The ins-and-outs of copyright law may seem daunting for an individual or business to weed through, but the truth is that the basics are actually fairly simple. It’s in the modern era of social media, file sharing and convoluted, mile-long online consent forms where things get a bit complicated and there’s some grey area.
In order to get you and your business up to date on the important facts and myths of copyright law—what it does, and doesn’t cover – we’ve created this comprehensive guide. Let’s get right into it.
What is copyright?
Copyright is a set of legal protections for creative works "fixed in a tangible medium of expression", i.e., an original work set on paper, a canvas, hard drive or other medium that can be reproduced and retain its original characteristics. Therefore, copyright law protects a wide array of original works from novels, to photographs, and even the design of a ship’s hull. Copyright law endows the creator of a work with the exclusive right to:
- Distribute the work.
- Create copies of the original work.
- Authorize others to use a work.
- Perform a work publicly.
Protections granted by copyright law are wide reaching, but not absolute. There are territorial limitations to certain rights, as well as a fixed duration for protections that varies from country to country, although the author of a work shouldn’t worry about outlasting her copyright. With today’s laws, that’s basically impossible.
Does copyright protect ideas?
The “tangible” aspect of copyright protection law is important, as ideas, words and phrases are not considered “tangible” and cannot be copyrighted. Yet in some cases, they may have their own legal protections. More on that later.
How can material be copyrighted?
Contrary to popular opinion, it isn’t necessary to register a work in order for it to be afforded copyright protection. In fact, a work is copyrighted the moment it is “fixed”, or finished. As soon as the author puts down the pen, brush, or stops typing, and the work is suitably original, it is fully protected; no further action necessary. However, if the author(s) of a work wish to take legal action against someone using her work illegally, the work must be registered. There is no time limit on registering a work for this purpose, and we’ll cover this aspect of copyright law a bit later.
History of Copyright
Before we get into specifics about what copyright does and doesn’t cover, let’s take a brief look at the history of copyright law in order to gain some insight into how the laws evolved over time.
The beginnings of copyright
Copyright has always been linked to and shaped by the technology of a given period. During the Middle Ages, the concept of authorship over a work of art or writing didn’t really exist in its modern form. Before the advent of the printing press, transcribing a work by hand was a slow and painstaking process that left that little possibility of profiting from the sale of books, no matter who wrote them. Additionally, nearly all visual art was either religious in nature or commissioned by wealthy patrons. Often times, artists didn’t even sign their names to the work they produced. There simply wasn’t any need for copyright in this period.
With the invention of the printing press this changed. As printing books became simple and convenient, more and more printers were able to mass produce works and turn a healthy profit. Plagiarism and the wholesale printing of the works of others grew rampant and soon it became clear that regulation was necessary in the industry.
At the same time, the Enlightenment and its thinkers furthered the idea of intellectual property. As more and more philosophers, scientists and playwrights wrote and published works that stood apart from religious doctrine and commonplace wisdom, the idea that a creator ought to be credited for her work became the norm.
In 1709, the British Parliament passed the Statute of Anne, which granted a publisher or author the sole right to profit and reproduce a work for a fixed period. This is often considered the first true copyright law, and while modern copyright law has grown in complexity, in essence, the idea is the same.
Copyright in America
Copyright law in the United States generally followed the model laid down by its British forebears. The U.S. Constitution contained a Copyright Clause that stated to "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It was recognized at the time that in order to foster the conditions for novel ideas and discoveries to be advanced, authors must be afforded sole ownership and the right to profit from their work.
Again, the basic idea has remained the same, other than the fact that original American copyright laws only allowed for a 14 year term of ownership, after which a license must be renewed.
Before 1988, publishers and creators in the United States had to file a copyright notice in order to receive protection. During this year, the U.S. became a signatory of the Berne Convention, a mutual set of guidelines pertaining to copyright law that a large group of nations agreed to follow . The laws in the U.S. were revised in 1988 so that all copyrightable work was automatically protected upon creation, which was the case for most developed nations prior to the Berne Convention.
It wasn’t until the turn of the century that the advent of new content mediums such as powerful home computers and the World Wide Web, along with the increasing ease of digitally copying copyrighted material, necessitated a serious revision of certain laws, but we’ll get to that later.
Material Protected Under Copyright
As long as a work fits the “fixed and tangible” definition, and is suitably original, then it is protected by copyright. This means that a wide variety of works are included under the laws. These include:
- Computer software
- Films and other audiovisual works
- Musical works - film scores, arrangements, songs, recordings, etc.
- Literature – novels, short stories, plays, memoirs, journalism, etc.
- Visual art – paintings, sculptures, sketches, installations, photography, etc.
- Any works derived from another original work of the author
What cannot be copyrighted?
Like I said before, a number of things that may seem like they fall under the umbrella of copyright are actually *not* covered by copyright, and it’s important to know what they are.
- Names, slogans and brief phrases
- Ideas for works of art, ex: an idea for a song that hasn’t been written or performed, or the plot of a novel that has yet to be written
- Research materials or news
- Jokes and one-liners
- Anything considered a “useful article” cannot be copyrighted. This means something like a toothbrush or a lamp that performs a useful function and is not considered sufficiently original. This isn’t usually an issue but can be frustrating for designers specializing in…
- Clothing design. Clothing is considered utilitarian and not a work of art, therefore fashion is not granted copyright protection.
- Lists and recipes for dishes
- Computer code
Are there other forms of legal protection for intellectual property not covered by copyright?
I’m glad you asked. Many of the things not covered by copyright law may be covered by trademark and patent laws. Trademark covers slogans, catch phrases, names, logos and designs of a particular brand or recognizable commercial entity. These types of intellectual property are too brief to be covered copyright, but are granted similar protections. Trademarked material is indicated by the ™ symbol if the trademark is unregistered, or the little circle with the “R” inside (®) if the trademark is registered.
Patent, on the other hand, covers inventions, defined legally as “a novel solution to a problem that is a product or process”. The inventor is given certain rights for a limited period of time in exchange for a comprehensive public release of the details of her invention. In contrast to copyright, patent protection doesn’t actually grant the inventor the right to produce and profit from her invention, but instead bars all others from doing so.
Ownership of a Copyright
- Part of a motion picture or visual work
- A supplementary work
- A contribution to a collective work
- An instructional text
- An atlas
- A test
- A translation
- A compilation
- Answer material for a test
Rights of Copyright Holders
Whether the holder of the copyright is an individual, a business, or a collection of one or more authors, they are granted the same exclusive rights over the work. The word “exclusive” means that they alone hold these rights and nobody else may legally use the work in this manner.
What the exclusive rights of a copyright holder?
The owner of the copyright alone may:
- Make copies of a work and sell these copies, including digital copies.
- Create derivative works based on the original work for commercial purposes
- Sell or give up the rights to another party
- Broadcast or transmit the work by video or radio
- Import or export the work as she pleases
- Display or perform the work in a public forum
How long do copyright protections last?
The duration of a copyright is determined by a number of circumstances, including whether the work is owned individually or by a business, the type of work in question, and whether the work has been published or not.
Works published after 1978:
- For works published by individuals, the copyright is valid through the life of the author plus seventy years.
- In the case of work for hire, the copyright protection lasts for 120 years after creation or 95 years after initial publication, depending on what comes first.
Works published before 1978:
- Works published before 1923 all belong to the public domain, however translations of said works may still be protected by copyright.
- Works published from 1923 to 1963: 28 years from the publication date, and in the case of renewal, 95 years.
- Works published from 1964 to 1977: 95 years beyond the publication date.
These days, retaining a copyright is a lot simpler than it used to be. The rules that went into effect after the United States’ 1988 signing of the Berne Convention ensure that the creator of a work will not have to worry about losing copyright protection during her lifetime, although who knows what peculiar circumstances the future will bring about.
Fair Use and Other Limitations of Copyright
The exclusive rights granted to a copyright holder in the United States and other signatories of the Berne Convention are clear, however they are not absolute. There are circumstances in which a copyrighted work may be used legally in a limited fashion. The most common of which is the exception of fair use.
What is fair use?
Fair use is an exception to copyright law allowing others to use copyrighted works in a select set of situations without the requirement of asking for permission or paying the owner a fee. In order to determine whether your use of a copyrighted work falls under fair use protection, four factors are to be applied.
Factor 1: The Purpose and Character of the Use
This factor focuses on the reasons why copyrighted material is being used. Work that is used for educational or scholarly purposes is favored over work used with the intent to turn a profit. A judge is much more likely to label something fair use if the work used in a classroom for the educational benefit of the students.
A circumstance in which something educational is not protected by fair use would be if the party using the copied material is able to make money, like if the facts and findings within a previously published scholarly work are used by the publishers of an educational video available through retail.
The first factor in determining whether the copyrighted material used is protected by fair use is also the most important and heavily scrutinized in a court’s decision over a legal dispute.
Factor 2: The Nature of the Work
The number two factor in deciding whether the use of copyrighted material is covered by fair use is the type of work being used. Again, educational material such as something from a textbook or non-fiction work is more likely to be covered by fair use rather than something that is principally a work created for entertainment purposes, like an action movie or pop song.
Factor 3: The Amount of the Work Used
There are no definite parameters that state how much of a work may be quoted and still be covered under fair use, however a court will most always rule against someone who uses an egregious portion of a copyrighted work. For example, quoted a single poem in a biographical work is usually acceptable, but using an entire collection of poetry would most likely not be. The same goes for films and music; brief snippets or clips of a work are much more likely to be allowed than the reproduction of an entire song.
Factor 4: The Effect of the Use on the Potential Market
Will the use of previously copyrighted material substantially increase the market value of the work that borrows from it? Moreover, will the original work’s market value decrease after it is used by someone else? These are considerations that a court will make in determining whether something is covered by fair use doctrine.
Is parody covered by fair use?
It’s important to determine whether a work making use of copyrighted work is a parody or satire. A parody directly mocks the work in which it borrows from, whereas a satire borrows the aesthetics of a previous work in order to make a different statement. Typically a parody of a copyrighted work will be protected under fair use doctrine, while satire will not, although creators of parodies are often brought to court by the owners of the original copyright. Ultimately, a judge will use the four factors in determining whether a parody is protected by fair use.
An example of a court case that ruled in favor of the defendant is when the rap group 2 Live Crew used the first words of the Roy Orbison song, “Oh, Pretty Woman” for their parodical song “Pretty Woman”. The group had tried to obtain a license to use the snippet as parody but were rebuffed by the music publisher. They went ahead and released the song anyway, and the record sold 250,000 copies. When the publisher sued and the case went to trial, the Supreme Court ruled that since 2 Live Crew had only sampled a small portion of the original song and that the rest of the music and lyrics were different, the song was protected by fair use doctrine.
Another case where a supposed parody was ruled not to be fair use occurred in 1997 when Penguin publishing released a book by Alan Katz and Chris Wrinn, titled The Cat NOT in the Hat!, that borrowed heavily from the Dr. Seuss original. Because the work used copyright material in order to make light of the O.J. Simpson murder trial, rather than to make fun of the original work directly, it was labelled satire and not parody.
The Internet and Fair Use
Fair use is already a grey area, and on the internet the lines are even blurrier. Most cases concerning fair use and the internet have to do with copyrighted images being repurposed without the consent of the copyright holder.
Due to the ease of finding the perfect image via google image search for a review or blog post, it’s easy to forget that nearly all of these images are protected by copyright. All of the exclusive rights granted to a copyright holder for a book or a film are also given to the creator of images. As with any other case focused on determining if borrowed material is protected under fair use, the four basic criteria will be considered by the court. If there’s any doubt whether using an image procured by an internet search is covered by fair use, its best to just obtain the appropriate permission before using it. If permission isn’t granted, it’s simply not worth it.
Besides fair use, what are some other limitations of copyright law?
- Other limitations to exclusive rights include:
- The allowance for libraries and archives to reproduce a single copy or audio recording of a work.
- The right of a lawful owner of a copy or record of a work to resell her copy without the permission of the copyright owner.
- The right of an instructor or student to perform or display a work during class time for educational purposes.
- Making a recording of a publicly performed work (if it is legal to do so in whichever venue the performance is held) in the case that the performance is not sold or distributed and kept solely by the person doing the recording.
What is the DMCA?
The Digital Millennium Copyright Act (DMCA) was signed into law in 1996 by President Bill Clinton to address issues pertaining to the unlawful use of technology in reproducing copyrighted material. The act stiffened penalties for file sharing and other copyright abuses on the World Wide Web.
The law is not original legislation but in fact a national implementation of two treaties put forward by the World Intellectual Property Organization (WIPO).
What does the DMCA consist of?
The DMCA is made up of five provisions. Here they are:
Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act – Title I renders illegal any attempt to circumvent technology implemented by a publisher in order to protect from illegal copying. Therefore, if someone makes an illegal copy of a computer game and in the process overrides the built-in copy protection, she is not guilty of one crime, but two: copyright infringement and messing with the copy protection technology.
Title II: Online Copyright Infringement Liability Limitation Act - This part of the act details the requirements service providers must follow so as to be exempt from prosecution for copyright infringement when users of their service(s) violate copyright law. Title II was the most notable amendment to copyright law in the United States and remains controversial.
Title III: Computer Maintenance Competition Assurance Act – This allows people to make temporary copies of material while a computer is in the process of repair. For example, making a backup of your lawfully acquired copy of Windows 98 while you install a new hard drive.
Title IV: Miscellaneous Provisions – Title IV clears up outdated portions of U.S. copyright law relating to online education, libraries and archives rights in keeping copies of audio recordings and the transfer of movie rights. It also elucidates the responsibilities of the Copyright Office, the government body that keeps the records of copyright registration in the United States
Title V: Vessel Hull Design Protection Act – Perhaps the most unusual provision included in the DMCA, Title V adds copyright protection for boat hull designs. Previously, boat hulls were considered “useful articles” and not a creative work able to be copyrighted.
What powers does the DMCA grant internet service providers?
Remember that Title II of the DMCA protects internet service providers from legal persecution in the case of a user committing copyright infringement. The caveat is that the provider must take action in such a scenario to maintain that protection. This comes in the form of going after their subscribers for any and all possible cases of copyright infringement.
You or someone you know has probably received either notification of copyright infringement (in the case of illegal file sharing) or a DMCA takedown notice for posting content online, either on YouTube or a website, that violates someone else’s copyright. Sometimes this is fair, as illegal file sharing is--in fact—illegal.
But other times, your online use of the content in question might be completely protected under fair use doctrine. The problem is that because they receive so many complaints per day from corporations and irate content owners, no ISP is willing to wade through them and consider whether the “offense” in question is legitimate copyright infringement, or a perfect example of fair use. Since the DMCA necessitates they take action to protect themselves, ISPs will simply issue takedown notices in regards to every complaint.
This can be very frustrating when you know that you haven’t violated any rules. If you are certain that you are not in violation of the law, the best you can do is file a counter notice.
New Media Rights is a non-profit program connected to the California Western School of Law that specializes in legal services for internet users and entrepreneurs. They have an excellent guide available detailing how to file a counter notice in the case of an unjust DMCA complaint.
Opposition to the DMCA
Many websites and organizations operate in direct violation to the DMCA due to strong anti-copyright beliefs or a belief in the freedom of information. Websites like The Pirate Bay and WikiLeaks keep their servers in countries such as Sweden that don’t act as often on DMCA violations.
Social Media, Photography and Crowdfunding
The advent of social media platforms like Facebook and Instagram have opened up a whole new can of worms in the field of copyright law. Users share billions of photos a day without really knowing whether they are surrendering their rights to the material or not (spoiler: they are not), while many others share images they find on Instagram, potentially in violation of others’ exclusive rights.
If I post a photo to Facebook or Instagram, am I giving up my copyright?
Fortunately, photos uploaded on social media platforms are covered by U.S. copyright law in the same manner as any other copyrightable work. If you took the photo, it is yours (barring any sort of work for hire agreement). You own the copyright. This is covered in both the Instagram Terms of Service and Facebook Terms of Service.
The flipside to this is that if somebody takes a photo from one of these platforms and posts it on their own, either passing it off as their own, or then you are possibly committing copyright infringement. If someone makes a complaint to one of the services, they may take down your photo.
What do I do if somebody uploads my photo without permission?
If your image is taken without your permission and posted without giving you credit in manner not covered by fair use doctrine, then you have the right to take action. The first step should be to file a complaint with the service in question. It is likely that they will either remove the photo themselves or message the offender and request that they take it down.
If this does not work, you may proceed with legal action. We’ll cover that below.
Trademark violation on Facebook
Sometimes the likeness of a long deceased person posted on Facebook can provoke a legal uproar. A notable example of this occurred in 2012 when clothing company Burberry posted an image of iconic Hollywood actor Humphrey Bogart on their page. Bogart LLC--the corporation claiming to other the rights to the likeness of the late actor--publicly complained. Both parties raised to file suits—Bogart LLC accusing Burberry of trademark violation (rather than copyright violation), while Burberry claimed they used the image legally, without the intent to sell merchandise.
The dispute was settled between the two parties, although no information was given about the agreement. The moral is that even posting a 70-year-old image on a social media site can trigger a legal battle, so it’s best to err on the side of caution.
Crowdfunding and copyright
Crowdfunding is a relatively new and popular way for individuals and companies to receive funding for new projects in the form of many small donations from users of the Internet, usually in exchange for a token gift.
Just like in the case of social media platforms, copyrighted material is protected the same way it is in any other situation: rights to the work belong to the creator. However there are potential legal hazards associated with crowdfunding that are beyond the scope of this guide, so it’s important to be informed about what they may be.
Any violation of the exclusive rights of a copyright holder is known as copyright infringement. Here are some of the common forms of copyright infringement:
Plagiarism: Plagiarism is the act of taking someone’s work or ideas and passing them off as one’s own. In the Internet age, plagiarism has run rampant. It is easier than ever to copy and paste from online sources without appropriate citation. Luckily, a google search will most likely expose violators. If you are concerned that you or your company might be accidentally committing plagiarism, there are a number of online plagiarism checkers. Just copy and paste your content into the application and it will tell you whether or not you should be concerned. Grammerly.com runs a popular and effective plagiarism checker.
Improper use of photographs: With so many images available via google search, it is easy to either intentionally or accidentally use a copyright protected image. Fixing a watermark onto an image is a good way to dispel potential violators.
Piracy: This refers to the illegal reproduction and distribution of copyrighted works online, through p2p file sharing, torrenting or otherwise. With the ease of using a virtual private network (vpn) to veil an IP address, and the ubiquity of torrent servers, it is more difficult than ever to protect against this type of copyright infringement.
Freebooting: Freebooting is the unauthorized re-hosting of copyrighted material on the internet, usually with films, television shows, and sporting events. This can occur on YouTube or other streaming websites.
How to take legal action against copyright violators
While post-Berne Convention, all work is protected by copyright after creation, in order to take legal action against those violating your copyright, you must register your copyright with the United States Copyright Office. From their website, it’s quick and easy to both register a copyright, and file an infringement claim.
Licensing Copyrighted Material
Copyright holders have the exclusive right to license out their work, either for merchandise, or use in a separate work. In a merchandise license agreement, the licensee usually agrees to pay the copyright holder a percentage of the profits in return for use of the material. If the licensee does not follow the terms of the agreement, the license may be suspended.
What is Creative Commons?
Creative Commons is a non-profit focused on building a body of creative work that is available publicly to share, tweak or improve upon as one sees fit. There are several licenses available to the public that allow people to be transparent about which rights they are willing to waive and which rights they prefer to reserve. Acquiring a Creative Commons license is considered a much better way to share work publicly free of charge without surrendering all rights to the work, in the case of releasing something to the public domain.
How do I apply for a Creative Commons license?
What is the Public Domain?
Public domain refers to works that are not protected by copyright. This includes works in which the copyright has expired and works that were never copyrighted in the first place.
Which works belong to the public domain?
Every work created before the application of copyright law, like the works of ancient philosophers such as Plato and Aristotle, or Chaucer’s The Canterbury Tales, are in the public domain.
Additionally, work in which the copyright has expired, including all works published before 1787 (or in the U.S., before 1923) belong to the public domain, as well. The writings of Jane Austin, H.G. Wells, and Mark Twain are included in this group.
How does a work fall into the public domain?
A work becomes public domain after the period of copyright protection has expired, and not renewed. The length of this period varies from country to country, but for all of the countries party to the Berne Convention, this is 50 to 70 years after the death of the author or creator of the work.
What about films?
Many films in which the copyright has expired or the license was not renewed are now public domain. Before 1988, the law stated that all films copyright license must be renewed before the 28th year after it was released. Therefore, many films released before 1960 are public domain. Post-1988, this action was no longer mandatory.
Films with a missing or incomplete copyright notice, or in some cases adaptations of older written works in which the copyright has expired also belong to this group.
Oddly enough, in some situations a film might become public domain while its soundtrack maintains its copyright, as in the case of 1963’s Charade.
All work created by U.S. government employees for government use are part of the public domain from the outset. For state and local authorities, this is not necessarily the case, and the laws vary from place to place, and depend upon the terms of the agreement between the employee and the contracting party.
Can you release a work to the public domain?
Yes, it is possible to surrender copyright ownership for a creative work and cast it off into the public domain, but it is rarely done since preserving ownership while granting free access is widely considered a better option. For those who really want to give up rights to a work, they must:
1. Request a CCO license from the proper authority.
2. Display the no copyright symbol (a “c” in a circle with a slash running through it) on the work.
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I'm an entrepreneur myself. When talking to others who want to start their own business, they often get wrapped up in the nitty gritty of paperwork and forming the company. They forget that what really matters is customers, sales, and profit. That's why I created How to Start an LLC.org: a simple resource and guide so you can spend less time on forming your company, and more time on building it.
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