Copyright 101: Know Your Rights
Copyrights… you’ve heard it before. You’ve probably even seen that mysterious © symbol countless times. But what is Copyright law and why should you care? Let us briefly take you through the basics.
Back in the day, our founding fathers possessed a profound respect for artistic creativity and recognized its importance to the general public good. As a result, the Constitution bestows certain rights upon authors of original works (we use the term “author” here to mean anyone that creates an original piece of work, not just typewriter junkies). These rights are meant to promote and incentivize creative expression by granting the author a limited monopoly over the work so that the author can recoup the costs to produce the work and make a profit from his or her creation. Thus, obtaining a Copyright is meant to protect and promote creative expressions for the benefit of the general public… Now, we don’t want to get carried away – not everything can be protected under Copyright law.
What is Copyrightable?
In order to obtain copyright protection, something must first be copyrightable. This is a five-dollar word that simply means an artistic/creative work satisfies three requirements necessary for protection under U.S. Copyright law:
- Expression: Generally, copyright law doesn’t protect ideas, but it does protect the expression of an idea. For example, the idea of a song about a hotel in California with hidden sociopolitical themes is an idea and not Copyrightable. But “Hotel California” by The Eagles is an expression of that idea, and is certainly protected by Copyright law.
- Fixed Medium: Additionally, creative works must be “fixed” in some permanent state. For example, if you free-styled a song on your ukulele for your friends at a campfire, the song would not be considered copyrightable, unless it was recorded and/or the lyrics written down (and thus “fixed” in a recording or a music sheet).
- Originality: Finally, a work must be sufficiently original to its author to be considered copyrightable. The threshold for satisfying the originality requirement is a relatively low one. “Original,” in this context, does not mean that the work has never existed before; rather, it means that the work originated with a particular author. For example, if you take a photo of the San Diego skyline from a particular point, and 10 seconds later someone else stands exactly where you were standing and takes the same photo, both of you would have a copyright in your photos, but neither of you would be able to stop the other from using, sharing, or selling their photo.
Facts and short phrases do not fall within copyright protection. However, you may protect short phrases unique to your brand under trademark law, copyright’s intellectual property cousin.
If your creative work meets these requirements, congratulations! You automatically have copyright protection in your work under what is known as “common law” copyright protection. But what is so special about this? Read on, you intrepid creator you.
The Rights Granted by Copyright Law
A copyright owner actually enjoys a bundle of rights, and not merely a single, all-encompassing right. These rights depend on the work of authorship you seek to protect — such as a photo, sound, play, movie, writing, etc. For the most part, copyright owners possess the following exclusive rights in their artistic and literary works:
- Right to reproduce or copy the original work,
- Right to create derivative works (new adaptations or versions of the original work).
- Right to distribute the copyrighted work through selling, leasing, lending, etc.,
- Right to publicly perform the copyrighted work (only applies to literary, musical, dramatic, and film works),
- Right to display the work to the public,
- Right to digitally perform any copyrighted sound recordings (i.e. broadcast it via radio/other digital transmission),
As the sole owner of the above rights, you can choose to enforce them, or choose to license them for a fee or for free… it’s completely up to you!
Think of copyright protection on a spectrum. At one end, you obtain common law rights from the moment you fix your work in a tangible medium of expression. With common law rights, you can send copycats cease and desist letters and threaten litigation. However, if you ever need to bring an infringer to court, you will need to own a federally registered copyright in your work. That’s right: even if someone blatantly infringes your copyright, you cannot pursue him or her in court unless you have registered your work.
At the other end of the spectrum, you can obtain stronger copyright protection with a federally registered copyright. Registering your copyright with the U.S. Copyright office is optional and surprisingly affordable. Registration allows you:
- to file a copyright infringement suit in federal court,
- to obtain damages in such a suit if victorious, and
- to have the opposing copier pay your attorney’s fees!
In our modern digital lives—a basic understanding of copyright law is more important than ever before. Artists, creators, and designers depend on copyright protection to produce successful work. With the increasing exposure for creativity facilitated by the Internet and social media, your creative expressions are not only at risk, but you yourself may be infringing a copyright without even knowing it. Now that you’re familiar with copyright law in general, we recommend you also read up on Fair Use to better understand when you can and cannot use another person’s work without first seeking permission.
By Rayman Khan, 8/18/2016
Disclaimer: Although this article may be considered advertising under applicable law and ethical rules, the information in this article is presented for informational purposes only. Nothing herein should be taken as legal advice and this content does not form an attorney-client relationship. If you would like further information, Wilkinson Mazzeo would love to hear from you, so please feel free to reach out with any questions!