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.
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:
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.
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.
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.
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.
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 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.
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:
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.
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.
The owner of the copyright is whoever creates the work: your song, your painting, your photography, your building design = your copyright. It’s that simple...except when it isn’t.
If two or more people collaborate on a creative work, then they share the copyright. This is called joint ownership.
The contribution of each party does not have to be equal; one author may contribute to a mere fraction of the work and still be granted copyright protection. However, each author must be able to present the part of the work that they contributed, and merely giving someone else the idea for something does not qualify.
In other words, if a songwriter writes the chorus of a song, or a painter paints all of the trees in a giant landscape painting, they are granted copyright protection. If a songwriter says “this part should have more guitars”, or a painter says “you should paint more trees there”, i.e., making suggestions rather than truly contributing, they are not given joint ownership for the work.
Without any prior agreement specifically stating otherwise, any co-owner of a work is allowed to use the work herself as she sees fit, without consulting other authors of the work, even if her part is a small fraction of the whole. Joint ownership designates that each contributor maintains ownership over the entire work.
Obviously, awarding copyright for collaborative works with two or more authors is rather complicated. A great deal of the court cases involving copyright are disputes between co-owners or alleged contributors over rights to works. This is complicated by the fact that if a co-owner dies, their copyright does not revert back to the other author(s), but instead is passed over to their heirs. Think of past legal disputes between Courtney Love and surviving members of Nirvana.
Detailed in the U.S. Copyright Act of 1976, “work made for hire” describes work done by an employee for an employer wherein the rights to the work are wholly passed over to the employer. This does not determine whether the original creator receives credit for the work or not, as that is up to the party who commissions the work.
Surrendering the rights to a work will be:
1. Part of the initial terms of employment. OR
2. Tendered in a written agreement covering a contribution to a collective work such as a textbook, a movie, test material, an atlas, a compilation or other works in this vein.
In the case of an employee working for an employer, the agreement is pretty much set in stone, and there can be little argument over who owns the rights to the work in question. Yet, in the second scenario, things get trickier as it covers independent contractors commissioned exclusively for a particular work.
In this circumstance, a work for hire agreement between a contractor and employer is not enough for the employer to retain the copyright to the work. Other conditions must be met, or else the contractor will retain the copyright. This aspect of the law was made clear in a famous court case.
Community for Creative Non-Violence v. Reid
A sculptor named James Earl Reid was commissioned by a Washington DC area homeless charity known as the Community for Creative Non-Violence to create a statue recognizing the difficult lives of homeless people that would be presented at a local Christmas pageant.
While CCNV gave Reid input on how they’d prefer the statue to appear, an agreement over who would own the copyright was never ironed out, and both parties filed competing claims for the rights to the work. The case went to the district court, who ruled in favor of CCNV, deciding that the work qualified as a ‘work for hire’ under the laws stated in the United States Copyright Act of 1976.
However, Reid appealed the court’s decision and the case went all the way to the Supreme Court. Eventually, the Supreme Court ruled in favor of Reid, deciding that he was an “independent contractor” rather than an “employer” because he made the statue in his own studio using tools he had purchased and even paid for the delivery of the statue with his own money.
11 conditions that must be for the work of an independent contractor to be considered a work for hire
In the aftermath of the Supreme Court’s decision, they listed eleven conditions that are necessary for the commissioned work to be considered a work for hire, otherwise the creator retains all rights to the work. These conditions are:
Whether you are an employer or independent contractor, it is very important that you make sure that the details of a work agreement are clearly meted out in writing, depending on if you wish to hold the copyright to the work in question. Meeting the conditions listed above will help you to avoid potential legal headaches in the future.
For writers, photographers, artists and other independent contractors, it’s fine if maintaining the copyright to a commission work isn’t a priority for you, just know that written agreements that follow the necessary guidelines are legally binding and nearly impossible to overturn.
A collective work shares properties with both individually owned works and work for hire. Usually, it describes an assemblage of the work of several different authors published by one individual or entity that owns the copyright of the work as whole, while each contributor reserves the right to reproduce her individual contribution(s) as she sees fit. Magazines and literary journals are most often collective works, although there are exceptions to this rule.
LLCs and corporations own the copyright for any work created by employees of the business, unless the work is commissioned off to an independent contractor and the agreement does not meet the guidelines stated above in the ‘wire for hire’ section.
The rights granted to a business are basically the same as if the copyright was held by an individual, although the length of copyright protection may be different.
The copyright symbol, while iconic (I’m sorry), is no longer necessary to indicate that a work is protected by copyright. This is one of the changes brought into effect by the U.S.’s agreeing to the terms of the Berne Convention in 1989.
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.
The owner of the copyright alone may:
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:
Works published before 1978:
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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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