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LESSON 2 - Terms of Use & Copyright

I know everyone is anxious to just create new files to share, but there are so many things we must cover before we can do so. 

It only barely touches the basics.  There is so much more that I could share, but I tried hard to keep it to a minimum.  Do not rush through this lesson, but really read what is written about copyright and understand it.  Ask questions if you do not.

I do hope that you learn some vital information with this lesson, not only as a designer, but as a consumer of digital scrapbooking products.

Please note that the lesson is so long that it is in two posts.  You MUST answer the questions in #1 to receive credit, as well as do #2.

Copyright & Terms of Use

DISCLAIMER: I am NOT a lawyer and am NOT licensed to practice law. This is my general understanding of copyright law as an average United States citizen.


PART 1 - COPYRIGHT - First, we will discuss very briefly the topic of copyright. I am not an attorney and cannot give out legal advice, but I can teach and share with you some basics of copyright so that you can be pointed in the right direction to learn more.

Because the internet is global, the need for an international agreement to govern copyright is vital. This came about with the Berne Convention. You can read more about the Berne Convention, including a list of the countries participating, on this Wikipedia page:

Although first established in 1886, the United States did not join the Berne Convention until 1989. In the United States, copyright and intellectual property rights are known as "Title 17."

Copyright is the "right" to retain ownership of an original work. The works which we are interested in are similar to paintings. Each and every photograph that we take is an original work of art and the owner automatically retains copyright without any action. This is the same for each and every graphic artwork we create. In other words, copyright is established immediately without any act upon the creator.

The Berne Convention sets forth the duration of the copyright as the life of the artist plus a minimum of 50 years. Thereafter, each country sets forth further standards. In the United States, the length of a copyright is the life of the artist plus 70 years.

When holding down the alt key and pressing the numbers 0169 (on the numeric keypad), you can create the copyright symbol to give notice of your copyright. For instance, copyright©HummieLastName 2009 is a full copyright notice and 2009©HummieLastName is a short copyright notice. The year can be placed before or after and the lifespan of the copyright begins on this date. If you make alterations to the original work, the original year and additional years must be listed. However, it is not necessary to give a copyright notice to retain your copyright. It only helps should a legal course of action be pursued.

It is permissible, of course, to utilize your full name in a copyright notice. It can be problematic as to whether or not a designer name or a brand name can be utilized without a trademark. This gets into trademark laws and, once again, I am not a lawyer! 

You can register a copyright, but the steps to do so are detailed. There is more information on registering your copyright here: 

Since you own the copyright to your original creation automatically, you have the right to give away or sell all or a portion of the copyright. In the digital scrapbooking world, this is generally done through the "Terms of Use" file. Sometimes it is done through private e-mail upon personal request. For instance, a designer may give away the right for others to utilize creations for "commercial use," which is to allow others to change a creation and redistribute it with/ without restrictions. In the act of giving or selling copyright establishes a contract between two people, but we will not get into contract law! 

The legal terminology for "commercial use" is to grant a "derivative copyright." In other words, the creation is derived from another copyrighted work.

What is "fair use?" It is a loophole in the law that can make litigation interesting! Fair use is the ability to use an artwork (or writing) in a manner that does not harm the potential market or value of a creation. When claiming fair use, one must specifically set forth the original copyright. For a general understanding of fair use, consider the credits which you must give when quoting someone in a writing. Consider the use of a teacher who is sharing a piece of artwork to discuss principles of art, but does not claim the artwork ownership, but states the creator to the class. In the same manner, this is why we give credits when we share our layouts online. We are claiming fair use of the creation in a way that does not harm the potential market or value of the original creation. (In fact, most often, we are helping to increase the value!) 

Watermarks are often used with photographs as a way to give notice of a copyright. However, since our graphics in the digital scrapbooking world are actually utilized by others to make layouts, we cannot put a watermark on the image.

PART 2 - TERMS OF USE - Often the simple copyright notice is followed by "all rights reserved!" A "Terms of Use" file can be as refined or as detailed as you want to make it, allowing you to give very specific notice. I have even seen some whacky TOU files that are short and sweet giving away all rights. In other words, "no rights reserved!"

What is public domain? Public domain are works that are able to be copied and used by anyone. We will discuss public domain further in a future lesson as I am sure that you will be interested in learning more about public domain images that you might utilize in your own designs. However, for the purpose of this lesson, it should be noted that you can grant your copyright as public domain. This would be the same as saying "no rights reserved!"

When writing your own Terms of Use to be included in your download files, there are many items to consider. The TOU's can get very detailed.

At one time, a group of digital scrapbookers put together a set of icons to be utilized by all designers to make the TOU's easier to understand and universal. The icons never caught on. However, the website is still a wonderful place to visit in considering writing your own TOU's.

In addition, Flickr utilizes standardized icons and terms from a site which I believe is another great resource for understanding TOU's.

The below are terms which I feel you should consider in drafting your own TOU.

1. All rights reserved. No one can do anything with your images except those things which are valid through fair use. Of course, this would not be practical with designs as we create them for the purpose of use by others in layouts.

2. Personal use. This would be to allow others to use your designs in layouts and other projects for personal use. This would be granting the right for a derivative work for personal use only. Of course, the fair use would also apply.

3. Commercial use. This would allow others to use your designs to creative derivative works for commercial use. Commercial use would include sales as well as supporting graphics such as blog headers, blinkies, and logos necessary for business.

4. Non-commercial use. This would be to grant a derivative copyright to create other works with your graphics, allowing them to share those derivative works, but only as freebies (non-commercial use).

4. S4H/S4O. These acronyms stand for Scrap for Hire and Scrap for Others. This is a special niche in the digital scrapbooking world that has created a special need for terms to be conveyed. Scrap for Others is not as widely used as Scrap for Hire and it is unclear to me whether Scrap for Others is considered commercial or non-commercial. Therefore, the Terms of Use should specifically set forth details for S4O. Many S4H designers look specifically for designers who allow them to create layouts for other people for a cost with their products. There are lists of those who allow S4H so that those S4H designers may know where to shop. Allowing S4H can help to bring business.

5. Display. This would be to grant the right to copy a work for display unchanged from original format. An example might be a set of icons for blog use in which the right is granted to display on a blog.

6. Attribution. Does the person creating the derivative work have to give you credit when sharing the layout or selling the file for commercial use? Some designers do not require this and some do. This should not be confused with the owner retaining copyright. The owner of the original creation retains copyright even when credit is not required. As another example, a photographer could grant the right to display a photo in the original format online (i.e. blog post) as long as attribution is given.

7. Limitations. A creator can include any imaginable limitation in the Terms of Use such as the number of times the file can be used, what types of products it can be used in or not used in (ie. cards, crafts), etc.

Below are other factors to consider when drafting a TOU:

A. Be sure to list your copyright notice, whether using the copyright symbol or just claiming the copyright. This would be a good place to utilize the copyright symbol with your name.

B. Be sure to include contact information, including an e-mail address and a url to your site where people can easily find you again. You may have more than one url (i.e., store, blog, etc.).

C. What file format should be utilized? At one time, there was a movement to encourage people to use .jpg formats. However, .jpg formats are not always easy to read and the url's are not clickable or able to be copied and pasted in a browser. It makes it more difficult for the readers to understand and find you. I think that the push to utilize this file type was so that the icons as discussed above could be utilized. Often, the .jpg's are erased to save space by those downloading.

I would not suggest using a Word format as not everyone has the program. 

The best file type to utilize is a .txt document as all computers can read this file type. The drawbacks to this file type are that the icons cannot be utilized and the files cannot be protected. In a Windows OS, simply right click on the desktop or in a folder, choose "new," and then text document to create a new .txt file to draft the TOU.

Another great choice is to create a .pdf document because text and icons can be utilized and, in addition, the files can be protected from re-write. I understand that there is a possibility that someone may open a TOU and edit it to claim that a certain right had been granted, but in reality, when the document is saved, the date is also changed in the properties. It would take a serious guru to pull off such a deception.

Some people include both the graphic and the text formats, but the choice is up to you. Often digital scrapbookers grow weary of deleting so many files from the downloads and the more you include, the more frustrating it can be.

D. Offer a download of the current TOU online (ie. blog, site, store). If a TOU is inadvertently deleted, then there is no excuse for someone to be able to obtain a new copy. In addition, those considering purchases may want an advanced copy before making the choice to buy. Also, should a TOU be updated to replace older TOU's, this is one way to communicate the change. Of course, the updating of TOU's is a controversial topic I would rather not discuss.

E. Be sure to include in the TOU any credits for commercial use products utilized.

F. Add a personal note in the TOU. It is effective marketing.


1. What is fair use? What is public domain? What is derivative copyright? What is attribution? What are the three forms of copyright notice discussed? If you cannot answer all of these questions, go back and read again! E-mail me your answers or send me a private message.

2. Write a Terms of Use and share it for credit for this class. You may utilize my TOU as a starting point. Review other TOU's in kits you have already purchased for additional ideas of items to include in your TOU. Make the TOU as liberal and short or as conservative and limited as you require.

Read the Terms of Use definitions.
You are welcome to use the graphics on this page.

You are welcome to use some of my language, but make yours specific to you.

Copyright Cheryl Rutledge-Brennecke
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