What’s Yours In Mine: Intellectual Property and Copyright For the Magazine Media Publisher Jim Sawtelle Partner and Co-leader, Media, Publishing and Marketing.

What’s Yours In Mine: Intellectual Property and Copyright For the Magazine

Media Publisher

Jim SawtellePartner and Co-leader, Media, Publishing and

Marketing GroupBryan Cave, LLC

Intellectual Property and Copyright

Only one thing is impossible for God: To find any sense in any copyright law on the planet.

Mark Twain


• Copyright Basics– Title 17 United States Code– Copyright Act gives the owner exclusive

rights to:• Reproduce the work• Prepare derivative works• Perform the work publicly• Display the work publicly


– Who Can Claim Copyright?• The author• Those deriving rights from the author• The employer of the author, if a “work made for

hire”


• What is a “work made for hire”?– A work prepared by an employee within the

scope of their employment; or– A work specially ordered or commissioned

for use as:• A contribution to a collective work• Others specified uses, including A/V work


• What Works Are Protected by Copyright Law?– Literary Works– Pictorial or Graphic Works (photos)– Musical Works– Motion Pictures and other A/V Works– Sound Recordings


• Doctrine of “Fair Use”– Limitation on Copyright Protection– Copyright Act contains a list of the various

purposes for which the reproduction of a particular work may be considered fair • Criticism• Comment• News reporting• Teaching• Scholarship• Research


• Doctrine of “Fair Use”– Factors to Consider

• Purpose and character of the use, including whether commercial 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• The effect of the use upon the potential market for, or

value of, the copyrighted work


• Doctrine of “Fair Use”– What is fair use and what is infringement in

a particular case will not always be clear – There are no specific number of words,

lines, or notes that may safely be taken without permission

– Acknowledging the source of the copyrighted material does not substitute for obtaining permission or make it “Fair Use”


• How to Secure a Copyright– No registration in the Copyright Office is

required– Copyright is automatically secured when

the work is “created” (fixed in a tangible form of expression so that it can be perceived)


• What Works Are Not Protected By Copyright Law?– Titles, Names, Slogans– Ideas, Procedures, Methods, Concepts– “Common Property”

• Calendars• Height and weight charts• Measures


• Publication

– No longer required to secure protection

• May be important for other reasons (i.e., may determine the duration of protection)


• Notice of Copyright: ©– No longer required to secure protection – Why include ©?

• Informs public that the work is protected• Identifies the copyright owner• Shows date of first publication• Defeats defense of innocent infringement

– No permission required from Copyright Office before including notice.


• How Long Does Copyright Protection Endure?– Author’s Life + 70 years (post 1/1/78)– “Works made for hire”

• 95 years from publication, or• 120 years from creation, whichever is shorter


• Transfer of Copyright– Some or all of owner’s exclusive rights may be

transferred– Most common forms of transfer

• License• Assignment

– Transfer of exclusive rights must be in writing and signed by owner or their agent

– Transfer of nonexclusive rights may be enforceable though not in writing

– Need not be recorded with Copyright Office, but may be advantageous to validate rights, re: others


• International Copyright Protection– No such thing as an “International

Copyright”– Protection depends on the national laws of

that country– Most countries do offer protection of

foreign works


• Copyright Registration with U.S. Copyright Office– Not a requirement for protection– Advantages to registration

• Public record of copyright claim• Necessary in order to file infringement suit• If before or within 5 years of publication, prima facie

evidence of validity• If within 3 months of publication or prior to infringement,

statutory damages and attorneys fees are available• Allows protection against importation of infringing copies

through registration with U.S. Customs Service


• Registration Procedures– Online: www.copyright.gov– Paper– Required submissions:

• Application Form• Filing Fee• Deposit

– Cost: $35-65

http://www.copyright.gov/


• Frequent Legal Issues for Publishers– Properly obtaining legal rights from

authors.– License– Assignment (complete ownership)

• Best Practice:– Adopt and maintain good contracting / licensing

practices before accepting work for publication


• Frequent Legal Issues for Publishers– Protecting copyrights obtained/controlled

• Use of Copyright Notice:

© (date of pub), (name of owner)• Registration

– Required to bring suit for infringement

• Best Practice:– Implement proper systems for protecting owned or

controlled copyrights


• Frequent Legal Issues for Publishers– Infringement

• When work acquired contains infringing material (innocent infringement)

• When others are infringing on copyright controlled by publisher (enforcement)

• Best Practice:– Due diligence to contributors with appropriate

representations and warranties– Cease and desist measures directed at infringer


• Remedies for Infringement– Injunctive Relief– Statutory Damages– Profits– Attorney Fees

What’s Yours In Mine: Intellectual Property and Copyright For the Magazine Media Publisher Jim Sawtelle Partner and Co-leader, Media, Publishing and Marketing.

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