One impact of last week's ruckus over Rolling Stone's career-ending profile of Gen. Stanley McChrystal has been largely overlooked: the copyright violations that resulted. Anxious to get some cheap page views out of the article everyone was talking about, Time.com and Politico both posted full-text versions of the story on their sites, even though doing so couldn't possibly be construed as legally protected fair use.
In his New York Times column Monday, David Carr points out the absurdity of big media companies arguing in court for stronger copyright protections from Internet free-riders while behaving like those free-riders when it suits them. Time says posting the story was a "mistake," but Politico co-founder Jim VandeHei, while acknowledging that Rolling Stone had a "reasonable objection" to the theft of its intellectual property, seemed to defend his site's action by noting that the story "was being circulated and widely discussed among insiders" even though it had yet to be published.
That made me wonder: Does an article that hasn't been published yet still enjoy copyright protection?
Is Unpublished Work Still Protected?
"Absolutely," says Lloyd Jassin, a New York attorney who specializes in copyright and intellectual property law. In fact, he continues, "unpublished works are entitled to greater protection than published works. Why? Copyright is an economic construct that reward creativity. If the author or publisher of a work hasn't been allowed to benefit economically from the work he created, its weighs heavily against finding fair use."
I'd been under the impression that it's the act of publishing that establishes something as copyrighted. But that's not the case, explains Jassin.
Copyright protection "kicks in" immediately upon fixation in any tangible medium of expression. That is, whether you chisel something in stone or store it in Word, it's protected immediately upon its being recorded, whether it is chiseled in stone, set down or paper, videotaped or saved to your hard drive.
There you have it.