Legal commentators long considered copyright a rather esoteric area of the law before the web became popular. My, how things have changed. Copyright is now the single most commonly litigated legal issue in the online world as content creators attempt to protect their creations. In this article, we have a go at copyright FAQ.
What is Copyright?
Let’s start with the basics. Copyright is a form of property ownership. It provides the creator of a “work” with the right to:
- Make copies of the work,
- Distribute copies of the work,
- Create adaptations or derivative works of the original piece, and
- Display or perform the work such as when a play is performed based on a written document.
Let’s look at an example. Microsoft writes a program that eventually becomes Windows 10. The code of the program is a copyrighted work. Microsoft has the right to make copies of it and distribute those copies for a fee.
You may have noticed something missing from the above description. Many commentators suggest copyright signifies the creator of the work owns the piece. This view is incorrect. Copyright only extends to the “right” to “copy” the work. Ownership of the work is a separate matter.
What Is A Work?
No copyright FAQ would be complete without addressing the nature of a “work.” A “work” is an original piece of authorship fixed in a tangible form and incorporating at least a small aspect of creativity. In English, this definition translates to a fixed piece of creativity. Examples include the written words of this article, the HTML code underlying this page and the photo you see at the top of the page which I licensed from the copyright holder through Fotolia.com.
The typical list of “works” provided in legal treatises includes:
- Literary works,
- Musical works including lyrics,
- Plays including music,
- Pictures, graphics, and sculptures of an original or derivative nature,
- Movies, television shows and audio works such as spoken books,
- Sound recordings, and
- Architectural designs.
Courts interpret these categories broadly. For example, the Copyright Office considers the computer code of a program a literary work.
Do I Need A © Notice On My Copyrighted Work?
No. View anyone telling you as much skeptically. The “C” requirement was eliminated more than 30 years ago.
Do I Need To Register My Copyright?
The registration requirement was revoked in 1978. Copyright now applies automatically to the publication of the work in question – a concept known as common law copyright. It is a weak form of copyright. By registering with the Copyright Office, the author of the work in question is put in a much stronger position to fend off anyone trying to rip-off the work. Do it.
Do I Have To First Register Before I Can Sue?
Yes. This is one of the most contested answers in our copyright FAQ. Look, you have to register first. You just do. The Supreme Court even affirmed this position recently.
Can I Copyright My Idea?
No. Copyright does not apply to ideas or facts. It only protects a tangible work and the right to copy and distribute it. An example can help clarify how this might play out.
Assume I write a book on how to get ranked in the top position of Google for a particular keyword phrase. Copyright protects the words I put to paper. However, my ideas regarding how to achieve high rankings would not be copyrighted. If those ideas were unique enough, however, I might be able to patent them as a business method patent.
How Long Does Copyright Last?
Copyright protects a work for the life of the author plus an additional 70 years. If Stephen King publishes a new novel on August 29, 2013, and drops dead the same day, his estate will still control the book until August 29, 2083.
What about business works? Do employees own the copyright to the works they create while at work as employees? No. Copyright vests in the company as part of the employer-employee relationship. The same is not true for independent contractors. Regardless, these company copyrights last 95 years from the date of publication or 125 years from the time of the creation of the work – whichever expires first.
How Does Public Domain Figure Into Copyright Law?
Public domain is a poorly worded legal concept that leads to a host of problems online. People seem to believe “public domain” means anything they can find in the public realm such as on a website or in a magazine. This interpretation is utterly incorrect and following such a notion is a good way to get sued into bankruptcy for copyright infringement.
Public domain does not refer to the location of a work. It refers to the status of the copyrights of that work. Specifically, a work is considered to be in the public domain if the copyright attached to it has failed for some reason. The most common reason is the copyright has expired.
A. Public Domain Example
Let’s consider an example. All copyrights on books written before 1923 have expired due to the technical aspects of past copyright law. In light of this, anyone can copy, publish and distribute a book written in 1922 without paying a royalty to the author or their estate.
Now consider a book written by JK Rowling in 2001. A story about a boy wizard or some such fantasy. I’m sure it will never go anywhere. Regardless, the fact Mrs. Rowling is alive means copyright applies to the book. The fact someone posts a rip-off of the book on a blog does not suddenly put it in the public domain and render it free of copyright.
Copyrighted works typically can be claimed to be in the public domain only if they are very old or the author has waived copyright. If neither of these factors is present, one must be careful when relying on the public domain defense.
Isn’t It True Government Publications Copyright Free?
This question is another area where people lose their minds in our copyright FAQ. Why? The commonly understood answer isn’t entirely correct. Federal government publications carry no copyright protection. Hold on. Don’t copy the CIA website. There is a catch. This lack of copyright only exists on works created by employees of the agency in question. Most federal government websites are not created by internal departments. The work is outsourced to professional web designers, freelancers, and programmers. The work produced by such individuals IS copyright protected. To ascertain what you can and cannot use, always contact the agency first for permission.
What About Fair Use?
The purpose of copyright is to promote the advancement of the arts, sciences, and creativity in general. This is why the right to protect one’s creations is given so freely in the United States compared to other countries. Going too far with copyright protection, however, actually stifles creativity. To prevent this, the courts have come up with the concept of fair use, which most commentators and people make a mess of online.
Fair use simply means that a person may copy from a copyrighted work without the permission of the creator of that work for the purpose of:
- Criticism [writing a review of a movie or parodying a book plot.]
- News reporting [showing an excerpt from a new book from JK Rowling.]
- Teaching [class, this is Hemingway.]
- Research [writing a paper on a subject.]
A. Fair Use Abused
Unfortunately, most claims of fair use online are laughably absurd while at the same time there are clear cases where the claim can be made and is not. Let’s look at a few examples to try to nail down this concept.
Can I copy the latest hit song from Justin Timberlake and use it as background on my blog without permission? No. There is no fair use aspect to my use in any way, shape or form.
Now, what if I do a YouTube video where I play the music and do a parody of the lyrics? In this case, I’m probably going to be able to claim the defense of criticism under the fair use concept.
Let’s look at a movie. I pull out a phone in the movie theater and record 2 minutes of the latest blockbuster. I then post it as a video on YouTube as a “sneak preview”. Can I claim fair use as a defense? No. What if I post the video and narrate a review of the movie over it? This would arguably be a classic form of criticism, which constitutes a fair use defense.
There is one other important thing to remember about the fair use defense. It is a DEFENSE to a claim of copyright infringement. This means in most cases you will only know if your fair use claim is valid once you reach the end of a lawsuit and a jury rules on the matter. While you might “win” the case, you will still be out potentially hundreds of thousands of dollars in attorneys’ fees.
Can A Copyright Be Sold?
Yes. This is typically what happens when a publisher puts out a book from an author. The publisher buys the copyright in exchange for paying the author a royalty. All copyright transfers, however, must be in writing to be effective. If you pay a website designer, programmer or freelancer to create something for you, make sure your agreement contains a copyright transfer clause.
What Is The DMCA?
The Digital Millennium Copyright Act is a federal law addressing online copyright issues. The most common use of the DMCA is through a framework that allows parties and websites to skip the courtroom when settling copyright infringement matters. Websites must designate a DMCA agent [Try DMCAAgentService.com] for this purpose. You can read more here.
While all of the above is true, the concept of copyright is often misused by copyright holders online. When it comes to a potential copyright dispute, you should stop and take inventory before acting. Why? What most people perceive as a threat against their hard work is actually usually an opportunity.
Let’s assume I write a book about internet law and the steps a website operator needs to pursue to protect themselves online. [Stop yawning.]. A major blogger with an email list of 150,000 people publishes an entire chapter of my book on his site without asking for permission. Technically, he is infringing on my copyright. I can demand he remove the content, demand his host remove the site, have the site thrown out of Google and so on. He, in turn, can claim a fair use criticism defense. Ultimately, we end up in a pissing match that helps nobody.
Is starting this fight a smart move on my part? Not really.
Think about it for a minute. This blogger is touting my work to his 150,000 followers. This isn’t a bad thing. It is a good thing. Instead of writing him a nasty cease and desist letter, I should contact him to offer to do an interview exclusively for his followers. If he agrees, my book is getting the kind of exposure I would normally kill for. What’s bad about that? Nothing!
Can you use copyright as a hammer to protect your rights? Absolutely, although in particular ways as this copyright FAQ article shows. Does this mean you should go ahead and do so every time you find someone potentially infringing on your work? Not at all. Take a deep breath and evaluate the situation before making a decision.
Richard A. Chapo, Esq.
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