Copyright and Intellectual Property
Friends, on literally all and any of the ME groups that I belong to, seems like this is the most controversial topic with various opinions on all sides. The last couple of days, I have received so many emails pertaining to this topic particularly where ME is in relation to the term. I have tried below to explain in the most simplest of words what the whole mystery is about.
Personally the term to me means respect of the creator and their work. The term as in a legal sense means “an exclusive right granted to regulate the use of a particular expression of an idea or information”.
“The 1886 Berne Convention first established recognition of copyrights among sovereign nations. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not “register” or “apply for” a copyright in countries adhering to the Berne Convention. As soon as a work is “fixed”, that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.”
This right is of a certain duration. “The length of the copyright term within the United States was extended by the Sonny Bono Copyright Extension Act which made the copyright term the life of the author plus 70 years for works created after January 1st, 1978. In the case of a work of corporate authorship (a.k.a. “Work for Hire”) the term will be 95 years from the date of first publication or 120 years from the date of creation, whichever expires first.”
In the United States, copyright is an automatic once a idea has been given a tangible form, according to the Berne Convention Act. Copyright need not be granted or obtained through official registration with any Govt office. Once an idea has been reduced to tangible form (ME designs) the copyright holder (the creator of the idea) is entitled to enforce exclusive rights.
So, while a copyright need not be officially registered for the copyright owner to begin exercising exclusive rights, registration of works does have benefits. It serves as evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney fees. Whereas registering after an infringement only enables one to receive actual damages and lost profits. “It is important to understand that absence of the copyright symbol does not mean that the work is not covered by copyright. The work once created from originality through ‘mental labor’ is instantaneously considered copyrighted to that person.”
** Some of the quotations in above paragraphs are direct excerpts from the US Copyright office.
What is the copyright of a machine embroidery design. When one purchases a ME design, all one is purchasing is the license to stitch out the design. The actual design itself is always in the copyright of the one who created it. The license grants the purchaser the right to stitch it on personal and for sale items (please do check with individual designers to see their conditions). The license cannot be passed on without letting the owner know about it. If someone purchased a designs collection from me and then decided they didn’t like it, they cannot sell it,cannot give it away, cannot distribute it without asking me first. This is because the actual original design has not been purchased rather a copy of the license. A ME design is not the same as a book. A book purchased may be read by you, your friend etc etc but the purchase of a ME design is a license only to one person.
Deviations from original works of someone else like copying over stitches is considered infringement. Most digitizers have a unique way of creating their works. There is no way that two different people can ever achieve the same stitches unless they were both using an autodigitizing software.
Tips for ME Digitizers in protecting their works:
Please understand that these are only my thoughts and my opinions and by no means are they to be considered the final word. However, being in the business for seven years now I have dealt personally on a legal and personal matter repeatedly with infringers of my copyrights. These are only tips that I give to others to help them in securing their works in as close to a legal frame of mind as possible.
It is NOT important to have your works registered with the copyright office. The right is given to you automatically once you have created the designs. But, before I go any further, I will say a few words about automatic copyright. Make sure that the artwork used is copyright free work. Just because you purchased a Dover publication book which said royalty free artwork, that does not mean that it is copyright free artwork. Royalty free is a totally different scenario than copyright.
Make sure that all original work files are recorded by date and burned onto a media that cannot be altered like a CD. A file on a hard drive can be altered by date and time but a closed Read only CD once written to cannot be altered. The date and timestamp becomes your original copyright proof. Make sure you have a list of all your works and a legal document prepared citing your heir to the copyright. This could be an addendum made to your will. After all, it is your work, protect it.
Rights of purchasers of ME(please also read purchasers of IP blog):
Your license to stitch out the design is yours forever. It does not prevent you from changing colors, merging another design to the original design. What in referred to infringement is when you take the purchased design, merge it with portions of your own work and then distribute, sell, trade etc. You can stitch the design on items for yourself or for sale. There are a few designers who have restrictions but mostly Home digitizers are more than happy to have customers use their designs on items for sale.
Copyright of ME designs is respecting another and their work. Myths have it that sharing a design does not take away anything from the designer as the sharer would never have purchased the item and therefore it is not any income lost. This is not true. Sharing of digital files is an offence and if discovered can lead to fines and or lawsuit. The right of the designer is taken away when someone shares. Do not be led to believe that nothing can be done legally against those who share. Please note that I am not referring to one or two small sharing offences with siblings, etc rather I’m referring to sharing massively on newsgroups, private groups, internet private sites etc. Every day, the US Govt is making new laws pertaining to Intellectual property. The internet and the cyber crime of IP is getting bolder and bolder. Have a read at the Cyber Crime site: http://www.cybercrime.gov/ to see cases of infringement of IP that are persued every day.
Myths also have it that if you use cloaking softwares and share massively, no one will find you. The US govt is taking steps in increased funding the Internet crime division every day. This means that there might be govt agents deliberately set up to watch groups where active sharing occurs. No, they do not have set ups to entrap, they are not there to place bots in your computers etc. But they are there monitoring regularly. Everyone is human and humans make mistakes…one little slip can cost someone a lot. I know this, believe in this and am sure of it 100%. Why you would ask. Only because I believe in the good conquering over evil at all times.
In end, I leave it up to all to determine what is right and wrong. The knowledge is given to you, how you read it is your right. The laws are clear and consistent. To sidestep the laws, well, in my experience of dealing with those who did….it does not pay.
Sadia, since you are so knowledgeable about IP and US copyright law, I was wondering if you could clarify something about section 407 and how that might apply to digitizers who publish their designs in the US.
Are published machine embroidery designs on CDs exempt from mandatory deposit to the Library of Congress, or do digitizers have to comply with the mandatory filing of designs with the Library of Congress as identified for published works under copyright law?
Mandatory filing is, of course, separate from someone wishing to Register their copyright per se under section 408, although there is a way per the gov’t website to meet both the Registration (section 408) and Mandatory Filing (section 407) requirements with one submission, if one wishes to do that.
The exemption list for section 407 published on the gov’t website mentions some works specifically that are exempt, but I wasn’t sure about machine embroidery designs. There are many categories of exemptions, and it seems more exist for visual arts than for works that fall under computer program definitions.
I’ve never seen this question come up elsewhere, and maybe it is otherwise common knowledge–but I wondered about that. I’ve posed the question to other digitizers elsewhere and they seem unaware that section 407 even exists.
The gov’t website identifies general category exemptions for deposit to the Library of Congress and then has the ability to offer specific relief responding to individual requests for same.
Do digitizers have to send CDs of their published works to the Library of Congress to deposit them per section 407 or are they exempted from having to do that on a category or individual basis?
If there is a category exemption, do you know where it is noted in the many, many pages of legal text?
I don’t digitize at this time, but would love to know the answer to this for future reference. Obviously with rights come responsibilities, and compliance with any depository requirements in the Library of Congress under law could be one of those for digitizers, unless there is an exemption currently in effect.
Trying to get through to the Information Specialists at the Copyright office has thus far been unsuccessful–their lines seem busy non-stop!
TYIA for any insight you might be able to share.
Hello Stephanie, first of all, thank you for thinking I’m so knowledgeable. As far as filing for copyright, I’m not sure I completely understand why any ME designs already in publication would be exempt. Copyright occurs when the creation of an idea is presented and it is automatically given to the creator by law at that time. Filing for registration is only if one cares to pursue the right via the legal system, in a court of law. At that time, although it still is not mandatory but it helps in collection of fines and costs, present and past. I’m not sure which digitizers you have communicated with but mostly any of the legitimate digitizers would answer you the same that I have. So, although it is a good thing if you can register your work, however, it is not going to prevent the infringement. For pursuing infringement you will need a whole bunch of money and a good internet copyright lawyer.
In registering it is important to send in all artwork, work files, as well as any distinguishable markings etc in a three dimensional form (this can be photographs as well as stitched out works). One does not need to visit the Copyright office to gather all the information, one can get it by the internet. Hope this helps. Hugs, Sadia
TY, Sadia, for all you have mentioned so far about filing or not filing a Registration for Copyright in the US under section 408–very good points. I think some of those points are very helpful for others to know and I respect that you have shared that knowledge with others.
I’m a scientist and not a lawyer, so I read the entire content on the web from the perspective of wanting to be very clear on procedures for anyone who creates IP that is subject to copyright, whether or not it is published and then whether or not is is registered with the Copyright Office.
I have read section 408 and per my first post, my question is not per se about section 408 (filing for Registration of Copyright).
My question is only about compliance with section 407, which indicates it is MANDATORY to file with Library of Congress to go into their vast collections ANY PUBLISHED WORK per the gov’t definition of copyrightable published works, UNLESS a published work is EXEMPT either by category (there is a list of them on the website for the gov’t and, for example, greeting cards are exempt, and a host of other categories are exempt). One has to file within 3 months of publishing a work (there are six (6) very broad categories of publication and they encompass all sorts of IP).
Digitizers have stated that their right to copyright falls under either a category of COMPUTER PROGRAMS or VISUAL ARTS.
This is what the gov’t in the USA says about what constitutes a published work eligible for copyright registration (you don’t have to register it, but if it isn’t eligible for registration then it cannot be considered to be under any form of copyright). (This is a direct quote from the copyright website, but I added the caps):
“Published Works” include six broad categories:
“Literary Works (book, manuscript, online work, pamphlet, poetry, report, test, automated database, COMPUTER PROGRAM, or other text)
VISUAL ARTS (pictorial, graphic, or sculptural work, including 2-dimensional and 3-dimensional work of fine, graphic, and applied art. Also, register architectural work. )
Performing Arts (musical work, dramatic work, script, pantomime, choreography, motion picture, or other audiovisual work. )
Sound Recordings (recording of music, drama, or a lecture)
Serials/Periodicals (periodical, newspaper, magazine, or other similar work.)
Mask Work (this protection relates to integrated circuits on a semiconductor chip)”
Section 407, the mandatory deposit of works into the Library of Congress, identifies that it is SEPARATE from whether or not one files under section 408 for Registration of Copyright.
In other words, unless exempted, one is morally and legally bound under Section 407 to DEPOSIT a copy of one’s published works (per the gov’t definition of published works and that is the broad definition above) regardless of whether or not one chooses to File for Registration of Copyright under section 408 (again, it is possible to dovetail here under particular wording and do both simultaneously if one so chooses by following directions on the website).
So my question is NOT about filing for Registration of Copyright at all under section 408.
My question is totally about Depositing items into the Library of Congress as mandated in section 407.
Do digitizers have to follow the mandate of section 407 and send a copy of their digitized designs on CDROM into the Library of Congress for DEPOSIT only per that section 407 of the law, or is there an exemption for machine embroidery designs–be it either a category exemption or an individual basis potential exemption?
I did NOT see that machine embroidery designs were exempted from Deposit into the Library of Congress under section 407 when I read the exemption list published on the web, but there may be more exemptions elsewhere I am a scientist and NOT a lawyer, so that is why I hoped to find out if there is more specific information about this somewhere).
Section 407 has to do with the Library of Congress having access to anything that falls under copyright and section 407 is MANDATORY per the website (UNLESS there is an EXEMPTION in place–the Library can choose NOT to collect a category of published works or allow some individual exemptions if it so chooses), whether or not anyone ever files for Registration of copyright under section 408, which is OPTIONAL.
As a scientist I am eternally curious. I have never seen anyone address section 407 on discussion boards (the responsibility to DEPOSIT items per that part of the law), and frankly I am still wondering how section 407 of the law applies to digitizers. Digitizers wanting to comply with the law must have gotten a definite answer on this since they make statements of their copyright all of the time and publish their works all of the time. With rights come responsibilities, so either the category of machine embroidery is considered exempt from deposit because some ruling to that effect was released and can be found somewhere, or else each digitizer has to request individual exemptions.
If the category is exempt from DEPOSIT under section 407, do you know where in the code that exemption can be found? If there is no category exemption, then digitizers must be busy either filing for exemptions, or else burning CDROMS to make the required deposits to the Library of Congress by those 3 month deadlines………I’m just wondering which it is?
Stephanie
Hello again Stephanie. You’ve answered your own question in a way. Yes, the law is the same for all. Deposit must be of all encompassing the actual stitched out samples, files, photographs etc. Hugs, Sadia
BTW Stephanie, there is no three month deadline at all in registering. Registration can be at any time, a year later, three years later, five years later…makes no difference. As long as one can prove originality by actual publication (date on website etc) one has the copyright. Hugs, Sadia