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Intellectual Property and “Fair Use”
on 14 June, 2010 and valid until supplanted)
There are numerous complexities and vagaries in the laws
related to protecting copyrights and intellectual property. It is the purpose
of this document to clarify our position on these laws and our policies
the copyright and/or the intellectual property rights for all content
published on our websites unless otherwise specifically noted. We DO NOT
authorize the use or reproduction of any of our property, whether
“copyrighted” or not, without specific written consent. We will vigorously
pursue any and all legal remedies for unauthorized use of our property.
Copyright laws protect the particular way an author has
expressed himself. They do not extend to any ideas, systems, or factual
information conveyed in the work. Intellectual property laws protect an
owner’s ideas, systems, and factual information. “Fair Use” laws may
provide affirmative defenses to claims against copyrights and intellectual
“One of the rights accorded to the owner of copyright
is the right to reproduce or to authorize others to reproduce the work in
copies or phonorecords. This right is subject to certain limitations found in
sections 107 through 118 of the copyright law (title 17, U. S. Code). One of
the more important limitations is the doctrine of “fair use.” The doctrine
of fair use has developed through a substantial number of court decisions over
the years and has been codified in section 107 of the copyright law.” http://www.copyright.gov/fls/fl102.html.
Section 107 also sets out four factors to be considered
in determining whether or not a particular use is fair:
- The purpose and
character of the use, including whether such use is of commercial nature
or is for nonprofit educational purposes.
- The nature of the
- The amount and
substantiality of the portion used in relation to the copyrighted work as
- The effect of the use
upon the potential market for, or value of, the copyrighted work.
source of the copyrighted material does not substitute for obtaining
The safest course is always to get permission from the
copyright owner before using copyrighted material. The legal owner (or lawful
agent of the legal owner) of the copyright or the intellectual property can
give permission for its use – and NO ONE else can.
the copyright and/or the intellectual property rights for all content
published on our websites unless
we are acting as the authorized agent for others who allow their property to
be utilized on our websites. In all cases, unless otherwise specifically
noted, we DO NOT authorize the use or reproduction of any material posted to
our websites, whether “copyrighted” or not, without specific written
consent. You may request such permission as indicated below.
Because we believe in the protection of property rights, including
intellectual property, we make reasonable efforts to avoid infringing upon the
rights of others. If you believe that we have infringed upon your rights by
posting material on our websites, you are requested to follow the notification
process identified below. Upon such notification, we will remove the material
until such time as we can verify our legal and proper use of the identified
“Fair use” is a doctrine in United States copyright
law that allows limited use of copyrighted material without requiring
permission from the rights holders, such as for commentary, criticism, news
reporting, research, teaching or scholarship. It provides for the legal,
non-licensed citation or incorporation of copyrighted material in another
author's work under a four-factor balancing test. The term “fair use”
originated in the United States. A similar principle, “fair dealing”,
exists in some other common law jurisdictions. Civil law jurisdictions have
other limitations and exceptions to copyright.
laws are not the only form of legal protection for intellectual property.
The fact that published material is NOT copyrighted does
not mean that it is not legally protected. The fact that a work is unpublished
does not bar a finding of fair use if such finding is made upon consideration
of all the above factors. Again, the safe and proper approach is to ask
permission before improperly using someone else’s published material.
U.S. courts have clearly delineated and explained “fair
use” law. The case of Folsom v. Marsh, 9 F.Cas. 342 (1841) provides a firm
foundation of the legal understanding where the Court rejected
the defendant's fair use defense with the following explanation:
[A] reviewer may fairly cite largely from the
original work, if his design be really and truly to use the passages for
the purposes of fair and reasonable criticism. On the other hand, it is
as clear, that if he thus cites the most important parts of the work,
with a view, not to criticize, but to supersede the use of the original
work, and substitute the review for it, such a use will be deemed in law
In short, we must often… look to the nature and objects of the
selections made, the quantity and value of the materials used, and the
degree in which the use may prejudice the sale, or diminish the profits,
or supersede the objects, of the original work.
These factors were codified in 17 U.S.C. § 107,
but they were not deemed exclusive.
The section was intended by Congress to restate, but not replace, the prior
judicially created (common) law. Courts are still entitled to consider other
factors as well.
We propose the following as reasonable and established
rules of law:
In some countries (such as the United States of America),
the mere creation of a work establishes copyright over it, and there is no
legal requirement to register or declare copyright ownership.
Published materials are “public domain” materials
only if they are clearly and legally identified as such.
Fair use is decided on a case by case basis, on the
entirety of circumstances. The same act done by different means or for a
different purpose can gain or lose fair use status. Even repeating an
identical act at a different time can make a difference due to changing
social, technological, or other surrounding circumstances.
In the law, the term fair use has a specific meaning that
only partly overlaps the plain-English meaning of the words. While judges have
much leeway in deciding how to apply fair use guidelines, not every use that
is commonly considered "fair" counts as fair use under the law.
Fair use is only one of many limitations, exceptions, and
defenses to copyright infringement.
While plagiarism and copyright violation are related
matters, they are not identical. Both can, at times, involve failure to
properly credit sources. Plagiarism refers to using someone's words, ideas,
images, etc. without acknowledgment and is largely a matter of professional
ethics. Copyright is a matter of law, and protects the manner in which an idea
is expressed, not the idea itself (which may have other protections, such as a
patent). Citing a source generally prevents accusations of plagiarism, but is
not a defense against copyright violations.
Noncommercial use is NOT inherently “fair use”!
Profit motive (or lack thereof) may enter into a decision – especially the
amount of damages awarded – but is NOT a sufficient defense in a fair use
case. (Allowing the public to obtain material at no cost that they would
otherwise pay for creates a financial loss to the owner).
“Fair use” defenses reduce the ability of author's to
protect their interest in their writings. Thus the copyright holder cannot use
a non-binding disclaimer, or notification, to revoke the right of fair use on
works. However, binding agreements such as contracts or license agreements may
our websites, you enter an agreement by using our website and accessing our
materials that specifically limit application of “fair use” defenses.
“Fair use” is ONLY A DEFENSE against an infringement suit and does not
restrain anyone from suing. If we disagree that a given use is “fair”
under the law or if we believe that you have violated our intellectual
with the access to our materials, we can and WILL exercise our right to have
the matter decided by a court. Thus, “fair use” is not a deterrent to a
Strategic Lawsuit Against Public Participation or any other legitimate
Regarding Copyrights and Intellectual Property:
By accessing or utilizing any of our websites,
including RichWritings.com, you agree to the terms, definitions, and
That includes limitiation of use and access and your agreement to not submit,
post or otherwise transmit any material for which you do not hold legal
Every time a new submission is published by
RichWritings.Com, it receives an automatic copyright stamp at the bottom,
stating ownership of that item. For this reason, submitting work that you know
is not your own work is considered a rights violation and the original author
or owner can submit your item as a copyright violation (as below). There is a
significant difference between citing works within your own creations and
posting someone else’s work completely as your own creation. Plagiarism and
rights violations will not be tolerated at RichWritings.Com or by most
Where we utilize the materials of others (with their
permission) or accept submissions by other for posting, such is done with the
presumption that permission is granted for such. Adding text or slightly modifying someone else's copyrighted material
does NOT make that item yours. Failure to comply with our copyright rules or
copyright laws may result in account termination or denial of the privilege of
access. The only circumstance in which you may submit material that is not
your own original creation is to cite the exact source that specifically gave
you permission to use and publish it.
If RichWritings.Com notices blatant infringement activity without a submitted
complaint, we will remove the material immediately. We would only do this if
we felt it was absolutely infringing on a copyright. We will not be routinely
monitoring the site for such activity.
Digital Millennium Copyright Act:
If you believe that any material contained in this Site infringes
your copyright, you should notify RichWritings.com of your copyright
infringement claim in accordance with the following procedure.
Step 1 - Be absolutely
sure that copyright infringement has occurred. If
you knowingly falsely accuse someone of infringement, you could be and
probably will be prosecuted for perjury and sued by the accused author and/or
Step 2 - Compose an email, which will serve as your Copyright
Infringement Notice, with the following necessary information (DMCA, 17 U.S.C.
a. Specific identification of the
infringing material (see bottom of page where posted).
b. Username of the author you claim is unlawfully using your
c. A complete copy of the infringing material. If multiple copyrighted
works at the website are covered by a single notification, include a
representative list of such works at that site, specifically identifying each
d. Your name and contact information (your real name and contact
information reasonably sufficient to permit us to contact you).
e. State in the email notice: "Under penalty of perjury, I
declare that the information in this notice is accurate and that I, the
copyright owner and complaining party, have 'good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner,
its agent or the law.'"
f. State, also under penalty of perjury, that the sender of the email
notice is authorized as the copyright owner or a legal representative of such
of the material claimed to have been infringed.
g. Sign your Full Name (First and Last)
Have a copy Notarized and attached an image of the document with your e-mail.
E-mail all of this in one complete e-mail.
RichWritings.com will process notices of alleged
infringement which it receives and will take appropriate action as required by
the Digital Millennium Copyright Act (DMCA) and other applicable intellectual
property laws. The DMCA requires that notifications of claimed copyright
infringement should be sent to this Site's Designated Agent who is: Alexander
Lee Gragg whose e-mail address for this purpose is: copyright@RichWritings.com.
The email must have the subject heading: “Copyright Infringement Notice.”
Information sent in a Copyright Infringement Notice will be examined carefully to be sure
all necessary information has been included. If the required information is
not included in this email, we will make a reasonable attempt to contact you
to gather the missing information. If contact cannot be made or you fail to
provide the required information, the notice will be disregarded.
If all necessary information has been provided, we will temporarily remove the
infringing material from the website’s public access pages. This protects
RichWritings.Com from all legal
liability. As soon as the material is removed from our public access areas,
the submitter of the material will be notified promptly of the notice and
possible infringement. If the Member believes that the material does not
infringe the claimed copyright or has been mistakenly claimed, he/she may send
a Counter-notice to RichWritings.com
If you fail to include the necessary information listed
above and fail to do so even after initial contact from RichWritings.Com, the
complaint will be deemed legally null and void.
Members who have had material removed from public access due to a Copyright
Infringement Notice may send a counter-notice to us to challenge the claim. To
do so, please follow these steps carefully:
Step 1 - Be absolutely sure that you have not infringed
upon someone else's material. If you lie,
you could be prosecuted for perjury and sued by the copyright owner.
Step 2 - Compose a document, which will serve as your
Counter-notice, with the following
Specific identification of the material in question.
State, under penalty of perjury, that the material was removed
from the website public access pages by RichWritings.Com as a result of a
mistake or misidentification of the material.
State that you consent to the legal jurisdiction in the federal
district court where the user's address is located.
State that you agree to accept service of legal process from the
copyright owner or person who signed the Copyright Infringement Notice and
offer the physical address for such service.
Sign your Full Name (First and Last) and provide your
Step 3 - Submit this required information via e-mail to
copyright@RichWritings.Com with the subject line “Counter-notice”.
Step 4 - We will then contact you and provide either a
postal mailing address or FAX number where you must also
print, sign and send/FAX your signed counter-notice to us.
If you fail
to submit this counter-notice via both email and fax, the counter-notice will
be deemed legally null and void and the material will remain unavailable from
the website’s public access areas.
If you fail
to include any of the necessary information listed above and fail to do so
even after initial contact from us, the counter-notice will be deemed legally
null and void and the material will remain unavailable from public access.
When we receive a counter-notice with all of the
necessary information, the copyright owner or sender of the Copyright
Infringement Notice will be sent a copy of the counter-notice and informed
that the disputed material will be returned to website public access no later
than ten (10) business days. In order to prevent this from happening, the
copyright owner or sender of the Copyright Infringement Notice must bring a
The copyright owner or sender of the Copyright
Infringement Notice must convince a judge that copyright infringement has
occurred. A Copyright Infringement lawsuit will need to be filed in federal
court against the accused Member and the court will need to be persuaded that
the Member is indeed committing copyright infringement. (See clauses above
If the copyright owner or sender of the Copyright Infringement Notice does not
properly initiate court action, the material will be replaced for public
E-mails sent to copyright@RichWritings.com
for purposes other than communication about copyright claims may not be
acknowledged or responded to.
There are plenty of good sources for copyright
The US Copyright Office
Cornell University Law
Be informed, use good manners, and obey the law!
me know if you have comments about or corrections for this web site.
This website and its contents are Intellectual
Property - ALL RIGHTS RESERVED! 2010 by Rich Van Winkle