What is Copyright?
So, what is this copyright thing all about? Do I have to put that funny “c” in a circle on everything? How does this all work?
You will not find all the answers here, but we can get you started. The more you know about copyright the better off you will be in understanding how to manage and nurture the creations which form your products and services. It also means you are better informed when you need help—from a qualified copyright lawyer.
What is copyright?
Let’s hear what the experts say.
Copyright definition
A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright. (United States Copyright Office)
That is a lot to swallow all at once. Let’s look at this more closely.
It All Started in 1787 or so
Copyright starts with the adoption of the US constitution.
Article I Section 8. Clause 8 –[The Congress shall have power] “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.”
So copyright is really a right granted to “authors”, founded in the constitution and protected on a federal level. Congress has enacted several different copyright acts over time, the most recent version is called the Copyright Act of 1976 (which has since been amended a bunch of times).
But that is enough history.
Works of Authorship
If you write a novel, a poem, a news article, a stage play, a screen play, a comic book; compose a song, film a motion picture, create a sculpture, paint a picture, take a photograph, design a website, write a software program or any other “original works of authorship” you fall into the lap of copyright.
Here is the official description from the copyright act.
- Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Pretty simple. Think of three basic ingredients
Original, fixed in tangible form, creative.
Original
The work needs to be original. That is, you need to have created it. It cannot be a copy. On the other hand, it does not have to be unique. You and I can create the same thing independently as long we do not copy each other.
Fixed in tangible form
Having all those creative thoughts wandering around inside your head is not enough. To protect them, you need to reduce them to some kind of tangible form/expression so that someone else can enjoy them.
Creative
This is really another side of originality. For something to be original, it “possesses at least some minimal degree of creativity”. Most of the works we are talking about are quite creative.
Facts are not creative, so they are not protected by copyright.
“’No one may claim originality as to facts.’ [citations omitted]. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” Feist Publications Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 -Supreme Court 1991
But compilations can be creative
On the other hand, if you apply some creativity in the selection, coordination or arrangement of those facts or other pre-existing materials, they you will have a compilation which can be protected (just the compilation not the facts).
“A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”
But not an idea, procedure, process, system, method of operation, concept, principle, or discovery
Ideas are easy. As long as things are floating around in your head and not written down, then they never made it to “tangible medium of expression”. (We will talk about ideas elsewhere, since “ideas — become, after voluntary communication to others, free as the air to common use.”)
When you think of the rest of these items, they are really “useful arts”. They really belong under patent (so they are excluded from copyright). Moreover, they are much like facts. It would not make sense to allow someone to have a copyright on a process, system and so on, since it would prevent others from following those same processes or discoveries.
In other words, you may be able to copyright a cook book (with all the fancy photographs and descriptions—which can be protected), but anyone can copy the list of ingredients. And, of course, anyone can bake the cakes.
What about the “c” in the circle ©?
But, what about the “c” in the circle we all see? Don’t we have to add this to make it all “legal”?
No. That was the old way (before the 1976 Copyright Act and the Berne Convention Implementation Act of 1988 (BCIA)). Today, as we have seen, your copyright attaches as soon as your work of authorship is “fixed in any tangible medium of expression.”
“Copyright notice is optional for unpublished works, foreign works, or works published on or after March 1, 1989. When notice is optional, copyright owners can use any form of notice they wish. However, works first published after March 1, 1989, may need to comply with statutory formalities to prevent a defendant from invoking an innocent infringement defense in a copyright infringement action.”
See the Copyright Office Circular 3 https://www.copyright.gov/circs/circ03.pdf
So, what does the © do?
If you place a nice little copyright notice on your work it does two things. First, it makes it clear that you do consider your work to be valuable and you plan to protect it.
Second, if you end up having to sue someone for copyright infringement, by placing the notice on your work, it makes it more difficult for the person you are suing to say that they were an innocent infringer (they did not know, they thought they could copy anything on the Internet). Under the copyright law, if the person is not an innocent infringer, then the court may award much higher damages against them.
What should it look like?
© 1813 Jane Austen
[that is, © or Copyright or Copr.; then year of first publication, then the author’s name]
See Copyright Act § 401. Notice of copyright: Visually perceptible copies. (1813 is the date when Jane Austen’s Pride and Prejudice was first published. You knew that.)
You can also add “All Rights Reserved” if it makes you feel better (and you feel it helps ward off people who might think it is okay to copy). All Rights Reserved used to be important but is now obsolete.
What Rights Do I Have?
Once you have a work of authorship (sounds really dry), what rights do you have with your latest creation?
You actually have a fair number and they are “exclusive” (in other words, they belong to you alone).
You (and you alone) can copy your work; you can prepare “derivative works” (like making a book into a movie or stage play or translating it into a different language); “distribute” (think license, sell or give away) your works; perform your works or display them. And in each case, you can prevent others from doing any of those things with your works. These rights really are exclusive.
That is plenty to work with. You can prevent others from copying or selling your book, your photographs, your motion picture, your website, your songs and so on.
Here is what the copyright act says.
- Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Who owns those rights?
The rights belong to the person who created the work. Aren’t we repeating ourselves here?
Yes, for a good reason. This means that if you hire your local freelancer to take photographs for you, or design a website, or write music or write a software program they own the copyright and all those exclusive rights, not you.
While it might be nice for each person to own the copyrights, you may be on your way to creating the next fabulous mobile application (or musical production, motion picture or for that matter novel of the century). Things get a little crazy with all these different people owning pieces of the works of authorship (intellectual property) that goes into your final products and services. It will give them all veto power over everything you do (and half of them may have moved to a small cabin off the grid in Montana). Remember the rights under copyright are exclusive.
Su-prise, su-prise, su-prise. https://www.youtube.com/watch?v=2TnkJ8_BmSI (Thank you Gomer.)
This is very important to recognize, since it can be your undoing as time goes by if you are suddenly offered a bundle of money for your new company based on your great software (or music or whatever). However, there are things you can do about it. We will get to that in a later section.
Exception. There is an exception to this rule, called “work made for hire”. That will save you if the ones who wrote your software or took your photos or wrote your music were employees; but will not save you if they are not. More on this later under “work made for hire”.
Work Made for Hire
One of the most misunderstood concepts under copyright (this only applies to copyright) is the “work made for hire”. Why is that? Simple, people think that if they hire someone to create a work that you own their work product (sounds like a “work made for hire” to me). But we have already seen that it is the original author that owns the copyright, unless something else changes that.
That brings us to “work made for hire”, which does change who owns the copyright.
- 201. Ownership of copyright
(b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
So, under the work made for hire rules, ownership of the copyright does not rest with the creator, but with the employer or other person engaging the services.
How does this work?
Some parts are easy and some are much more complicated.
First, we might as well look at what the Copyright Act says.
- 101. Definitions
A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
This is the easy part. If the people who are creating works for you are your employees, then this all happens automatically. However, we are going to recommend that you take some extra precautions just in case.
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
This is the hard part. When people talk about engaging others to create works of authorship, they think that if they just have an agreement with them that says “work made for hire” that it will work.
But, there are two challenges here. First, some courts say you have to sign the agreement in advance of the work. Some do not. That means that if you forget to get an agreement right away, then the “work made for hire” does not work and the person commissioning the work will not be the owner. Not only that, if you forget to say that this is a “work made for hire” you will also be out of luck.
Second, only the types of works listed above fall under the work made for hire rules. So if you are filming a motion picture (“audiovisual”—not just audio and not just visual) then it applies. But if you commission someone to write music, or write a computer program, or take a photograph, then you are out of luck.
Unfortunately, most people miss this part, and get caught.
There is a way to fix this problem, which we will discuss under “Making Sure We Own What We Think We Own”.
Making Sure that We Own What We Think We Own (or “Assignment”)
If you only learn one thing about copyright, make sure you learn this. The only sure way to be positive that you own and control all your intellectual property covered by copyright is to obtain an assignment of all rights that an employee, contractor or other third party might have in the “works”. There are lots of other items which show up in an ownership of inventions agreement (sometimes incorporated into a Proprietary Information and Inventions Agreement (PIIA)), but the one part which is essential is the assignment.
I hereby irrevocably assign and transfer to [COMPANY NAME] all right, title and interest in any and all such works, including but not limited to copyrights and patents.
Some examples
Assignment of Developments. I agree that all inventions that are (a) are developed using equipment, supplies, facilities or trade secrets of the Company; or (b) result from work performed by me for the company; or (c) relate to the Company’s current or anticipated research and development will be the Company’s sole and exclusive property and are hereby assigned by me to the Company. (Nolo press) https://www.nolo.com/legal-encyclopedia/pre-invention-assignment-agreements.html
I agree that any inventions, ideas or original works of authorship in whole or in part conceived or made by me during or after the term of my employment or relationship with [COMPANY NAME] which are made through the use of any Confidential Information or any of [COMPANY NAME]’s equipment, facilities, supplies, trade secrets or time, or which relate to the [COMPANY NAME]’s business or [COMPANY NAME]’s actual or demonstrably anticipated research and development, or which result from any work performed by me for [COMPANY NAME], shall belong exclusively to [COMPANY NAME] and shall be deemed part of the Confidential Information for purposes of this Agreement whether or not fixed in a tangible medium of expression. Without limiting the foregoing, I hereby irrevocably assign and transfer to [COMPANY NAME] all right, title and interest in any and all such works, including but not limited to copyrights and patents.
I will cooperate with [COMPANY NAME] in establishing and perfecting [COMPANY NAME]’s rights to any such Works (which may include, for example, the execution of all necessary documents and providing of proper assistance to [COMPANY NAME] to obtain, maintain, or enforce for itself or its nominees, patents, copyrights, trademarks or other legal protection for such Works)
First sale
We have just learned that you as the copyright holder have a fair number of exclusive rights. One of those rights is the right
“(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”
There is an exception to that right, which is called the first sale doctrine. This exception says that once a particular copy of a work has been sold, transferred, or even given as a gift, that the copyright holder cannot restrict the transfer of that work to someone else
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
In other words, if you sell a book, then the person that buys the book can then sell it, loan it out, give it away or anything else. Your right is “exhausted” once the first sale has occurred partly on the theory that you have already received the fruits of your copyrighted works and should not be able to further profit from the work or prevent others from transferring the work.
However, the person who obtained the book only has rights to the book, not the words in the book. So, that person cannot copy the contents of the book and distribute copies.
As you can tell, this doctrine really applies to physical objects that can be and are sold. It does not work well with digital copies (which is why copyright holders “license” digital works, and do not sell them).
Registration.
You do not need to register your work with the US Copyright Office to have a copyright. Copyright belongs to you immediately once you reduce to tangible form, but…
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law. US Copyright Office.
Registration is fairly straightforward. It is handled exclusively by the US Copyright Office. The Copyright Office has plenty of information about how to do it.
https://www.copyright.gov/help/faq/faq-register.html#register
https://www.copyright.gov/registration/
You can register by mail or on-line. Do not forget that with most works you will need to make a deposit of copies of your work to go to the Library of Congress. Yes, part of the way the Library of Congress maintains a national record of our nation’s creative activities since the beginning of the republic is by receiving copies of the works registered for copyright. When you register, you are part of that.
All works under copyright protection that are published in the United States are subject to the “mandatory deposit” provision of the copyright law. It requires that two copies of the “best edition” of a copyrightable work published in the United States be sent to the Copyright Office within three months of publication.
Registration does not happen overnight. By the way, even if you register on-line, the process is not instantaneous. It can take several months for you to receive your registration certificate. https://www.copyright.gov/registration/docs/processing-times-faqs.pdf
Registration is necessary to bring a lawsuit. If you want to sue someone for copyright infringement (that is, enforce your copyright), you must register your copyright. That is, you may not bring a lawsuit unless you have registered your work.
If you expect to register your copyright work, so do promptly. Why is that? While you can register your copyright at any time, by registering early, you gain some important advantages if you do need to bring a lawsuit to enforce your copyright. First, you may be entitled to statutory damages. Second, you may be entitled to the award of attorney’s fees.
What does promptly (or you could say “timely”) mean? For unpublished works, before any infringement, for published works, within three months of publication. In other words, right away.
US Copyright Act, Section 412…no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
What’s the lesson? Don’t dilly dally.
If you miss the early dates, that does not mean that you cannot sue for infringements, it just means you will not get the extra benefits.
Statutory damages.
What are statutory damages? Statutory damages are damages you can recover from an infringer instead of “actual” damages. This is based on the idea that sometimes it is very hard to tell how much damage you have suffered,
How does that work? Suppose you wrote this incredibly popular game. Someone else clones it and makes a ton of money selling it. The “ton of money” is something that should have come to you, and would be the basis for the “actual” damages you might be able to recover. But suppose you write a song and people downloaded it for free instead of paying you. In those cases, it is hardly worth suing someone for 99 cents. But, statutory damages might make it worthwhile, especially when you may not have any idea how many people may have downloaded your song.
(The original idea behind statutory damages, especially for copyright, has to do with this problem of trying to figure out how many people may have infringed or used the work. There is a fair amount of debate about this, but the remedy definitely exists in the Copyright Act.)
What does the Copyright Act provide for statutory damages for registered copyright holders.
“in a sum of not less than $750 or more than $30,000 as the court considers just”
And, if the court finds the infringement “willful” it can award up to $150,000 per work.
So, the lesson is, if you are going to register your work, make sure you do it promptly.
Is there more?
There is always more. But you have earned a break. Go down to the mess tent and get yourself a lemonade.