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What is Copyright?

Copyright is a form of protection by the government that grants the creator of an artistic work a number of exclusive rights to exploit their own work.  Copyright law is codified in Title 17 of the United States Code. Historically, copyright was used to give incentive to individuals to create works of art.

What Does Copyright Protect?

Copyright protection has three requirements: The work must be original, the work must be creative, and the work must be fixed in a tangible medium.  This means that basic facts, such as a list of ingredients for a recipe, or the numbers used in a math equation, cannot be protected. Likewise, the idea of a story that is not written down, or a whistled tune that is not recorded, cannot be protected.

The “original” requirement means that the work must have been created by the author or authors.  They cannot have taken the work of another writer and passed it off as their own. In addition, they cannot have taken an existing story, made a few minor changes, and then call it their own work.

The “creative” requirement is very easy to meet.  The work must possess a minimum amount of creativity.  The aforementioned list of recipe ingredients or equations do not rise to the required level.  These are facts, and facts cannot receive protection. Additionally, names, titles, and short phrases cannot be protected.  For example, the fact 1+1=2 will never be protected, however a child’s crayon drawing of a house can meet the required level of creativity and could be protected.

The term “Fixed in a tangible medium” refers to the method that they author uses to record the work.  A “tangible medium” is anything that could be used to record something for a length of time, such as writing with a pencil on a sheet of paper, typing words into a computer that saves them, painting with oils on a canvas, or even non-traditional methods such as making an impression in wet cement.  All of these methods will qualify for protection as long as the work is “fixed.” This means that the work will not disappear on its own within a relatively short amount of time. A snowman will likely not qualify for protection, because it will melt the next day. A sandcastle constructed on a beach will not qualify, as it will soon be swept away by the waves.

How Long Does Copyright Protection Last?

The term of copyright protection depends on the author and the date that work was created.  If a work was created after January 1st, 1978 by an individual, then copyright protection will last for the life of the author, plus 70 years.  If the work was created as a work for hire, or as an anonymous or pseudonymous work, then copyright protection will last for 95 years since publication, or 120 years since creation, whichever is shorter.

For works created before January 1st, 1978, the rules become much more complicated.  If the work was not published then protection is usually the same as if it were created after 1978.  However, if the work was published before January 1st, 1978, then it would have an initial term of protection of 28 years and an option to renew for another 67 years with appropriate notice.  If the author failed to renew, filled out the required forms improperly, or did not provide notice then the author would lose copyright protection and the work would automatically fall into the public domain.

Generally speaking, copyright protections become more complicated the older the work is, or if it was created by an author from a different country. an attorney should be contacted if any questions arise.

How Does Copyright Protect My Work?

The author of a work is guaranteed certain rights by copyright protection.  They are:

  1. The right to reproduce the work

  2. The right to prepare derivative works based on the original work

  3. The right to distribute copies of the work to the public by sale, rental, lease, or lending.

  4. The right to perform the work publicly

  5. The right to display the work publicly

The owner of a copyright can transfer the copyright itself to another person, or have another person exercise the rights on their behalf.

If several people created a work together, then they each own an equal percentage of the copyright.  This share of ownership can be modified by a contract between the owners, and a contract is almost always recommended.  However, if several people contribute to a collection of works, such as a compilation of short stories, or a single song for an album, then they will have an interest only in the specific works that they contributed to the compilation.

Why Should I Register My Copyright?

Although copyright protection exists automatically once a work is created, the rights cannot be enforced unless the work is registered with the US Copyright Office.  This means that if someone copies your artwork and begins selling it online, you cannot sue them until your work is registered.  If someone uses your work without permission, this is called Copyright Infringement.

The date of registration makes a huge difference.  If the work is registered before any infringement occurs, then a presumption exists as to the validity of the author’s claim to the work.  If any infringement occurs after the registration, then the author may sue for statutory damages, attorney’s fees, and court costs. An author may obtain these same benefits by registering within three months of any infringement.  If a work is registered after that window of opportunity, then the author may only sue for “actual damages.” These are any missed sales that the author may have received instead of the infringer, and are often difficult to prove.

What is a Poor Man’s Copyright?

There is no such thing as a poor man’s copyright!  However, many people believe that mailing themselves a copy of their work is enough to provide some form of protection.  This is not true. Likewise, registering the work with a different organization, such as a guild or club website, will not provide any protections for the work.  The best protection for an author’s work is to register with the copyright office.

Do I have to Provide a Copyright Notice On My Work?

Many people believe that a copyright notice, or the © symbol is required to obtain the benefits of copyright.  This used to be the case. Although the symbol is not required at this time, it still provides some benefit if it is placed on your work.

Copyright notice was required for any works that were published before March 1st, 1989, with only a few exceptions.  However, while it is optional for more recent works to include the notice, it is still a good idea.

An effective copyright notice consists of three elements:

  1. The copyright symbol: ©, or the word “Copyright,” or the abbreviation “Copr.”

  2. The year the work was first published.  If the work is unpublished, then the year of creation.

  3. The name of the copyright owner.  This name may be abbreviated as long as it is easy to identify the owner.

There are several benefits to providing a copyright notice on a work:

  1. Someone who reads or uses the work has official notice that the copyright is registered.

  2. Official notice can make it easier to obtain a larger award in the case of a lawsuit for infringement.

  3. It will identify the copyright holder to users who may wish to do business with the holder.

The Bottom Line

If you are going to remember any one thing from this blog, it is this: REGISTER YOUR WORK!  Registering the copyright in your work will protect you from infringement, or greatly increase the potential award in an infringement case.

Thinking of copyright infringement can be scary, and it is understandable that many authors do not want to deal with this aspect of copyright, but it is important to know this information in order to protect your work.

If you have any further questions about copyright, feel free to contact the team at Start Art Legal.  Jake and Matt can be reached at jake.janzen@startartlegal.com or matthew.dedon@startartlegal.com, respectively.  We will always respond to your questions.

Disclaimer

The information provided in this article is presented for informational purposes only.  This article contains general legal advice, and reading this article does not create an attorney-client relationship between the viewer and Start Art Legal.  This article may be considered advertising under applicable law and ethical rules.


Matthew Dedon