According to copyright law, you are a creative artist.
For some of you, this isn’t news—you may already think of yourself as an artist of some sort, maybe a copywriter, a photographer, or a graphic designer. Some of you even make a living from your work. But copyright law doesn’t care; it treats the crayon scribblings of my 2-year old exactly the same as the latest David Hockney painting. If you write a blog, sketch on a napkin, take a vacation snapshot, or author some Javascript code then you’re covered under the law.
Of course, nobody’s going to confuse my son’s drawings with a Hockney (he’s more of a Pollack), but copyright law leaves it to the marketplace to determine the relative value of creative works. The law itself grants equal protection to all creations, from a short video captured on a cell phone to the latest Steven Speilberg film, or from a simple blog post to the next J.K. Rowling novel.
If you already think of yourself as an artist, you may have a rough concept about what rights you get under copyright law (although you probably haven’t looked much at specifics). But even if you don’t directly profit from your work, you should still learn what rights you are afforded under the law.
In case you hadn’t noticed, we live in a content-saturated world. Not only have modern technologies made it easier than ever to distribute content around the globe, new businesses spring up all the time to create, deliver, or aggregate content. Moreover, businesses that never thought of themselves as content-driven are turning to new media tools like blogs or online video to promote their companies and products, and that content can be every bit as important to your brand or personal image as traditional marketing.
With all that content floating around, the urge to swipe someone’s existing work instead of creating a new one can be too tempting to pass up. Take, for example, the case where Virgin Mobile swiped a teenager’s photo from Flickr for an ad campaign.
Not all cases of infringement are that egregious, but infringement of any kind entitles the copyright holder to damages. While this Flickr example remains unresolved, any artist who knows his rights under copyright law stands a much greater chance of getting money from an infringer.
The purpose of this series of articles is to give you a basic understanding of three key principles of copyright:
- Which works are covered by copyright law,
- What rights you get as the author of those works, and
- Steps you should take to protect your rights.
A brief note: For the purposes of these articles, I will only discuss newly created works, specifically those created after March 1, 1989. The rules are different for works created before that date, and if you have any questions about older works you should consult with a copyright attorney.
Step 1: Understand whether your work qualifies for copyright protection.
Copyright protection applies to a large class of creative works, so chances are your work is covered. As with most questions involving legal protection, however, there is plenty of grey area at the margins. Therefore it is useful to understand both the purposes and the limits of the law.
Copyright law has its roots in Article 1 Section 8 of the Constitution, but for practical purposes the best source of the law is Title 17 of the United States Code. Also, unlike other areas of intellectual property law, copyright is almost entirely federal law; Congress specifically pre-empted state laws in the copyright statute.
Section 102 of Title 17 broadly defines what works are subject to protection: “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
You’ll notice that two requirements jump out from the text: (1) the work must be “original” and (2) it must be “fixed.” I’ll discuss both in turn.
Test 1: Is the work original?
The Supreme Court has spoken directly to the originality requirement, and the bar it sets is pretty low. Justice O’Connor, writing for the Court, said that “original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” (Language from Feist Publications, Inc. v. Rural Telephone Service Co., Inc., emphasis added.)
The Court goes on to stress that “original” is not the same as “novel” or “good.” Copyright law passes no judgment on the quality of a work, even if the work is so common as to constitute a cliché. All that matters is that (1) you created the work (or were part of a team of creators), and (2) the work isn’t an exact copy of some other work or doesn’t consist entirely of unprotectable elements like facts, dates, or works already in the public domain.
Even works consisting of these unprotectable elements can get some protection for the arrangement of them. Take, for example, the “Harper’s Index” feature of Harper’s magazine. Each month, the editors of that feature present a compendium of facts and data in a way that is often both amusing and thought-provoking. Copyright law doesn’t protect the facts themselves, no matter how difficult they may have been to compile. But Harper’s arrangement of those facts, and even its phrasing of the data it presents, can be protected.
Before we move on to the fixation requirement, a quick note on authorship. In most cases, the person (or group of people) that creates an original work is considered the author for purposes of the statute. In certain circumstances, however, the work made for hire doctrine may apply. The most common of these circumstances is when you create a work for your employer as part of your job. In that situation, your employer is considered the author of the work and it gets the benefits of copyright law. Other specific scenarios can trigger the “work for hire” doctrine, but the details are too complex this article. The topic is covered in Section 101 of the Copyright act, and you should consult with a copyright attorney if you have questions.
Test 2: Is the work fixed in a tangible medium of expression?
If the “originality” test is easy to meet, then this one is a true cake-walk. To rephrase the question, you should ask yourself “have I actually produced this work, or is it still just a thought in my head?” If you’ve expressed the work in any tangible form that can be perceived by other people then you’ve met the requirement.
It is important to understand, however, that copyright law only protects your particular expression, not the idea that underlies it. For example, if you have an idea to write a children’s book chronicling the adventures of a boy wizard at magic school, you don’t gain any protection on that concept until you actually write the book. But even once you’ve written the book, you still can’t prevent another person from writing their own “boy wizard” tale so long as he doesn’t directly appropriate the creative elements of your story (like the sport you invented involving flying brooms and golden balls).
If you need to protect your ideas, you can turn to legal tools like nondisclosure or confidentiality agreements, or possibly even trade secrets law. These concepts are governed by your state’s law rather than copyright, and are beyond the scope of this article.
As I mentioned above, determining whether a work qualifies for copyright protection can have some gray areas, but usually the analysis is straightforward. For a deeper look into copyrightability, you can consult Section 102 of the copyright statute for a broad list of items that qualify for protection, or you can look up Title 37, section 202.1 of the Federal Regulations to see specific items it excludes from coverage. If you have any questions about your particular works, you should consult with a copyright attorney.
Step 2: Know what rights you get under copyright law.
Once you’ve determined that your work qualifies for copyright protection, it is important to know what rights you are granted under the statute. First, however, you should know that you, as the author, don’t need to do anything in order to get copyright protection. We’ll discuss registration and notice (and why they are good ideas) in more detail below, but newly created works get legal protection even if you do nothing.
Copyright law grants six specific rights to the authors of creative works; they are in Section 106 of the copyright statute and include the rights
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
That’s it, six rights—and not all of them will apply to any single work. But this is a case of elegance in simplicity, and these six rights combine to grant the copyright holder a broad monopoly over her work. Most of the rights are straightforward, although determining what is a derivative work (essentially an adaptation) can be more complicated. There is also the concept of Moral Rights, covered in section 106A of the statute, but it is beyond the scope of this article.
The statute does include some exceptions to these exclusive rights in sections 107-122 of the act. These exceptions include things like “fair use” and use by libraries. Most of them only apply to specific scenarios, although the “fair use” doctrine is another complicated area and will be the topic of a future posting.
Section 106 grants authors the rights both “to do” and “to authorize” any of the above rights. If you are looking to profit from your creative work, it is important to understand the difference between these actions. Specifically, the “authorization” right enables you to control your work through licensing rather than selling your entire copyright to a third party.
Licensing will be the topic of yet another article, but in most situations a copyright holder should try to retain control by licensing uses of the work for specific purposes instead of selling the work outright. As a general rule, I urge copyright holders to grant only those rights necessary for your client to achieve his goals with the work, to specifically detail how the section 106 rights are to be used by the client or retained by the author, and to include any appropriate restrictions on each party’s exercise of their rights. Regardless of whether you sell or license your work, however, knowing the six rights covered by the statute will help you make more informed business decisions to benefit you and your customers.
Finally, you must understand your copyright rights in order to understand infringement. Copyright infringement is, by definition, the unauthorized exercise of “any of the exclusive rights of the copyright owner.” Infringement need not be intentional; simply performing one of the acts described in Section 106 will subject an infringer to liability. The extent of that liability depends on the steps that the copyright holder has taken to protect the work.
If you detect infringement of your work, you should take immediate action to ensure that you protect your rights and don’t lose your claim to the statute of limitations. While you can contact an infringer directly, it is usually a good idea to consult with a copyright attorney to clarify your legal position and develop an action plan.
Step 3: Protect your work with notice and registration.
The first step to protecting your work from infringement involves a common-sense approach: Identify the work as yours, include a copyright notice, and make yourself easy to find. These steps will reduce the chances that someone will steal your work and increase the chances that they will contact you for a proper license. For the most part, the law reinforces these common-sense actions by imposing higher damages on infringers who ignore or tamper with Copyright Management Information (CMI for short). CMI isn’t legally required, but the law favors works that include it.
The basic elements of copyright notice are the © symbol (or the word “copyright”), the publication year, and your name. But CMI goes further than that; with the prevalence of digital distribution, you can embed that notice into the metadata of your files and include other things like the title of the work and your contact information. All of this constitutes CMI and can help your work achieve heightened protection under the law.
While including copyright notice is a practical step to reduce infringement, however, it is of little legal use once you catch an infringer unless you register your work with the Copyright Office. Copyright registration triggers two sets of rights that are vitally important if you are going to recover damages from an infringer: (1) registration allows you to recover statutory damages, including enhanced damages for willful infringement when applicable, and (2) it allows you to recover attorney’s fees and court costs in many circumstances (although ultimately this is up to the discretion of the judge). To see why these two sets of rights are so vital, it helps to understand what options you have if you don’t register your copyrights.
When someone infringes one of your statutory rights, making your case for infringement is usually straightforward; if someone performed any of the Section 106 acts without your permission then you probably have a case. Even if you haven’t registered your works with the Copyright Office, you are still entitled to several remedies, including monetary damages and an injunction to prevent further violation of your rights.
But without registration, monetary damages are limited to your actual damages (i.e. the harm you suffered as a result of the infringement) plus the profits of the infringer resulting from his wrongful act. These amounts can be sizeable, but they aren’t always easy to prove and are usually subject to dispute. If your case goes all the way to trial then a jury will ultimately decide your damages based on the arguments and counterarguments of both parties—a process that will require significant legal expenditures.
The end result is well known by defense attorneys: without registration, it will often cost you more in legal fees to enforce your rights than you could hope to recover in court. This creates an incentive for copyright defendants to drag their feet and delay resolution of a dispute, hoping that you’ll get sick of paying your lawyer’s bills and just give up.
Statutory damages and attorney’s fees turn this calculus in your favor in several ways. First, the statutory damages provision grants a minimum of $750 per infringement and leaves room for a judge to award up to $30,000 per infringement based on the facts of the case (up to $150,000 in cases of willful infringement). This means that when you first seek damages from an infringer you’ll start with a concrete figure, and–assuming you can prove infringement–you’ll be guaranteed to recover something. Better yet, the attorney’s fees provision means that you have a good chance at collecting your damages AND sending your legal bill to the infringer. This creates significant incentive for the infringer to come to the table and negotiate a quick settlement.
Copyright registration itself is a fairly painless process, particularly since the Copyright Office introduced online registration earlier this year along with a reduced fee of $35 for electronic applications. Paper applications are still an option for a $45 fee, and the Copyright Office recently improved this process by consolidating its previously confusing mess of forms onto a single PDF-based Form CO (sadly, the old forms are still necessary for group registrations of certain types of work).
While the online registration won’t win many style points, it gets the job done, and the Copyright Office claims that electronic applicants will get their Copyright Certificates weeks sooner than those who file paper forms. Finally, the Copyright Office website has an extensive library of guides and other resources to help you answer your copyright questions and use its applications.
Many attorneys will gladly help you fill out these forms for a reasonable fee, but the Copyright Office designed them with non-lawyers in mind. If you have questions once you start the process, you may want to hire a copyright attorney to walk you through the application the first time you register a work so that you’ll be able to do register future works without assistance.
You can register a work at any time after you’ve completed it, but in order to gain the full protection of the statute you need to register your work before someone infringes it. For registering newly created works, however, you get a three-month grace period from the first publication of the work. Because of this grace period, many artists and authors simply set aside a chunk of time every three months to register all of the works they have created in the past quarter. This practice of “rolling registration” ensures that all of your works get full legal protection at all times.
Finally, a brief note on the so-called “poor man’s copyright,” whereby you supposedly establish ownership of a work by mailing yourself a copy of it and keeping the sealed letter until you need it. In short, this approach is basically useless. No cases I’m familiar with have endorsed this technique and, as others have pointed out, it is easy to forge. At most, this technique purports to establish ownership of a work, but as I’ve noted, this isn’t usually the main sticking-point in a copyright dispute. Only actual registration with the Copyright Office gains you the full protection of copyright law, and it establishes ownership to boot!
The three steps I’ve discussed in this article aren’t an exhaustive overview of copyright law, but they should give you at least a good idea of the basics. The good news is that by reading this far, you’ve probably already taken step 1 and step 2. How far you go towards protecting your work (step 3) will depend on your individual circumstances, but hopefully you at least have some background knowledge to inform your decision. As with any legal issue, you should consult a qualified copyright attorney to discuss your specific situation if you have any questions.
Disclaimer: This article may not be current, accurate, or complete at the time you read it. Furthermore, the article’s content should be construed as legal information and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney, and by reading this article you have not entered into an attorney-client relationship with its author.
