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The CSAE Annual Conference, scheduled for June 16–18, is nearing. If you are looking for great problem-solving ideas, new ways to generate revenue and a fresh look at your association, you need to attend. Learn more...
It's official! HB 05-1059, drafted to correct problems from last year's fax bill, was signed by Governor Owens. This important piece of legislation initiated by CSAE creates a significant and overdue exemption from the no-fax provisions in the Colorado Consumer Protection Act for an "established business relationship" between fax sender and fax recipient. Learn more...
What does your association need to know about copyright law? Adrienne McNamara and Peter Kinsella uncover the basics. Learn more...
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Special thanks to all CSAE members who contributed financially; to Brandeberry-McKenna Public Affairs who represented CSAE; John Sadwith, who orchestrated details on this bill; to Bill Walters for his insight and guidance; Greg Williams, our public policy committee chair; the entire public policy committee who worked diligently on this project; Sam Albrecht, CAE, CSAE's president and the entire leadership for embarking on this project. This victory is important to CSAE members for several reasons:
Jim Clarke, Public Policy, American Society of Association Executives called CSAE personally to say, "Congratulations on this big win! What a great job. You guys took what was the worst and now have really made it so much better. You should feel great. We (ASAE) really appreciate your help in keeping the fire burning in our efforts."
The passage of this measure did not come about easily. CSAE is the organization that originally identified the potential liability issues for members in the no fax bill that passed in 2004. Now, with the passage of HB 05-1059 the immediate threat is over. Please watch your email for further details on what this revised legislation means to you.
This proves that by working together we can make a difference. CSAE thanks the following individuals and companies for supporting this issue:
What do copyrights protect?
Most people associate copyright protection with books, music, and movies, but copyrights actually cover all “original works of authorship,” including everything from computer software to architecture.
Copyrighted works must also be “fixed” in some way. For example, a live speech at a fundraising dinner is not copyrighted. But any recording of the speech – videotape, audiotape, handouts, etc. – qualifies for copyright protection.
Does a work have to be registered to be protected?
A work is protected once it becomes “fixed.” For example, as soon as a speech is recorded, the recording is protected by the copyright law. The work does not have to be registered in order to be protected.
Does a copyright notice need to be used to protect the work?
As of March 1, 1989, a work is entitled to copyright protection even if it doesn’t carry a copyright notice. Therefore, copying a work that doesn’t have a copyright notice may still be infringement.
How are associations affected by copyright law?
Associations often create and distribute original creative products, such as educational materials, marketing brochures, videotapes and CD-ROMs for sale to members and others. As such, it is critical that an association be familiar with its rights under copyright law – and be sure it resolves copyright ownership and licensing issues before publishing materials. This is particularly significant for associations that rely on material (such as written articles or photographs) created by outsiders.
Associations also need to be concerned with copyright infringement – namely, making sure that employees or volunteers do not subject the organization to litigation or damages through a pattern of making unauthorized copies of copyrighted works. Even among large organizations, infringement can be common, whether by installing unlicensed software on computers or by reproducing books, articles, or other documents without permission. Organizations should educate employees about copyright law and consider establishing guidelines or policies to ensure compliance.
Who owns a copyright?
Normally, the person who creates the work owns the copyright. However, if the work is created by an employee in the scope of his or her employment, then the employer owns the copyright, absent any agreement to the contrary. Such works are known as “works for hire.” But this designation would generally not extend to materials created by volunteers, consultants or association members. Even when dealing with paid freelancers hired for association projects, such as a graphic artist designing an invitation, the association must obtain a copyright assignment if it does not wish to have the freelancer retain ownership of the materials and potentially re-use the same concept with other clients.
Remember that buying a work doesn’t mean you buy the copyright, unless you sign an agreement to that effect. Even if you purchase an original work of art, for example, you don’t simultaneously purchase the copyright. The artist retains the copyright, and you can’t make or sell copies of the work without permission.
Associations need to be particularly careful when dealing with outside speakers. An association should consider at the outset whether it wishes to actually own the speaker’s materials or simply needs to have a license to use the materials for certain purposes (i.e. republishing handouts, audio, or video tapes, or including excerpts of a speech on the association’s website or in its newsletter). A key factor in making this decision will be whether the speaker will have rights to re-use his/her speech for other purposes.
What is “fair use”?
The concept of “fair use” is a defense that can be raised to a copyright infringement charge.
Whether the doctrine of fair use protects a given instance of copying is difficult to predict, but here are some guidelines:
Uses that are of a commercial nature are much less likely to be protected than those for non-profit educational purposes; reproductions of highly creative works are less likely to be deemed fair than copying of factual or descriptive works; the greater the portion of the work copied (quantitatively and qualitatively), the more likely that the use is unfair; the more the use will usurp the copyright holder’s market for the work, the more likely it is unfair. In general, verbatim copying is disfavored and is fair use only when just a small portion of a work is quoted (as in a book review), and then only if it does not constitute the “heart” of the work. Verbatim copying of all or even a significant portion of a work (including reproduction of a photograph) is held to be fair use under only extraordinary circumstances.
There are rarely black-and-white answers when analyzing fair use. The only way to have certainty is to ask permission.
What are the penalties for copyright infringement?
They’re steep. Both the organization where the infringement takes place and sometimes even the individual who makes the copies may be liable. For registered works, a copyright owner may seek damages as high as $30,000 per copied work and $150,000 if the infringement was “willful,” in addition to attorneys’ fees and costs.
Do the same copyright laws apply to the Internet?
Yes. Just because works are available on the Internet does not mean they are in the “public domain.” Works published on the Internet enjoy the same copyright protection as other works, and copying a copyrighted work from the Internet without permission of the author still constitutes infringement.
Conclusion
Because this is a complex area of law where minor fact differences can dramatically change results, associations should contact counsel for advice in specific situations.
Adrienne McNamara and Peter Kinsella represent associations and other nonprofit organizations and are experienced with copyright and other intellectual property issues. They practice at the law office of Faegre & Benson in Denver and can be reached at 303-607-3500 or by e-mail at amcnamara@faegre.com and pkinsella@faegre.com. For more information on copyrights and other legal issues, go to www.faegre.com.
The information in this article is informational only and is not intended as legal advice. If you have a question or legal topic you would like to see addressed in this column, please contact the authors.
© 2005 Faegre & Benson LLP. All rights reserved.
