USE AND PROTECTION OF INTELLECTUAL PROPERTY GUIDELINES FOR CHAPTERS WITH NEWSLETTERS OR WEBSITES The Compassionate Friends, Inc. Creating a website or publishing a newsletter can be an effective way to help strengthen the community of a Compassionate Friends, Inc. chapter, and it can also be an easy way to inform members of important information and chapter events. It can also be a useful forum for members to share original photographs, poems, letters, or other personal writings. Therefore, newsletters and websites are important outreach tools for the chapter, so it is important to be aware of some basic guidelines before embarking on such projects so that your chapter and TCF as a whole is protected from potential legal liability. 1. The Goals of this document are as follows: A. To help you understand Intellectual Property (IP). B. To help you avoid misusing and infringing the IP of others. This is an extremely important responsibility your actions could result in legal liability to the TCF nationwide organization. C. To help you understand how to protect the IP of TCF. 2. Forms of Intellectual Property: A. Copyright 1) Creative works are protected. Numerous kinds of creations can fit into the category of original works of authorship that are protected by copyright law. Often, people think of copyrights as protecting books, magazines and other published media, but copyright law also protects written words or pictures published on a website, music in MP3 format, among many other possibilities. Examples of the kinds of works that are protected by copyright law include the following: a. Written documents b. Newspaper articles c. On-line articles d. Poems e. Letters f. Movie scripts or theatrical plays g. Song lyrics or musical compositions h. Sound recordings including music 1
i. Photographs j. Drawings, paintings, or computer created visual art or animation k. Sculptures l. Motion pictures or other audio visual works 2) Copyright protection is automatic. Under the current law, copyright protection arises automatically as soon as the original work is authored or created and fixed in a tangible medium of expression (meaning that it is written down, recorded, etc.). 3) The Copyright Owner has certain exclusive rights, including the following: a. The right to make copies b. The right to distribute copies to the public (whether for free or for a fee) c. The right to perform a play d. The right to display visual art e. The right to make derivative works (that is, to make new works that are based on the existing copyrighted work) f. The right to license others to do all of the above, or the right to refuse to license others 4) Owners can be individuals or corporations. Individuals who prepare creative works as a part of their jobs do not usually own the copyright to the works they prepare. Usually, in these cases, the copyright is owned by the employer corporation. Individuals sometimes transfer their rights to a company such as a stock photo house or a publisher or music company. 5) Unauthorized use creates legal liability. Use of copyrighted property without permission of the owner can result in legal liability. B. Trademarks / Service Marks 1) Trademarks and service marks are words, short phrases or symbols that identify the source of the goods or the services. Trademarks identify goods and service marks identify services. Famous trademarks include Coca-Cola, Xerox, Starbucks, to name just a few. Famous service marks include Chi Chi s for a restaurant or Chase for banking. 2) Use of trademarks or service marks belonging to others requires permission. Use without permission or use of a confusingly similar word or symbol can result in legal liability for trademark infringement. 3) The Compassionate Friends is a registered service mark. 4) TCF has several other registered marks, including: 2
a. Worldwide Candle Lighting b. Walk To Remember c. We Need Not Walk Alone d. That Their Light May Always Shine e. The TCF Candle Logo: f. The TCF Hands Logo: C. Other forms of Intellectual Property. Other kinds of intellectual property, such as Patents and Trade Secrets, are beyond the scope of this document. 3. Avoid misuse and direct infringement of other copyrighted works. A. Use of creative material (copyrighted works) requires permission in advance. When you are putting together a website, you may be tempted to use photos or images you find on the Internet. However, remember that the use requires the permission of the copyright owner. If a TCF member submits an original photo or written work to chapter headquarters for use on the chapter website or in the chapter newsletter, it is reasonable to imply that the member grants permission to use the work for that purpose. However other uses (like publishing a compilation of poetry in book form for example), would require written permission. B. Exceptions to the requirement to obtain permission. In other instances, there are a few limited exceptions to the permission requirement, some of which include the following: 1) Public domain. Some very old works are possibly in the public domain. An example is the King James Version of the Bible (translated in 1611 and no longer protected by any copyright law). However, the study notes that may appear in certain Bibles are probably protected by copyright law. Other, more modern Bible translations are protected by copyright law. Bible publishers usually give guidelines for permission to use them on their copyright pages. 3
Whether or not a work is in the public domain can be difficult to determine. The period of time for which a work is protected can vary based upon several factors, including who owns the copyright and which version of the Copyright Act applies. Thus, the safest conclusion is that only very old works are in the public domain. 2) Fair Use. Fair use seems simple at first glance, but there have been numerous complex legal cases concerning the application of fair use. Fair use sometimes does exempt uses that are for nonprofit educational purposes. However, not every use by a nonprofit is fair use. For example, using a copyrighted work for the purpose of raising funds for a nonprofit organization is most likely going to be viewed as a commercial purpose. Also, using a stock photo without paying the required fee, even if used by a nonprofit for a non-commercial purpose, would not be a fair use. This is because stock photo houses are in the business of selling photographs, and if you use a photo without paying for it, the stock photo house will not receive a license fee. It is rarely safe to assume that you can use something in a newsletter or on your website on account of fair use, especially if your use has any effect on the potential market for or value of the copyrighted work. C. Don t publish without permission. Don t publish anything on your chapter s website unless you are the copyright owner or have permission from the copyright owner. It is important to obtain written permission, as opposed to verbal permission, since you may need to be able to prove that you have the necessary consent. Only the true owner, or his or her authorized licensee can grant permission. With respect to material submitted by TCF members, you can be less formal with regard to this requirement. TCF members generally submit material for the purpose of being published in the newsletter or website. Thus, by submitting an original work to a TCF chapter, it is generally implied that TCF member consents to the work being used in the newsletter or website. But you cannot assume the author consents to their work being published in other ways. If it is doubtful that the member authored the work, it is best to contact the member to clarify the issue. Important Note: If your local chapter or The Compassionate Friends, Inc. has been praised in a published article, you don t automatically have the right to post this article on your website or in your newsletter. D. What if you cannot determine who the owner is? Unfortunately, it is not always easy to determine who the copyright owners are. If you cannot determine or find a copyright owner to obtain consent to publish the work, it is best to refrain from proceeding any further. 4
E. Avoid Believing Common Copyright Myths. 1) Copyright Myth #1: There s no copyright notice, so it s okay. In fact, a notice is not required in order for the work to be protected by copyright law. Furthermore, a notice may have been improperly removed. 2) Copyright Myth #2: I m only taking a small amount of it, so it s okay. Large damage awards have been awarded in at least one lawsuit where just a few lines of a lengthy book were reprinted without permission. 3) Copyright Myth #3: I ll give credit, so permission is not required. Credit does not eliminate the requirement to get permission. 4) Copyright Myth #4: I won t need a license, since I intend to alter the work I copy. The owner has the exclusive right to make derivative works from the copyrighted work. Changing it without permission may equal copyright infringement and could result in large monetary judgments being awarded to the copyright owner. 4. Interactive sites can make you liable for indirect infringement. A. Websites are not only used to post information, but can also be interactive vehicles, where visitors can post their own thoughts, pictures, and videos. When creating and working with a website, you should not only be careful of the material you post on the website, but you will also need to monitor what chapter members, or other people simply visiting, post on the site. If a chapter member submits his or her own original material, such as a poem, letter or photograph, you may keep the content on the site. However, a member may not post material that a third party has authored without violating copyright law. It is easy to intentionally commit copyright infringement, but it is just as easy to commit copyright infringement indirectly through interactive websites. B. A good example of committing copyright infringement indirectly would be the well-documented Napster story. The music industry wanted to hold Napster accountable for infringement brought about by the website s members, who simply used the software available on the site to exchange music with people all over the world. These members were able to download and share music that they did not personally purchase. While this example may seem remote to the goals of the various chapters of The Compassionate Friends, Inc., it serves as a reminder that any place where people surfing the web can interact, such as in discussion forums, chat rooms or a hosted website, there could be potential infringement. It is imperative that you police your website for such potential material. It could be difficult to determine who the real copyright owner is if the material is posted on your site as a member s own words. In those situations, it may be helpful to contact the member to determine who authored the work. 5. Use of TCF s intellectual property. A. Use of TCF trademarks is limited to members in good standing. As a chapter of TCF in good standing, you can link to the TCF national website and use the 5
TCF trademarks or service marks without further permission. However, if your chapter ever ceased to be affiliated with TCF, then it must cease all use of TCF s marks and it must no longer identify itself as The Compassionate Friends. B. Include proper trademark designations. When using TCF s trademarks and service marks including The Compassionate Friends, use the R-in-a-circle registration symbol,, at least in connection with the first prominent use of the mark. C. Permission is required to use TCF copyrighted material. Generally, your chapter does not have permission to reproduce the copyrighted materials of TCF, such as the TCF magazine, brochures or any articles appearing on TCF s website. D. It is generally permissible to use material submitted by TCF members. Local chapters can be less formal in complying with copyright law concerning material submitted by a TCF member. For example, TCF members frequently submit poems or letters to chapter headquarters, and most of the people who submit material likely consent to it being published in a newsletter or on the chapter website. The content and context of the material may indicate whether or not the member consents to using the material in a newsletter or on the website. However, when in doubt, it is advisable to contact the member who submitted the material and verify consent to publish it. E. Exercise caution in posting information regarding child identity. When posting information about children, it is best to refrain from posting birthdates. This is because birthdates could be used to commit identity theft. Even though a birthdate alone may be insufficient to engage in identify theft, in conjunction with other data, it may enable a potential thief to gain access to more sensitive information, such as a birth certificate or social security number. Birthdates are often used to verify identity, so a potential thief with a child s birthdate is one step closer to acquiring additional information about the child. A motivated thief may be able to locate a birthdate through other means, but posting it in a newsletter or website facilitates access to this information. F. Use proper copyright notices. It is important to use proper copyright notices in your newsletter and on your website. The Copyright Act says: The notice shall be affixed to the copies in such a manner and location as to give reasonable notice of the claim of copyright. The notice has three parts. The first part is the word Copyright or the symbol. The second part is the name of the owner. All owners should be included. The third part is the first year of publication. Often times, this could be a range of dates, such as 2001-2005 to reflect different parts of the work or different editions. So the notice would look like this: 2007 The Compassionate Friends, Inc. It is best to include the notice in the footer of every page of the website or newsletter, as a notice only appearing on one page could be easily passed over. 6
This document was written and is copyrighted by TCF s attorney, David L. Bea. It is intended for general information purposes but it must not be relied on as legal advice for any specific situation. For specific legal advice, consult an experienced attorney. For specific situations possibly affecting TCF, contact TCF s national headquarters. 2008 Law Office of David L. Bea S:\BEALAW\Clients\CompassionateFriends-5017\Chapter Guidelines\Outline of Guidelines For Chapters With Newsletters Or Websites-revised.doc 7