posted this on January 10, 2012 10:02
The material contained in this document is for informational purposes only. This does not constitute legal advice. The information in this document is deliberately simplified for educational and informational purposes. TurboSquid encourages you to seek the advice of an attorney to discuss any intellectual property concepts.
What is copyright?
Copyright is a set of exclusive rights granted by law to the creator of an original work (such as a song, a painting or a 3D model) when the work is created. This includes the right to copy, distribute and perform the work and to adapt it to create new works.
Copyright arises automatically out of the existence of the work in some fixed form. You cannot copyright an idea. But once the idea is expressed and embodied in some actual form – written down, recorded, painted, saved in a digital file, etc. – that fixed expression is automatically protected by copyright. The work does not need to be published, and the copyright does not need to be registered to be yours – this is a common misconception. Registering a copyright increases the amount of damages a copyright holder can sue for, but it does not make the copyrights any more “true.” As a side note, it is a commonly held belief – completely untrue, however – that the creator of a work can protect copyright in it by mailing him or herself a document containing the work. Also, copyrights do not have to be defended to remain in effect.
Copyright owners have the exclusive legal right to control copying, selling, performing and other uses of the work for a specific period of time (in most countries, 70 to 100 years after the creator's death). After that period work is said to pass into the public domain, which means it can be used without permission. But since there are no 70- to 100-year-old 3D models around, that’s not particularly relevant for us as it relates to the models themselves. However, there are sculptural and other artistic works (depicted by 3D models) where it will matter.
Copyright law does not protect the actual idea, concepts or techniques contained in a copyrighted work. It covers only the particular form or way the ideas or concepts have been made real in a fixed form of material expression.
For example, “Superman” comic books are copyrighted and may not be reproduced and sold without permission from the copyright owner. The copyright also prohibits others from creating similar works involving the Superman character. But someone could create a work about a heroic super-human character without infringing on any copyrights.
Typically the person who creates the work is considered its author and the holder of the copyrights, but there is an exception for “work made for hire.” A work made for hire is one created by an employee within the context of his or her job or specially ordered or commissioned in certain specific circumstances. When a work qualifies as a work made for hire, the employer or the party who commissioned the work is considered the author and rights holder.
Copyright owners also can license their exclusive rights to others. That means they give permission to record, perform or copy the work, for example, during a certain period of time or in specific ways. Rights holders can also permanently transfer or assign their exclusive rights to others.
It is illegal to copy, adapt, sell or otherwise distribute work that is protected by copyright unless you own the rights or have permission from the rights holder.
What is copyright infringement?
Copyright infringement is the unauthorized or prohibited use of works protected by copyright.
It’s called “infringement” because such use without permission infringes on the rights of the party that owns the copyrights, such as the right to reproduce, perform or adapt the work.
Copyright infringement is illegal and can result in civil and criminal penalties such as fines and even prison time.
What is “Fair Use”
Fair use is a limitation and exception to the rights that copyright law grants to the author of a creative work. Under the doctrine of fair use, people can legally use copyrighted material without permission from the rights holders – but only under very limited and specific conditions and for very limited and specific purposes.
When judges determine whether fair use applies to a case, they consider four factors:
The purpose and character of the use (What is it being used for?)
The nature of the copyrighted work (What kind of work is being used?)
The amount and substantiality of the portion used in relation to the copyrighted work as a whole (How much of the work is being used?)
The effect of the use upon the potential market for or value of the copyrighted work (How is this use going to affect the creator’s ability to sell the work?)
In general, fair use does NOT cover any kind of commercial use or advertorial (advertising or promotional) use. Specific examples of fair use named in case law are: news reporting, commentary, criticism, research and scholarship.
The safest position, however, is that artists in our community should never rely on Fair Use. Even in cases where the Fair Use doctrine truly and appropriately applies, it is not permission to use protected intellectual property. It is simply a defense to any copyright infringement claims that may result from that use. Our goal for our artists is to stay out of legal cases, not to win them several years and hundreds of thousands of dollars later with legal arguments.
What is the Digital Millennium Copyright Act (DMCA)?
The Digital Millennium Copyright Act (DMCA) is a U.S. law that was passed in 1998 to extend the reach of copyright law to the digital world and to limit the liability of online service providers (OSPs) like TurboSquid for copyright infringement by their users.
The DMCA includes the Online Copyright Infringement Liability Limitation Act (OCILLA), which creates a safe harbor that protects OSPs and ISPs against copyright liability by their users if they qualify for and follow certain guidelines. That means that OSPs are not held liable if users of the service publish infringing materials, as long as the OSP does certain things the law requires.
To be protected under OCILLA, OSPs must promptly block access to or remove allegedly infringing material from their systems if they get a notification from a copyright holder or the copyright holder's agent claiming infringement.
This notification, called a Takedown Notice, is a way for rights holders who discover that their work is being infringed through publication online to request that the infringing material be removed. According to the DMCA, a Takedown Notice must be sent to the Designated Copyright Agent of the OSP and must include the following:
A physical or electronic signature of the rights holder or someone authorized to represent the rights holder.
Identification of the copyrighted work you claim is being infringed -- or if more than one work is being infringed on the site, a representative list of such works at that site -- and that is to be removed. TurboSquid needs enough information to locate the infringing material, such as a link to the product online or the product ID number and name, the name of the member who published it, the file size and the date published.
Enough information to permit Turbo Squid to contact you, such as an address, telephone number and, if available, an e-mail address at which you may be contacted.
A statement that you have a good faith belief that this use of the material is not authorized by the copyright owner, its agent or the law.
A statement that the information in the notification is accurate, under penalty of perjury, and that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
OCILLA also includes a provision for counter notification that allows the party who published the allegedly infringing material to answer a claim that he or she believes is false. According to the DMCA, a counter notification must be sent to the Designated Copyright Agent of the OSP and must include certain specific elements, as follows:
The counter claimant’s physical or electronic signature
Identification of the material that has been removed or blocked and the location at which the material appeared before it was removed or blocked. TurboSquid needs enough information to locate the material, such as a link to the product online or the product ID number and name, the file size and the date published
A statement under penalty of perjury that the counter claimant has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled
The counter claimants name, address, and telephone number and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the infringement occurred. Because TurboSquid is in Louisiana, that would be the jurisdiction.