Assembled by Idaho Press

A COMPLETE REVIEW & ANALYSIS OF COPYRIGHT LAWS FOR PUBLISHERS FOLLOWS:

 Newspaper articles can be copyrighted  as an individual piece or as part of
the newspaper (by placement of notice in the masthead).  Advertisements are
not protected by the general masthead copyright notice;  an ad must bear its
own notice.
 To assure that a copyright claim will stand up in court, three steps should
be fulfilled:
(1) NOTICE:  The notice should bear the symbol c or the word "copyright," but
at least the year and the name of the copyright owner. 
(4) REGISTRATION:   Registration fee is $10 for every edition for which
copyright is claimed. Many  publishers choose to print the Notice always, but
register their claim only AFTER they feel there has been an infringment and
they plan legal action. Registration forms are available from the CopyRight
Office, Library of Congress, Washington, D.C.  
(1) DEPOSIT:  Within three months of publication of an edition carrying
copyright notice, two  complimentary subscriptions should be provided to the
Library of congress, Washington D.C. 20559. However, deposit may be withheld
until the Copyright Office makes a specific demand for such deposit.
      An excellent copyright handbook by the Pacific Media Center at the
University of Oregon School of Journalism, sells for $4. Send a check to the
OU Foundation for Joumalism at the School of Journalism, University of
Oregon, Eugene, Oregon 97403.


I. SOURCE OF COPYRIGHT PROTECTION.
 Copyright protection for newspapers and newspaper articles is available
exclusively through the Copyright Act of 1976, which is codified as Title 17
of the U.S. Code This Act preempts both state and/or common law with respect
to any work that comes within its scope. The Act covers "literary works"
which it defines as "works, other than audiovisual works, expressed in words,
numbers, or other verbal or numerical symbols or indicia, regardless of the
material objects, such as books, periodicals, manuscripts ... in which they
are embodied" It also covers "pictorial" and "graphic" works, which include
photographs, cartoons and other such aspects of newspaper copy.

 The Act also covers compilations, including collective works. Section 101
defines a collective work as "a work, such as a periodical issue, anthology,
or encyclopedia, in which a number of contributions, constituting separate
and independent works in themselves, are assembled into a collective whole"
The Act provides protection for the selection and arrangement of re-existing
works (e.g.): articles, editorials, photographs, etc.) that are themselves
independently copyrightable.
 Thus, a newspaper as a collective whole, as well as its individual component
parts, is within the scope of the 1976 Copyright Act. The terms of the Act
dictate and limit the particular rights that are protectable and the formal
steps one must take to secure those rights.

II. WHAT A COPYRIGHT PROTECTS
 The facts underlying a news story cannot be appropriated by an author and
copyrighted as his or her own property. This is true even if the author was
the first to discover such facts, even if he did so at great expense, and
even if no one else would otherwise have discovered them.
 Also, a particular interpretation of historical facts cannot be copyrighted.
In one case, for example, a theory about the cause of the Hindenburg disaster
was held non-copyrightable. In another, the copying of Gerald Ford's
revelations as to his state of mind while involved in governmental affairs
was not an infringement. Beliefs, impressions, etc., can thus be historical
"facts" and hence non-copyrightable.
 On the other hand, the particular expression of the facts is copyrightable.
That is, while a person may use the facts reported in an article, he may not
copy the article word-for-word or closely paraphrase it. Of course, this
presumes that the form of expression in the first article is indeed original.
This may not be the case if the first article concerns a speech or a
conversation.
 Also, in some cases, courts allow copying of the literal form of expression
where important news is involved In one case, for example, the printing of
frames from a film of the Kennedy assassination was allowed, in light of the
news value of the subject and the fact that photographs were otherwise
unavailable Copying from biographies is also subject to less stringent
application of copyrights for similar public interest reasons, as is
discussed later in this section.
 The fictional elements of a newspaper article are copyrightable. Thus, a
person who thinks he is copying unprotected facts may unknowingly be copying
protected fictional elements. However, if the original work was put forth as
a factual account, some courts will prevent ("estop") a copyright owner from
proving that part of it was fiction.
 The Act has other limitations on copyrightability. A work cannot be
copyrighted unless it contains a minimum amount of originality. 
 This requirement may not be satisfied if the work consists entirely of
common or easily accessible data, such as measurement tables, mileage charts,
and calendars. Short phrases, titles, names, etc. lack minimum content and,
for this reason, the name or title of a newspaper cannot be copyrighted.
However, legal protection is available if the name constitutes a trademark.



   Under the Act, a copyright owner has certain exclusive rights with respect
to the protectable elements of the work:
  1. The right to reproduce the work in copies.
  2. The right to prepare derivative works based upon the copyrighted work.
  3. The right to distribute copies of the work to the public by sale or
other transfer of ownership, or by rental, lease or lending.
  4. The right to display the work publicly.

III. WHO OWNS A COPYRIGHT
   The author is generally the owner of the copyright. However, in a "work
made for hire" situation, the employer (the publisher) is considered the
copyright owner. A work is considered "for hire" if it is composed in the
normal course of employment, and the employer has the discretion to use or
not use the work in the publication, or to charge its content. It can also be
"for hire" if it is specially commissioned by a publisher for inclusion in a
collective work.

 Any or all of a copyright owner's exclusive rights may be sold, transferred,
or licensed to another. A copyright license is a contract which permits a use
or uses of a copyrighted work which would otherwise constitute infringement.
Licenses can be exclusive or non-exclusive. In the case of a non-exclusive
license, the publisher may retain the right to use the work himself, or may
simply license the same work to several other publishers simultaneously
 The Act protects a given work from the moment it is fixed in tangible form
(i.e., written down or typed into a computer). Certain formalities must be
followed if the work is to remain copyrighted after it is published, and if
the copyright is to be enforced. A copyright lasts for the life of the author
plus fifty years. If a work is "for hire", as is often the case with
newspapers, protection lasts for seventy-five years after publication.

IV. TECHNICAL REQUIREMENTS FOR COPYRIGHT PROTECTION
 The Act prescribes certain formal procedures that copyright owners must
follow. The existence of a copyright does not depend upon adherence to these
formalities, since a copyright is created at the moment a work is fixed in
tangible form.  However, adherence to the formalities is necessary for the
copyright's continued existence after the work is published, and for its
enforcement in the case of infringement.
   A given newspaper article can be copyrighted in either of two ways: as an
individual piece (e.g., copyrighted by the author), or as part of the
newspaper (e.g., copyrighted by the publisher). 
 As mentioned above, there is a separate copyright in the newspaper as a
collective work, and the same formalities that secure the copyright in the
collection can also serve to protect the component articles individually.
   The formalities fall into three categories-those dealing with noticing the
claim of copyright, those dealing with depositing the work, and those
dealing, with registering the work. Each is described below

  A. Notice
   First of all, the work must be published with a copyright notice The
notice must bear the symbol (c) or the word "copyright", along with the year
and the name of the copyright owner. However, failure to include this notice
is not an irrevocable forfeiture of protection.
 
 Section 405 of the Act states that omission of notice does not invalidate
the copyright in a work if either the notice has been omitted from no more
than a small number of copies distributed to the public; 
 or registration for the work is made within five years after the publication
without notice, and a reasonable effort is made to add notice to all copies
that are distributed to the public in the United States after the omission
has been discovered, 
 or the notice has been omitted in violation of an express requirement in
writing that, as a condition of the copyright owner's authorization of the
public distribution of copies they bear the prescribed notice.

 Case law suggests that omission from an entire edition of a newspaper would
not constitute a "'relatively small number of copies"  Thus, presuming that
the omission was not in violation of a written agreement, the omission can be
cured (excused) only by registration within five years of publication,
together with a reasonable attempt to add notice to outstanding copies.

(  1) Effect of Omission On Innocent Infringers.
 If the omission is cured, a valid copyright is enforceable. The omission is
not without effect, however. Section 405 (b) states:
 Any person who innocently infringes a copyright, in reliance upon an
authorized copy or photorecord from which the copyright notice has been
omitted, incurs no liability for actual or statutory damages under section
504 for any infringing acts committed before receiving actual notice that
registration for the work has been made under section 408, if such person
proves that he or she was misled by the omission of notice.

 The infringer has the burden of establishing innocence and reasonable
reliance. An innocent infringer is one who acts in good faith and who has no
reason to think that the copied work was copyrighted. Some courts have held
that reasonable reliance may involve a duty to inquire (of the original
publisher) before copying.

 If a defendant succeeds in establishing such a defense, he will be immune
from liability for damages for past acts. However, the court may, in its
discretion, allow recovery of any of the infringer's profits attributable to
the infringement, and may enjoin future infringement. If the infringement
constitutes an ongoing pattern of copying, a court may require the infringer
to pay the copyright owner a reasonable license fee (in an amount and on
terms set by the court) as a condition for permitting continued copying.

(2) Special Notice Requirements
 for Advertisements.
 There is an important exception, in Section 404, to the provision of the Act
which allows a single notice to cover all the contributions to a collective
work. That exception pertains to advertisements inserted on behalf of persons
other than the owner of the copyright in the collective work regardless of
who owns the copyright. Ads are not protected by the general notice printed
under the newspaper masthead that protects articles and editorials. In order
to be protected, an ad must bear its own copyright notice.
 Congress deliberately singled out advertisements for this requirement
because they are typically not copyrighted and they are often widely
reprinted. It is thus reasonable for a publisher who wishes to reprint an ad
to presume that no copyright is claimed, if there is no copyright notice on
the ad. Disputes often arise when a publisher expends time and effort in
creating an ad for an advertiser, and wants to prevent the advertiser from
using the fruits of that work in another publication. Such ads must contain a
separate copyright notice, and the name of the copyright owner (e.g..,
cHometown Newspaper Co. 1987, or "copyright Hometown Newspaper Co. 1987).
 Publishers are well advised to include a provision for copyright ownership
in their rate card and in any specific advertising contract. This will
prevent subsequent disputes concerning ownership. Of course, the notice
attached to the ad should reflect the ownership agreement stated in the
contract.

  B. Deposit
 The Act's second requirement is deposit with the Copyright Office of two
copies of the work within three months of publication. However, this is not
really a condition for any aspect of copyright protection. Even though
Section 407 of the Act states that deposit is absolutely required, the
requirement is not enforceable before a specific demand (from the Copyright
Office) for compliance is made. Even then, non-compliance will result only in
the imposition of fines, and not in the loss of the copyright.

  C. Registration
 The third requirement is registration of the copyrighted work with the
Copyright Office. This too is not a condition for the existence of a
copyright, but is a condition for the copyright's enforcement. It is also a
condition for its continued existence if more than a "relatively small"
number of copies have been published and distributed without a copyright
notice.

 Under section 411(a) of the Act, registration is a prerequisite for the
filing of a lawsuit for infringement, although the registration need not
precede the infringement itself. However, a plaintiff is entitled to
statutory damages (as opposed to actual damages-see next section) and
attorney fees only if the work was registered prior to the infringement, or
within three months of the first publication (regardless of when the
infringement occurred). 
 In the case of smaller publications, statutory damages often represent the
only meaningful remedy because actual damages are negligible and/or difficult
to prove. For this reason, prior registration or registration within three
months of the first publication is a de facto prerequisite to a successful
lawsuit.

 Registration is accomplished by depositing two copies of the work with the
copyright office at the Library of Congress along with a completed
registration application form and (currently) a $10 fee. It should be noted
that registration necessarily involves a deposit, though the opposite is not
true A deposit will satisfy the registration requirement only if it is
accompanied by the appropriate application form and fee.

 Registration form SE should be used to register a newspaper; and each issue
is considered a separate work for copyright purposes and should be registered
separately. Because newspapers and other periodical publications typically
register many successive claims to copyright, publishers often open deposit
accounts with the Copyright Office, from which the $10 fee and other services
are paid. 
 If the publisher does not own all the rights in an article (e.g., if the
author merely gave the publisher a license to print it), the author may
register the article under his own name. The appropriate form for this
purpose is Form TX. Copies of these registration forms can be acquired by
writing to the United States Copyright Office, Registrar of Copyrights,
Library of Congress, Washington, D.C. 20559.
 A copyright registration is effective on the date of receipt in the
Copyright Office of all the required elements of registration, regardless of
the length of time it takes thereafter to process the application. Upon
receipt of the application, the Office examines it for form, and signifies
its acceptance by sending the applicant a registration certificate.

 Registration has other advantages beyond those already mentioned. If, for
any reason, the wrong person is listed as the owner in the notice,
registration will protect the rightful owner. It also provides "prima facia"
proof of the validity of the copyright and of the facts stated in the
(registration) certificate. `This affects the burden of proof and thus
simplifies the factual determinations in a lawsuit.


V. COPYRIGHT INFRINGEMENT & REMEDIES
 Infringement occurs when any of the exclusive rights of a copyright are
violated. An infringing article is one that derives from the copyrighted one
and is substantially similar to it in terms of expression. If actual copying
cannot be proven, it may be inferred so long as the plaintiff can show both
substantial similarity (judged on an objective standard-i.e., from the
perspective of the average lay reader) and proof that the defendant had
access to the copyrighted matter

 Infringement suits brought under the 1976 Act are litigated in federal
district courts. A plaintiff must bring his suit "in the district in which
the defendant or his agent lives or may be found" 28 U.S.C. x1400. He cannot
circumvent this jurisdictional limitation, even if the copyright claim is
combined with other causes of action, such as unfair competition, which would
be appropriate for state courts. Under 28 US.C. x1338, the district court's
jurisdiction is exclusive, meaning that state courts cannot hear suits
predicated on the protection of the Copyright Act.

 If the district court finds an infringement, the plaintiff can choose among
remedies. He can elect either actual damages plus defendant's profits
attributable to the infringement, or statutory damages. The election may be
made at any time prior to final judgment, but the two remedies are mutually
exclusive.

 If the plaintiff elects actual damages plus defendant's profits, Section
504(b) warns that the latter is recoverable only if the profits have not been
taken into account in computing the actual damages. Here the law is concerned
with preventing a "double recovery" windfall. 

 For example, if the plaintiff lost 100 sales and the defendant gained 100
sales as a result of a copied story (assuming the two publications sold for
the same price), an award of the value of 200 copies would not be
appropriate. This is because the proceeds from the sale of only 100 copies
had been displaced.

  However, the availability of both may be meaningful if the defendant's
profits exceed the plaintiffs lost profits. In that case, the plaintiff could
recover his lost profits plus the difference between that amount and the
defendant's profits. Thus if the plaintiff lost 100 sales and the defendant
gained 150, a recovery of the value of 150 copies would be appropriate (100
lost by the plaintiff, and the 50 additional gained by defendant).

 In some situations, a plaintiff may recover other losses as actual damages.
These include lost time and expenses in dealing with the infringement (e.g.,
changing the plaintiffs publication), loss of the value of being credited as
author, etc. All damages are subject to verification, and the degree of
accuracy demanded (or speculation permitted) varies among the judicial
districts.

 If the plaintiff elects to take statutory damages, they will be awarded in
such amount "as the court considers just". The court's discretion is limited
by the Act, which sets a minimum of $250 and a maximum of $10,000, with
certain exceptions. As suggested above, statutory damages are particularly
significant for smaller publications because they are not contingent upon
proof of specific losses. 

 For a small newspaper, specific losses are often negligible or impossible to
prove.   Again, the availability of statutory damages is subject to the
requirement of registration prior to the infringement or within three months
of the first publication.
 Injunctive relief is also available This means that a court can order an
infringer to cease an ongoing pattern of infringement, and can also add
 monetary damages.

 In addition to civil liability, a person who violates a copyright may also
be subject to criminal liability under Section 506 of the Act. It states that
"any person who infringes a copyright willfully and for purposes of
commercial advantage or private financial gain shall be punished by  a
maximum $25,000 fine for infringement, and a conviction would create a
criminal record.

VI. COPYRIGHT FAIR USE.
 The copying of a copyrighted work is not an infringement if it qualifies as
a "fair use" under the fair use exemption. The exemption for fair use is a
common law doctrine which has been codified in Section 107 of the Act. It was
originally created in an attempt to balance the rights of the copyright owner
with the public's interest in the free flow of information. Copying for
purposes such as criticism, comment, news reporting, teaching, scholarship,
or research would be deemed fair use and not an infringement. 
 The exemption is applied under an equitable rule of reason, and the
availability of "fair use" as a defense is never automatic A copying
defendant who seeks to invoke this defense needs to prove the fairness of his
copying in light of the specific facts of the particular case. While no
specific definition of the scope of "fair use" is possible, courts had
developed a set of criteria for identifying fair uses prior to 1976, and in
1976 Congress codified these criteria in Section 107 of the Act:

 In determining whether the use made of a work in any particular case is a
fair use, the factors to be considered shall include:

   (1) the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;

   (2) the nature of the copyrighted work;


   (3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the
copyrighted work.

 This list of factors is illustrative, and is not intended to limit the
number of factors a court may consider. Nor does it suggest the relative
weight a court should give each factor. The various criteria can sometimes
yield conflicting results, and different approaches to a given factor can
further complicate the determination. For example, the first criterion
suggests a commercial-nonprofit educational dichotomy. Yet news reporting has
elements of both. 

 Thus, the success or failure of a fair use defense could depend upon whether
a court focuses on the commercial objectives of the publisher or on the fact
that the infringing article disseminates news.