Howard Zaharoff, let me just say thank you for allowing us to interview you.

My pleasure.

Care to tell us a little about yourself?

I’m a lawyer with a serious interest in the literary world. I’m an addicted reader, and a pretty committed writer. Even as a busy lawyer I try to find time to write, anything from children’s stories to humorous essays to articles about the law for authors and publishers.

Today you will be talking to us about copyright. Let us start with the question, what is Copyright?

Copyright is the body of law that enables authors and artists to exploit their original “works of authorship” and prevent third parties from doing so without their permission. “Works of authorship,” protected by copyright law, include all manner of creative developments, from literary, pictorial and dramatic works to choreography, sculpture, architecture and computer programs.

What types of copyright infringements do you often see people committing?

The recent Supreme Court decision in MGM v. Grokster calls attention to musical file sharing, probably the most prevalent kind of infringement at the moment. But in terms of what I encounter directly, it’s more often people using, without permission, literary works downloaded from the Internet or software programs obtained from other users, sometimes even by businesses.

Must I obtain permission before I quote someone in an article?

If you’re talking about interviewing someone and reproducing the words they speak to you, almost certainly not (as long as they know you’re recording their words). If you’re talking about “borrowing” the written words of another, read my article on Fair Use posted on your site — J — but generally, taking a short sentence or two from a longer work for some legitimate purpose — news reporting, education, critique or commentary — is a fair use and may be done without permission.

What is the best way to obtain permission?

Ask the copyright owner and, of course, get the permission in writing. However, sometimes the trick is to figure out from whom to get the permission. It isn’t always the case that the person who writes a piece owns and controls the copyright. For example, if the writer creates the work as part of her employment by a third party, that third party is considered the author and copyright owner under the Copyright Act “work-made-for-hire doctrine, and you’d need to get permission from the employer, not the actual creator. Similarly, if Publisher A publishes my book, even if I continue to own the copyright it’s almost certain that the publisher controls subsidiary rights and must grant permission to excerpt or reprint portions.

If I said,” Howard Zaharoff is a funny man” in an article, would I need to obtain permission before I mention your name?

No. But be sure what you say about others is true, doesn’t defame them or put them in a false light, and doesn’t disclose embarrassing private facts — any of which could violate their privacy rights or constitute defamation.

Is it okay to copy a full news article that I found on a news site if I cite the source? Do I need obtain permission to republish the article?

It’s probably fine to include a link to that site and certainly okay to reproduce the url where the article is located. But you shouldn’t reproduce an entire article without permission. Quoting the source doesn’t help; it merely avoids the charge that you’re a plagiarist as well as an infringer.

Does the Copyright Law apply to news material on the Internet?

Absolutely.

What about images? If someone edits my photo without permission have they violated my rights?

Probably, but we’re back to fair use. If they’re cropping a photo that needs to be reproduced for an important, new-reporting purpose, or they’re using your photo to create a parody (as happened to the Annie Liebovitz photo of a pregnant Demi Moore that appeared on the cover of Vanity Fair in August 1991 — a parodic reproduction was created by Paramount Pictures to announce the coming of their next Naked Gun movie), it may be a fair use. Then again, it may not — it all depends (don’t you hate when lawyers tell you that!).

How do I find out whether a piece of work is in the public domain?

That’s tough, since there’s no central repository for that information. Basically, anything created by employees of the U.S. government, and anything created before 1884 or published in the U.S. before 1923, is public domain. (For more information on the term of copyright protection, see www.copyright.corne ll.edu/training/Hirtle_Public_Domain.htm.) Besides works for which copyright has expired or never existed, look to see what the publisher/author says, but take that with a grain of salt: Since there is no formal process for dedicating works to the public, nothing necessarily prevents someone who says they’re donating their works to public use from revoking that dedication. In other words, I’d treat someone saying his or her work is public domain like getting a terminable license — you’re probably fine until you’re told that your rights have expired, so don’t get too reliant on continuing use of the work since that could change.

Does a writer need to copyright their work?

Actually, your original work is automatically protected by copyright from the moment you fix it in tangible form — handwrite that poem, record that tune, photograph that scene. However, you should include a proper copyright notice on all published copies of your work and should consider registering at least your important works. In the U.S. you need to register your work — a cheap and simple process — before you can sue for infringement, and registering your work before the infringement occurs dramatically improves your remedies.

If we add the copyright symbol to our work does it protect us?

Yes, mainly by preventing potential infringers from claiming that they had NO IDEA the work was protected by copyright.

What about the old myth of putting your work in an envelope and mailing it to yourself. Can this prove as evidence in court?

Sometimes. Registering the copyright is probably more reliable, since it establishes a governmental record that would be harder to tamper with (compared to steaming open a sealed envelope and resealing it after changing the contents — but maybe I read too many, or not enough, mysteries).

Is copyright infringement a crime, or a civil matter?

In most cases it’s purely civil, but certain willful activities are criminal. For example, willfully infringing a copyright either (i) for commercial advantage or private gain, or (ii) by reproducing during any 180-day period one or more copies or phonorecords of one or more works with a total retail value of more than $1000 may be punished by fine or imprisonment.

Are emails copywritten? What if one is using those emails as evidence against harassment?

Emails are protected by copyright, but use to prove harassment would normally be considered a fair use. But I would recommend not reproducing more than you need to to prove your point.

What is a “work for hire”?

This is a work prepared by an employee within the scope of his or her employment OR a specially ordered or commissioned work for which there is a signed writing indicating it is meant to be a work made for hire and falling within one of 9 statutorily-enumerated categories, including audiovisual works, tests and atlases. The thing about works made for hire is that it is the employer or party commissioning the work, rather than the individual who creates them, who is considered the “author” and owns the copyright.

Can facts be copywritten?

No, but an original selection or arrangement of facts can be (thus, not an alphabetized white pages directory, but possibly a yellow pages listing of all Chinese-owned or operated businesses within a 2-mile radius. But again, it’s the selection and arrangement, NOT the underlying facts, that receive protection).

Where might one go to learn more about copyright?
 

An article I wrote as an introduction to copyright will be published by Writer’s Digest in its October 2005 issue. But there’s a wealth of excellent information one the web, including at the Copyright Office website (www.copyright.gov ), at http://inventors .about.com/od/copyrights101basicsfaq/f/copyrights.htm and at http://www.patents.com/copyrigh.htm.

Thank you Howard for taking time out of your busy schedule for me.

You’re very welcome.

Howard G. Zaharoff is a shareholder of Morse, Barnes-Brown & Pendleton, P.C. with over 20 years experience in intellectual property, technology and publishing law. His practice focuses on information and technology businesses, including Internet and e-commerce companies, publishers, software companies and interactive media firms, as well as authors and consultants.

Howard writes frequently on legal topics and his articles have appeared in Publishers Weekly, Folio:, The Writer, Writer’s Digest, The Computer Lawyer, Computerworld, The Boston Globe and Mass High Tech. He currently serves on the editorial boards of The Boston Bar Journal and Intellectual Property & Technology Law Journal. Howard also serves on the Boards of Directors of Zephyr Press and the Harvard Startups. Previously he served on the Board of Trustees of the Volunteer Lawyers for the Arts; was a director of The Writers’ Room of Boston; and co-chaired the Boston Bar Association’s Arts and Entertainment Law Committee (1996-1998), Computer and Internet Law Committee (1997-1999), and Intellectual Property Section (1999-2001).

Howard has spoken on publishing law issues before the Copyright Society of the U.S. (New England), National Writers Union, Society of Children’s Book Writers and Illustrators, Harvard Medical School Department of Continuing Education, New England Translators Association and Greater Boston Rights and Permissions Group. He has also spoken on technology and intellectual property topics at the Massachusetts Software Council, Massachusetts Interactive Media Council, Technology Transfer Society, Harvard Business School and Boston University School of Management, among other forums.

Howard graduated magna cum laude from Lafayette College (1973), earned an M.A. and Ph.D. in Philosophy from The Johns Hopkins University (1975 and 1979), and graduated magna cum laude from Harvard Law School (1980).

From their offices on Route 128, Morse, Barnes-Brown & Pendleton, P.C. provides legal counsel to established and emerging companies, their founders and investors, and individuals with business, contractual or intellectual property needs. Their expertise includes startups; venture capital and private equity; business contracts and technology licensing; intellectual property protection; employment and immigration; tax counseling; public offerings; and mergers and acquisitions. The firm is structured to provide a responsive, practical, creative and cost-effective alternative to large “full service” firms.
To contact Howard you can e-mail him at:hgz@mbbp.com

About the Author: Rose DesRochers is a published poet and freelance writer. Rose has been writing poetry for more than 20 years. She is also the founder of http://www.todayswriting.com , a supportive online writing community  and http://www.bloggertalk.net  a community where bloggers connect.

Visit her new blog at http://rosedesrochers.todays-woman.net