Be Careful What You Print in Your Newsletters and Include on Your Websites

newspaperInfringements of the Copyright Act (“Act”) related to playing music was covered in a May 17 LTC Counsel blog post, and this post will cover infringements of the Act through written materials.  Many long term care (“LTC”) facilities use websites and newsletters to inform on activities and perspectives of residents and staff.  These vehicles are often used to reproduce poems or stories intended to inspire and console residents and their families.  LTC facilities can run into problems with the Act when the content of their websites and newsletters contain original literary works.

The Act protects original works of authorship, including literary works.  17 U.S. Code §102.  Literary works are defined as works “expressed in words,” such as books, periodicals, and manuscripts.  17 U.S. Code §101.  The owners of copyrights in literary works have the exclusive right to reproduce, distribute copies by sale or other ownership transfer, perform or display copyrighted work publicly and create derivative works of the literary work.  17 U.S. Code §106.  For LTC facilities, this may mean that including an inspirational poem or story in a newsletter is a violation of the original author’s copyright.

Authors of original literary works employ agencies to search the Internet and other publication sources for any reference to or use of their original literary works.  When they find a use in violation of their rights under the Act, they send cease and desist letters demanding, with a threat of litigation, that the reproduction of the literary work be removed from the Internet or from a newsletter.  They may also demand payment of a license fee to use the literary work.  To avoid this scenario, facilities may contact authors or their agents in advance and seek permission to reprint the original work in a newsletter or on the facility’s website with proper recognition of the author.  If permission is granted, the facility should memorialize that permission in a written document.  Further, permission for use may still come with a demand for payment of a license fee.  If the facility engages in a license arrangement, that agreement should be memorialized in a contract.

The author cannot sue for copyright infringement when the original work was not pre-registered or registered with the Copyright Office of the Library of Congress.  However, when the Copyright Office rejects the literary work as not copyrightable, the author can maintain a claim for copyright infringement and the issue of whether the work is copyrightable will be litigated.  17 U.S.C. §411.  The recovery for an infringement includes either the copyright owner’s actual sales losses plus profits of the infringer or statutory damages from $750.00 to $30,000, per literary work.  Willful violations include additional awards up to $150,000.  If the court finds the infringer was unaware and had no reason to believe the Act was violated, the court may reduce an award to no less than $200.  17 U.S.C. §§504, 505.

The Act specifically prohibits monetary awards in lawsuits where the literary work was preregistered with the Copyright Office before the copyright infringement and the effective date of registration is the shorter of 3 months after publication of the work or one month after the author learns of the infringement.  This limitation on recovery applies only to unpublished works for which the infringement occurred prior to copyright registration and to published works where infringement occurred after the first publication and before a registration occurring over three months after publication.  17 U.S.C. §412.

In the event a LTC facility wishes to include in its newsletters or website original works of authorship that are protected under the Copyright Act, the facility must comply with the Act and obtain permission for the use.  It makes sense to obtain advance approval before investing in a publication that must be destroyed after contact from an author or an author’s agent.  Additionally, facilities should be very careful about website content and the origin of the information posted.

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