In previous intellectual property articles overviews, we have looked at patents, trademarks, and trade secrets. Today we are going to explore copyrights.
Copyrights protect original works of authorship, including literary, musical, pictorial, and architectural works. They give the creator the exclusive right to reproduce, distribute, display, or modify (make derivative works from) their work for a limited time. Understanding copyright law is crucial for content creators who want to protect their hard work. This guide covers copyright basics, requirements, rights, infringement, and more.
What Types of Works Can Be Copyrighted?
Copyright is broken down into several broad categories of work, provided they contain at least a minimal amount of originality. These categories are:
- Literary works – Books, poems, magazine articles, blogs, manuals, etc.
- Musical works – Songs, instrumental pieces, lyrics, or accompanying music.
- Dramatic works – Plays, screenplays, choreography.
- Pictorial, graphic, and sculptural works – Illustrations, logos, diagrams, architecture, clothing designs.
- Motion pictures and other audiovisual works – Films, documentaries, some YouTube videos.
- Sound recordings – Albums, podcasts, audiobooks.
The list above covers most common works, yet copyright also protects pantomimes and choreographic works if they contain sufficient original content and are fixed in a tangible medium. Names, short phrases, methods, processes, and mathematical algorithms that lack originality cannot be protected.
For copyright protection to apply, a work must meet three core standards:
- Originality – The work must contain a modicum of creativity. It cannot be copied from elsewhere or be entirely factual. However, copyright requires less creativity than patent law. Even if thousands of similar works exist, yours can still qualify as original. Combining standard elements in a new way or adding your creative flair typically meets the standard.
- Fixation – The creative output must be “fixed” in a tangible medium, allowing it to be perceived or reproduced later. Unrecorded live performances and random ideas do not meet this requirement, but putting your words on paper, recording audio or video, and painting on a canvas all satisfy fixation. Even temporary versions stored on a computer hard drive count. The key is that your work is captured and preserved exactly for later playback.
- Independent creation – Your work must represent independent creation. You cannot copy or closely mimic an existing work. However, building on public domain material or using common themes or archetypes does not violate this standard. Nor does unconscious, coincidental similarity. Two authors writing similar books without knowledge of each other can both enjoy copyrights in their works. But actively basing your book on someone else’s violates their copyright.
Any work that satisfies these three standards—originality, fixation, and independent creation—merits copyright protection. Federal (Statutory) registration strengthens your rights but is not required. The moment your original expression gets written, drawn, filmed, or otherwise set in permanent form, you receive (Common Law) copyright protection. That means blog posts, homemade videos, doodles in your journal, and self-published books all secure Common Law copyright protection instantly. Registering for copyright protection with the US Copyright Office affords significantly more rights than Common Law protection, such as statutory damages.
What Rights Do Copyrights Provide?
Copyrights empower you with five fundamental rights regarding your work:
- Reproduction – You have exclusive rights to copy, reproduce, photograph, duplicate, record, reissue, or transmit reproductions of your work. This includes making both physical and electronic copies.
- Distribution – Only you can decide how and where to distribute copies of your work to the public. Whether by selling, gifting, renting, or lending physical copies or offering digital downloads, you regulate dissemination.
- Modification – You alone can create derivative works or adaptations building on your original. Translations to other languages require your authorization. Remixes that sample or alter your work also necessitate permission. While another’s parody of your work qualifies as “fair use” in some cases, even parodies risk lawsuits if deemed unfair or overly derivative.
- Display – You decide where, when, how, and for how long to exhibit your work. This includes showings in theaters, galleries, trade shows, shop windows, and the design of products. Public displays without consent violate your copyright.
- Performance – You have exclusive rights regarding live performances of your work. For example, only you can decide who performs your play at any given venue or if your song gets broadcast on the radio or Internet.
Simply, copyright allows you to permit or prevent nearly all copying, modifying, showing, playing, or communicating of your work to the public. Others can privately enjoy your work under fair use exceptions, but even private copying beyond reasonable personal use risks penalties.
How Long Do Copyrights Last?
The term of copyright depends on when your work gets created and the type of work. Under current US law, these limits apply:
- Works created on or after January 1, 1978 – The copyright lasts for your entire life plus 70 years. Co-authored or joint works expire 70 years after the last surviving author’s death. Collectively authored anonymous or pseudonymous works see copyright for 95 years from publication or 120 years from creation (whichever comes first).
- Works published before 1978 – The term is 95 years from publication or 120 years from creation for older works as applicable based on different laws effective at the time. No new works remain under these deprecated copyright periods. All still-protected works now qualify for “life + 70 years.”
- Works made for hire – The term here equals 95 years from publication or 120 years from creation. “Works made for hire” are those created within the scope of employment or works commissioned for use in collected works. The hiring party or publisher, not the creator, owns the copyright. So the term lasts from first publication or creation, not tied to the life of any particular individual.
While copyright confers formidable rights, it is not perpetual. Eventually works enter the public domain, granting all manner of rights to access, reproduce and leverage the work. So copyright protects creators for many years while granting future innovators a chance to build on that foundation. It is illegal to use works still under copyright without the owner’s permission, but there are no use restrictions on works which the copyrights have expired.
What Are Common Examples of Copyright Infringement?
Copyright violations diminish creators’ rights and undermine innovation that fuels America’s arts, entertainment, and innovation. Infringement examples include:
- Commercial piracy, distributing copies of books, blogs, films, music, or art without the permission of the copyright owner. File-sharing sites supporting piracy inflict severe financial harm.
- Computer software piracy, such as when multiple employees use a single-user licensed copy.
- Illegal streaming or downloading movies, TV shows, music, or eBooks rather than subscribing and paying for the downloading service. This is one of the most prevalent infringements today.
- Copying another’s writings or closely mimicking creative elements without permission or attribution. However, some copying may be considered a ‘fair use’ depending on the use, the amount taken, and if the use is for commercial purposes. Citations alone do not authorize reproduction or display.
- Developing new music, films, or art substantially similar to copyrighted works. One cannot copy plots, iconic graphics, chord progressions, or lyrics without risking claims of copyright infringement. Coincidental similarities withstand challenges better than blatant copying.
- Displaying or distributing unauthorized recordings of musical performances or theatrical productions. Bootleg concert albums and pirated videos diminish artists’ earnings.
Copyright law defines boundaries on using the original expression of others. But gray areas abound, especially regarding permissible borrowing versus unfair use. Seeking formal permission whenever feasible helps avoid accusations of infringement. And erring on the conservative side is wise when leveraging works still under copyright.
Fair Use Permits Some Copyright Borrowing
Fair use is an important exception allowing reasonable borrowing of copyrighted material for purposes like education, commentary, news reporting, parody and scholarly analysis.
Four factors determine if use qualifies as fair:
- Purpose and character of your use
- Nature of the copyrighted work
- Amount used
- Effect on the market value of the original work
Using a clip while reviewing a film or quoting a paragraph to critique an author’s idea, or including photos to report current events is a ‘Fair Use’ when the majority of the four factors above weigh in favor of a Fair Use. The more you leverage copyrighted works for nonprofit, educational reasons or build on facts rather than creative expression, the better. Always provide complete attribute even when invoking fair use. And only borrow as much as reasonably needed for your context.
While helpful, fair use remains hard to define precisely. It relies heavily on case-by-case analysis. Generally, you want your work to discuss, critique, or reference copyrighted material without replacing or harming the market for the original. This practice enables valuable public discussions.
New innovations like search engines and music sampling often depend deeply on fair use. Imagine how stagnant culture and innovation would become if all new works had to be wholly invented rather than judiciously borrowed. As long as current copyright holders get proper credit and payments for extensive commercial use, fair use cultivates creativity. Artists build on work before them, so reasonable access furthers progress while still protecting original creators from unfair use.
How Can I Register My Copyrights?
Common Law copyrights are created when an author fixes his/her work in a tangible medium. No other actions are required for a Common Law Copyright. However, registering your work with the US Copyright Office provides important benefits:
- Registration creates a public record documenting your copyright ownership as of your application date if later infringement claims arise.
- It enables the Copyright owner to file infringement lawsuits in Federal Court if the Federal registration predates any enforcement efforts.
- The Copyright owner is entitled to statutory damages and attorney fees in successful litigation. Unregistered works limit the Copyright owner to actual damages and profits that must be proven.
- Registration allows you to establish prima facie evidence in court fights. The copyright office certificate shifts the legal burden regarding originality and ownership questions onto the infringing party.
Applying for copyright registration requires naming the work, specifying the type of work from designated categories, providing your name and address, listing the date and location of first publication, and paying a modest fee. You will also submit one or more copies of your work as part of the materials documenting your rights.
The ease of electronic registration through copyright.gov makes applying easy even for blogs, videos, songs, artwork, photographs, and other digital creations. Just create an account and provide details on your work. Pay your fee via credit card or bank account, upload an electronic copy or photographs of your work, and receive an official registration certificate by email after processing. This certificate constitutes your proof of rights when enforcing your Statutory Copyright.
Copyright law seeks to advance public access to knowledge and culture while rewarding creators for their contributions. Understanding what types of works it protects, which rights apply, when protections expire, what constitutes infringement, and how to register copyrights allows you to better leverage your own works while carefully employing others’ expressions within legal bounds of fair use. With basic knowledge of copyrights, you can avoid infringement liability while also protecting hard-earned intellectual property like blogs, Youtube videos, memoirs, software apps and beyond as you advance innovation.
Contact Zale Patent Law, Inc. 570-878-5000 (text, voice) or IP@ZALELAW.COM for help with your copyright needs.