Copyright was created to protect what writers, artists, photographers and musicians create: intellectual property. Ultimately, it was meant to afford artists a decent income.
This post will not address the interesting questions: did it ever really work that way (most artists never seemed to have made much money from the copyright system) and has it just become a tool that multinationals in the music, publishing, imaging and movie industries use to control their markets.
Whether what was meant to be a shield is now employed as a sword will be left for another day. But your comments are always welcomed.
The purpose of this post is simply to allow you to hold your own at a cocktail party on the subject of copyrights. Now before we begin, let’s all fill our glasses.
What do copyrights do?
Copyright protects “original works of authorship“ that are fixed in “a tangible form of expression.“ Under the Berne Convention for the Protection of Literary and Artistic Works, which almost all major nations have signed, every creative work is copyrighted the moment it is fixed in tangible form.
Whooooo hooooo!
Do I need to register my creative work with a copyright office?
No registration is necessary, although it helps later if you eventually want to take legal action.
Which you probably will never do.
How about that © thing? What is all that about?
The use of a copyright notice has not been required under US law since 1989 (when the US joined the Berne Convention). Before that, US law required the notice to obtain copyright protection.
Use of notice is still important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year that it was first sold or distributed to the public. i.e. © 2008 TheWhole9.com.
How do I know if I have it “fixed in a tangible form”?
If you can show it off at a later date, it is probably fixed. If it is on a CD-ROM or DVD, then it is fixed. Images that appear on a computer screen may be fixed, to the extent they are recorded on an electronic medium. A live musical performance is not copyrighted unless it is recorded.
You being videotaped at an orgy is copyrighted – and probably available somewhere on the Internet.
Can I copyright anything?
Facts and ideas can’t be copyrighted – originality” does require some “creative spark,” even if the requirement is minimal.
An ordinary list, such as the names in your little black book, is generally not sufficiently creative to be protected under copyright law.
What rights are included in a copyright?
The right to make copies of your work; distribute copies of your work; perform your work publicly (like plays, film, dances or music); display your work publicly (like artwork, or stills from audiovisual works, or any material used on the Internet or television); and make “derivative works” (making modifications, adaptations or other new uses of a work, or translating the work to another media).
These are your exclusive rights; no one else can do any of them without your permission.
How long does my copyright last?
A long, long, time; due, in part, to Sonny Bono. Some people seem to need the royalties even when they are dead.
Thanks to Salvatore Phillip “Sonny” Bono, your copyright will now last 70 years after you die. So if you create your “masterpiece” this year, at the age of 30, and you die when you are 90; your copyright will not expire for 130 years. (Did you follow the math? You die in 2068 + 70 years = 2138 – 2008 = 130.)
What happens to my copyright after that?
When your copyright expires, the work falls into what’s called the “public domain.” When a work is in the public domain anyone can copy it and use it without permission.
This is why artists like Van Gogh and writers like Dickens and composers like Vivaldi (and in 130 years, you) can be copied at will.
What if I created something for my job?
If the work you created is in the scope of your employment, then the employer owns the copyright, absent any agreement to the contrary. This is also true if you are an independent contractor. These works are called “works for hire.” An artist can, of course, assign some or all rights under the copyright to someone else, as authors often do in exchange for royalties when they sign contracts with publishers.
So if your boss asks you to write a screenplay as part of your job, the company you work for gets all the copyright protection that would otherwise have been available to you. Fear not, you can still stand on stage and accept the Oscar.
I created a work of “art” with my lover but, alas, we are no longer lovers. Who owns the copyright?
When two or more people create a work together, each of them is an author: they are called “joint authors” and the work is called a “joint work.” Joint authors are co-owners of the copyright in the work, unless they agree otherwise.
So at the time you and your lover covered each other with paint and frolicked on the canvas, each of you became a joint author and a copyright owner. In this case, the perfect remedy is available: you cut the “painting” in half and you can both take a half. The value will not be affected. The videotapes will be trickier.
I like to be all legal-like: how to I register my work?
We don’t have time for that here, but those friendly, knowledgeable people at the copyright office can help you there.
Well, what legal rights do I get if I register with the copyright office?
If you register your work with the copyright office, it establishes a public record of the copyright. Moreover, if you register your work within 3 months after selling or distributing your work to the public or prior to an infringement of the work, you will be eligible for Statutory Damages - available if you sue and win. Good luck!
What is “fair use”?
“Fair use” (“fair dealing” in Canada and some other nations) is not an exemption to copyright law. The concept of “fair use” is a defense, which presumes that an infringement has already occurred.
“Fair use” generally encompasses areas such as criticism, comment, news reporting, or teaching. However, a use that falls into any of those categories doesn’t automatically qualify as “fair use.”
You must also look at how much you use, and which parts you use. Normally, the less you use (such as a quote from a movie in a review of that movie), the more likely the use falls under the category of fair use. However, what was used counts as much as how much was used. If you use the core of the work, even a small amount of copying may violate fair use.
Finally, consider the effect of the use on the author’s “potential market.” If you copied a work so that you didn’t have to buy additional copies of the original, or if you did so to avoid having to pay a license fee to the author, it’s unlikely to qualify as fair use.
“Fair use” is there to let a film critic include a clip from a film in her review to illustrate a point. Since negative critics would never get permission to do this, the fair use exemption exists to stop copyright law from being used to stifle criticism.
This means that if you are doing things like commenting on a copyrighted work, making fun of it, teaching about it or researching it, you can make some limited use of the work without permission. However, “fair use” is not a wholesale license to copy just because you don’t charge or you are in education.
The best course of action is simply to seek permission for all copied material you intend to use.
But aren’t things different on the Internet?
No! Just because works are available on the Internet does not mean they are in the “public domain.” Works published on the Internet enjoy the same copyright protection as other works, and copying a copyrighted work from the Internet without permission of the author still constitutes infringement.
I find this subject so stimulating; where can I get more info?
Please feel free to peruse the following in your spare time: the US Copyright Office; the Australian Copyright Act; the Canadian Intellectual Property Office; and, the UK Intellection Property Office.
************************
So, there you have it: enough information to bluff your way through a cocktail party. But, keep this warning from Alexander Pope in mind:
A little learning is a dangerous thing; drink deep, or taste not the Pierian Spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.
Please Stay Sober!
Me, myself, personally; I need a drink.
