected by copyright. You will not be punished by a court of law if you are found guilty of plagiarizing someone else's work, but you might be subject to punishment or censure by your publication staff. And you should certainly be embarrassed.


 * What Does Copyright Protect?**

Copyright protects literary works, sound recordings, works of art, musical compositions, computer programs and architectural works, provided that the work satisfies certain requirements.

First, the work must be original. This means that the author must have shown at least a small spark of creativity when she made the work. For example, courts have said that simply arranging listings in a telephone book alphabetically according to the last name of the phone service subscriber lacks the creativity necessary to qualify for a copyright.

Second, the work must be "fixed in any tangible medium of expression." This "fixation" requirement means that only works preserved in a tangible form (a book, a newspaper, a video, a CD-ROM disk, etc.) -- as opposed to those existing entirely in an artist's mind -- will receive copyright protection.


 * What Cannot be Copyrighted?**

Copyright does not extend to some forms of expression, even though they are arguably original and fixed. Slogans, titles, names, words and short phrases, instructions, lists of ingredients and familiar symbols or designs are generally ineligible for copyright because they lack the necessary originality and creativity necessary to distinguish them from the ideas they represent. For example, the words in Nike's slogan "Just Do It" cannot be copyrighted and therefore could be used as a headline or tag to illustrate a photo collage of school athletes in a high school yearbook. The actual slogan (words in special typeface with "Swoosh" logo) probably cannot be used -- barring permission or a "fair use" argument -- because unlike the three "bare" words, the design of the ad is sufficiently creative and can be copyrighted.


 * Facts/Ideas Not Subject to Copyright Protection**

Copyright law also recognizes a distinction between "expression" and "ideas." Only creative expression, and not mere ideas or facts, qualifies for copyright protection. So while Time magazine will have a copyright in the exact words and arrangement of an article on teen drug use, the facts discovered in Time's reporting belong to no one and can therefore be used as a source for other reporters. Additionally, ideas, thoughts or scientific research are not -- by themselves -- subject to copyright protection, though the description of such ideas, thoughts or research may be.

© //Student Press Law Center//