QUICK GUIDE TO COPYRIGHT LAW
1. What does it mean to have a “copyright” and how does it work?
Having a copyright for a work, such as a piece of writing, art, music, etc., means you “own” the intellectual aspects of the work, and it is your property (“intellectual property”), much like you own physical objects such as a computer. This means you have the right to determine what happens with that work, to prevent or allow others to use the work, and to make money from the work.
Owning vs. right to use (licensing)
When you own the copyright to a work, you essentially have full control over it. When someone else owns the copyright to a work, the owner may allow you the right to use the work in certain ways, which is called “licensing” or “granting a license” to use the work. See more about licensing below.
2. What types of works can get copyright protection?
Many types, as long as the work has sufficient creative and original content:
- Writings (of substantial length, usually more than 100 words, but there are no exact rules here); includes books, articles, blog posts, etc.
- graphic designs
- street art
- fashion (limited)
- Business plans and charts
3. What can’t I copyright?
- Copyright does not protect ideas, concepts, systems, or methods of doing something. But you may be able to get a patent for these.
- Copyright also doesn’t protect titles, names, short phrases, or slogans. But if you are using these in the context of a business, you may be able to get a trademark.
4. What specific ways does copyright protect my work?
As the creator of a work, copyright protection gives you the exclusive rights to:
- Create derivative works
- Reproduce the work (make copies)
- Distribute copies by sale or rental, or lending
- Perform/display the work publicly
- Music: perform work by digital audio transmission
5. How do I obtain copyright rights to my work?
Copyright protection is not all or nothing, protected or not protected. There are various degrees of copyright protection, such as whether it is easier or harder to sue someone for copyright infringement, and how much money you could win for an infringement claim.
For most work you create, you own the copyrights automatically as soon as you create it in a fixed form (such as typing, writing or recording it), and nobody else can copy your work without your permission. It doesn’t even need to be published, and you don’t even need to register with the U.S. Copyright Office. This is the “base level” of protection. Ways to increase your copyright protection include:
- put a copyright notice on the work using © (c in a circle) (see below)
- registering with the U.S. Copyright Office
6. Should I register my work with the U.S. Copyright Office?
It’s not strictly required. But there many advantages to registering a work with the U.S. Copyright Office, in particular:
- you could probably get more money when you sue for copyright infringement
- you gain very strong evidence that you own the copyright in case you need to sue for copyright infringement
Although you may register your work at any point, to get the two advantages listed above, you must register within 3 months of publication of the work (or prior to an infringement) for the first, and within 5 years of publication for the second advantage.
7. How do I add a copyright notice to my work? What does © (the letter C in a circle) mean?
The © symbol gives others notice that you, the (presumably) copyright holder intend to protect your copyright.
Whether you register or not, you can use this symbol to let people know you intend to protect your work (though it isn’t strictly necessary). Just put it in the form of © [year first published] [your name], All Rights Reserved.
Example: © 2016 Jane Doe, All Rights Reserved.
8. “Work for hire” and assigning or transferring your rights
The concept of “work for hire” (aka “work made for hire”) can apply to both employees creating work for their employer, as well as freelancers/businesses creating work for clients.
Does my employer own my work?
For employees, creative work done for your employer within the scope of your employment is generally considered “work made for hire,” and your employer probably automatically owns the rights to all of it. Also, if you signed an employment contract, you may have agreed to transfer your copyrights to work done on your own time and not even for the employer! (check your employment agreement, although note that some of these provisions may not hold up in court)
Does my client own my work?
For freelancers or creative businesses, if someone (usually a client) asks you to create content for them, you generally own the copyright for that content unless you have a written agreement that says otherwise. If you do not have a written contract, the client would only have the right to use the content (a “license,” see below for details).
However, clients often will require you to sign a “work for hire” (aka “work made for hire”) contract with them that states that they will automatically own the copyright to the work you create for them. But work for hire agreements are valid only for certain types of work (generally limited to a contribution to a collective work, such as a blog, magazine, or film). You may instead agree to assign/transfer to the client the copyrights to the work, which gives you a bit more protection. To maintain the most control of your work, you can agree to give the client only a limited license to the work (see below).
9. What should I do if I see a website stealing my copyrighted material?
You have the right to require that any website that displays your copyrighted materials without your permission quickly remove it from the site.1Digital Millennium Copyright Act (1998) You simply need to send them a “DMCA Takedown Notice.” See here for details.
10. Licensing – allowing others to use your work
There are 2 types of licenses – exclusive and non-exclusive. Giving someone an exclusive license means that person is the only one who can use your work or decide whether others can use it or not (not even you can use it anymore!).
Giving someone a non-exclusive license is allowing them to use your work, while allowing yourself the ability to continue using it and to continue allowing others to use it. You can usually set limits on how they use the work.
To give someone an exclusive license, you must put it in writing and sign it. It’s not necessary for a non-exclusive license, but it’s generally better to do this.
11. Exceptions to copyright protection – “fair use”
While you usually can prevent others from using your work, there are some exceptions when the work is used in certain ways, called “fair use.”
Others can legally use your material for criticism, parody, comment, news reporting, teaching, or research, subject to four factors:
- portion of work used, and whether it goes to the heart of the work;
changing a work: if a change is “transformative,” it is likely fair use; if not, may be illegally derivative
2. nature of work, e.g. photo, audio; artistic works less likely to be fair use as opposed to factual works;
3. nature of use (for profit vs not for profit). Using a work without intending to profit is more likely to be fair use; but parody is considered fair use, even when it’s for the purpose of profiting; AND
4. effect on potential market and other actors; “is this a substitute for the work?”
12. Copyright and photography
You own a photo when you have actually pressed the “shoot” button or instructed someone else to, regardless of whose camera you use and regardless of who is in the photo. (See for example the macaque monkey who grabbed a man’s camera to take a selfie. The macaque would have owned the photo except for the fact that he wasn’t human.) So merely the fact that you are in a photo does not give you any ownership rights to it whatsoever. (But you may have the right to stop others from making money from a photo of you)
13. Copyright and the Internet/Social Media
Do I have rights to content I create and put on the internet or social media?
In general, yes. Copyright law applies fully to the internet, but it does get tricky, particularly for social media. The original content you create and post on the internet and social media, including blog posts, status updates that you write*, or photos/videos that you have taken or created**, is generally your property and you own the copyright. This means you get to decide what to do with the content, and what others do or don’t do with it.
*Writings need to be a substantial length to be given copyright protection. There is no exact number of characters or words to qualify; a tweet probably is too short, but it’s not impossible to copyright a tweet.
**You generally own a photo when you have pressed the button to take the photo. It doesn’t matter if you are in the photo or not. However, make sure the subject matter of the photo doesn’t violate privacy law.
Can I post someone else’s picture, video, or writing on my social media?
Simply retweeting/clicking “share” under a Facebook post is most likely fine, as it can be implied that the creator granted permission by putting it on social media (and many social media Terms of Service say that by posting something, a user grants others a license to share it).
But if someone has NOT put their work on social media, you should probably not do it for them. You can’t use someone else’s content without their permission, unless it falls under “fair use” (see above). If you can’t get the creator’s permission, stating who created the work (“attribution”) and linking to the creator’s website is a very good idea. Although even doing this, your post could still violate the creator’s rights. But it’s up to the creator of the content to decide whether to enforce their rights.
14. Copyright and film
Who owns the copyright to a movie?
Usually this is determined in advance by the various people involved in making the movie. But if it’s not, the producer generally has the exclusive copyright, not the writers, directors, or any of the actors.
PROTECT YOUR WORK
- File a copyright registration on your own here (though we recommend having a lawyer do it)
- Find a great intellectual property attorney
- Make it logistically harder for people to steal your copyrighted materials
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|1.||↑||Digital Millennium Copyright Act (1998)|