How to lose your copyright in three easy steps

At a public forum today, an OpenSim grid executive told the audience that creators could lose their intellectual property rights if their work is copied.

This is a common — and harmful — myth that may keep creators from sharing their work.

In fact, you cannot lose your copyright if people copy your work — no matter how much it is copied. Your work will not fall into the public domain if someone copybots it or rips it.

Otherwise, all the record companies out there would have to stop suing downloaders (and they don’t). They keep their copyright even if a song is distributed on a thousand different networks and illegally downloaded a million times.

You also can’t lose your copyright if you don’t defend it. You can ignore violators for years — then come back later, and sue them all. Widespread infringement could reduce the market value of your work, and the courts could award you a smaller settlement, but the copyright would still be yours.

You don’t lose your copyright if you don’t register the work. You don’t lose your copyright if you distribute you work under a Creative Commons license.  You don’t lose your copyright if you give someone non-exclusive rights to your work. For more information, read “Copyright Myths” at PlagiarismToday. and the “Copyright Basics” from the U.S. Copyright Office.

Here is how you do lose your copyright:

1. Sell or transfer your copyright

If you sell or transfer your copyright to someone else, they now own the copyright. If you only license the work to them, then you retain the original copyright — they just get the right to use it according to the terms of license agreement.

The transfer of copyright takes place via a signed contract by the actual person who originally created the work or their authorized agent. In other words, if someone’s avatar tells you, “You can have the copyright to my work,” get it in writing. Otherwise, it’s not legally binding, and they can go after you later for infringing.

Similarly, if a Second Life creator says, “I give up, I’m sick of all this infringement. Do what you want. I hope you choke on it, you lousy hackers!” they’re not actually giving up their copyright. They’re just expressing their personal dissatisfaction. They can change their mind at any time, come back, and start suing people. Now, those other people may argue that “Do what you want” implied a license to use the work. It would be up to the courts to decide.

2. Sign a “work for hire” agreement

When you work for a company — or are a freelancer who signed a “work for hire” agreement — everything you create belongs to the company.

Again, this agreement must be legally signed. If it’s an avatar who says, “I’ll build this for you, and you have all the rights to it,” ask for a written, legal agreement signed by the actual person or their legal representative. Even Miley Cyrus signed her contracts with the name “Destiny Hope Cyrus” — until she legally changed it in 2008.

So unless your builder is actually, legally called “Flowerchild Elvenwhisperer” — which does happen — ask for their legal name on the work for hire contract.

3. Die and wait 70 years.

There’s one last way to lose your copyright. You can die, and then sit around and wait for 70 years. During that time, your heirs will get to enjoy your copyright. Though you probably won’t.

Actually, the length of time varies based on the country you’re in, whether you created the work as an employee of a corporation, or whether the work was created before or after 1978, among other factors.

So go ahead and take reasonable steps to protect your work. File DMCA notices against infringers. And don’t let the jackals get you down. Even if you can’t get them today, that doesn’t mean you can’t go after them tomorrow.

Losing a trademark

What you can lose, if it gets into common use, is your trademark.

This has happened to aspirin, escalator, butterscotch, zipper, yo-yo, thermos, and heroin.

Companies like Xerox, Google, and LEGO fight hard to avoid having their words become generic synonyms for “photocopy,” “search” and “building block.” They do it by reminding journalists and everyone else not to use the words generically, and trying to convince dictionary creators and trademark authorities that this hasn’t already happened.

Google in particular is having a really hard time at this.

 

 

 

 

maria@hypergridbusiness.com'

Maria Korolov

Maria Korolov is editor and publisher of Hypergrid Business. She has been a journalist for more than twenty years and has worked for the Chicago Tribune, Reuters, and Computerworld and has reported from over a dozen countries, including Russia and China.

  • Doreen Garrigus

    Thanks, Maria. I have found that folks don't properly understand the difference between copyright and trademark. I don't suppose you could write something on that?

  • Trademark — Usually short and related to your corporate branding. You can't copyright a book title, for example, but you can trademark it. You have to officially register a trademark in every separate country. It tends to be something that corporations do to protect their brands. It has to be unique. For example, if you make little virtual handpuppets you can't trademark "Virtual Handpuppets" but you can trademark your unique logo and your unique company name or brand name. Which is why company names and product names are getting weirder and crazier, and why the SciFi channel is now called "SyFy."

    Copyright — Any substantial creative work, at the moment you create it, is automatically copyrighted for you instantly, worldwide. You don't have to do anything. Tell anyone. You can stick it in the drawer. It's still yours. If you want to sue someone for damages in the US, however, you may want to register the copyright — the earlier, the better: http://www.benedict.com/Info/Law/Why.aspx

    You would typically do that if you expect to get a lot of money from your copyrighted work, and infringers can cause you serious financial damage. In the US, it will cost you $35 per application, and each individual work requires its own registration.

    More info here: http://www.copyright.gov/help/faq/faq-register.ht

    For most individual content creators (including freelance writers such as myself) the standard, free, copyright is usually enough. After all, if someone rips off one of my articles and reposts it, it is hard to prove any actual damage — was anyone really fooled into not going to HypergridBusiness.com but going to plagiarists-R-us.com — which is usually a link-bait content farm — and spending money there they would otherwise have given to me? Probably not. And the cost of the lawsuit would probably far exceed any damages I could recover. Instead, I simply file a DMCA with their hosting company, and the site is usually taken down the same day. (Thank you, Google alerts!)

  • There *is* a lot of confusion surrounding intellectual property law, so it’s great that you’re writing overview articles like this.

  • The Electronic Frontier Foundation has a link to Teaching Copyright, which was setup to help teachers present the laws for digital copyright to their students. Its pretty informative and easy to understand.
    http://www.teachingcopyright.org/

  • Hi Maria,

    it would be interesting to see a link to the statement of the "OSGrid executive", if possible. I find it hard to believe anyone among the OSGrid admins would claim such a thing.

    Also, on a related note, the concept of selling copyright is not by any means international, as in many countries (mainly european ones) it is simply not possible to "lose" your copyright at all, even if you wanted to.

    • Guest

       What the person probably MEANT by “you could lose your copyright” was probably just misstated and more likely it was intended to mean you could lose your items by copiers distributing them everywhere, and sure, you can try and sue a person but it all would be a laborious lengthy expensive proposition with a lot of headaches to track down 192 copiers across 16 different grids, all the free boxes, inventory that has been re-named, modified, used in other builds and objects etc.
      Then again, even if you sue someone, the court will look at the 500 linden dollar scarf you are claiming infringement on and determine it’s REAL value was 50 cents according to the L$ to real $ exchange, and probably award you about $35 USD and the person who has it in their inventory that you are suing is a 17 year old teen who lives with mom-dad, has no money anyway, doesn’t even own a region, and is in SL for free.
       Meanwhile you spent 6 months of calls, emailing, writing, faxing documents and paying $10,000 to a lawyer to get back a proverbial $35 from that one person, now there’s hundreds more out there.

      • Guest

         Another issue people don’t stop to think of is, when you SELL your items on SL, you had better be paying full income taxes on these as well as collecting sales tax as appropriate- it is all taxable income.

        For those who have not been paying taxes on this income, filing an infringement suit and going public would not only reveal your real full name and home address on public records- but the fact that you have been operating a for-profit BUSINESS for months, years, and if you are claiming you lost $5,000 USD this year due to people copying your 500 linden dollar scarf.
         The IRS will certainly be holding a magnifying glass over your head real soon, if not by reading about your unique case in the news- then the defendant could retaliate against you by REPORTING you to the IRS!
        The IRS can easily subpoena SL’s records on your account and easily prove the amount of money in income you took in and transferred to your checking account.
        This all would seriously open a huge can of worms and I suspect very few people who actually do sell things in SL and elsewhere are legally registered in their state as a BUSINESS, or putting that income on their tax forms. I would suspect even fewer are registered with their state’s sales tax board to collect the required sales tax for their state and submitting that.

        My view is, if you make something in SL, assume it WILL be copied at some point, make it reasonably priced and sell the hell out of it and enjoy the free cash it gives as long as it holds out. In other words, you spend say 6 hours creating a new cottage to sell and price it $L500  ($1)  and in the first 6 months you sell  1000 of them- you just made $1000 cash for 6 hours work, yer already ahead of the game by a whole lot when there’s 10 million without jobs or income, and a substantial number of people don’t even earn $15 an hour on their day jobs.
        Once the market dies on the first item for whatever reason- copybots etc, come up with a new/better product and ride that one as long as it holds out.
        The market for an item is limited, once everyone so inclined has the item, the only sales for that are going to come from NEW people- IOW you wont likely sell the SAME cottage or coat or dress to the same people who already have it in inventory.

  • Vanish — Not an OSGrid executive. Just someone else, running an OpenSim grid.

    You're right about some countries — in my work-for-hire copyright transfer contracts I include the phrase "The work is a work for hire in jurisdictions where applicable. In all other jurisdictions the Client acquires all rights to the work."

    • Aw, sorry, I misread that. My bad.

  • Winter Seale

    Incidentally, contracts (in the US anyway, and probably most other English common law countries) are legally binding no matter what name you sign them under. So if someone signs under their avatar name, they're still bound. You can even sue them by their avatar name.

    (Weirdly, I click Twitter to login, and it takes me to the OAuth page… and I click Approve there… and it comes back here and I'm still not logged in. =p)

    • Has that been tested in court? If say, your avatar verbally agrees to something, and you want out of the contract later, how is the other guy going to prove that it was you agreeing, and not somebody else using your avatar account?

      But you might be able sue an avatar though, again, this hasn't been tested in court.

      Here's what attorney Tre Critelli recently told me about this recently:

      Some background; a lawsuit is “served” when a copy is delivered to the proper person. This is called personal service. Individuals typically have to either be given a copy directly or via a representative such as their lawyer, an agent or an adult residing in the same home. If you can’t serve someone personally, then you can try to serve them via “publication” which generally refers to a notice in the local newspapers.

      Most states within the United States allow for service under a “consent to service” provision, which is typically a clause in a contract that specifies a particular way in which the parties agree that lawsuits can be served upon them. A consent to service might allow for service upon special person (such as a central administrator for securities brokers) or in specific form, such as via a facsimile or email. There would be no reason why service in a virtual world would automatically be excluded as long as all the other legal requirements could be complied with and both parties gave their explicit consent to service via that means. This would need to be more than just a simple line buried in the bowels of a terms of service or an end-user licensing agreement, however. Given its legal importance, it should be a stand-alone agreement. If there is a dispute later on, the first dispute will be whether or not service was properly effectuated—particularly if the person doesn’t respond and a default judgment is entered.

      With regard to the second circumstance, if a court orders that a specific form of service can be made then you may use that method. The hard part, of course, would be convincing the court that service via a virtual world would be appropriate. One method would be to ask the court would to allow you to file a “John/Jane Doe” (i.e. fictitious defendant) lawsuit, which would then give you the power of subpoena to find out information on a person’s identity. That would be the first thing to try, particularly in Second Life where Linden Research, Inc., would have account information, IP addresses, etc., which could help locate the person to be served. That is essentially what happened in the facebook case in Australia. They used the information gleaned from Facebook to help confirm the identity of the user.

      You would also have to show that allowable forms of personal service are either not applicable or were ineffective and then be able to demonstrate why service upon the person via a virtual world setting would be more likely to be successful. I would imagine that you would have to have some evidence that the avatar/account you wish to serve (a) is truly controlled by the person you are trying to serve ; (b) at an account that is accessed by them on a reasonable basis and (c) there can be some proof of deliverability of the notice and attached documents. Of course, you would then have to log on and actually serve them, i.e. get them to accept your inventory offer which might be hard to do if they “decline” your inventory offer!

  • Thanks for the article. __An important point to keep in mind is that an author CAN lose his right to sue a copyright infringer if he fails to sue that person in a timely manner. __Under 17 USCS § 507(b), civil claims brought under the Copyright Act must be “commenced within three years after the claim accrued.” Most circuits interpret this to mean that the suit must be brought within three years after the plaintiff discovers—or ought to have discovered through due diligence—that an infringement has occurred.