Rachel Rodgers Law Office Intellectual Property Strategy & Legal Counsel for Digital Entrepreneurs

You Don’t Have to be a Lawyer to Understand Copyright, You Entrepreneur, You.

If you’ve been operating in the business of art, or in the business of business, (or in the business of life, really) for any amount of time, you’ve likely heard chatter about copyright being tossed about, especially on the interwebs. You’ve also likely got some idea what copyright means generally, but if you’d like to get more of the vital deets, in a (somewhat) compact format, we’re serving that up for you in this article. Give this a read, and afterwards you should have a general idea as to how to protect your work, how not to infringe the work of others, and/or how to make people fall asleep at cocktail parties by talking to them about copyright law. Cheers!

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What is copyright?

Broadly speaking, copyright is a form of legal protection covering “original works of authorship fixed in any tangible medium of expression.” In literal terms, copyright is the right to copy, publish, distribute, perform, display the protected work, or create derivative works based on the protected work.

From whence hath it come?

We’re so glad you asked. History is fascinating, isn’t it? In the U.S., copyright protection has been bestowed upon us by our art-loving, creativity-promoting federal government. Copyright law is found in Title 17 of the United States Code, which is based on the general framework provided by the 1976 Copyright Act, and its subsequent amendments. If you wanna go way, way back, we can also tell you that Congress derives its power to act with respect to copyright from Article I, Section 8 of the United States Constitution. Still yearning for more? Read this publication from the U.S. Copyright Office.

Copyright sounds delicious! Where can I get myself one of those?

So you want a copyright of your own? All you have to do is create something!

Here’s the deal: the moment an original work is manifested into some tangible form—video, recording, photograph, manuscript, painting—it is protected by copyright, and that copyright belongs to the author—most of the time. So, often times the copyright holder is also the author of the work. However, because copyright holders also have the right to transfer ownership, not all owners are authors. There are a couple of other scenarios in which the creator and the owner of the copyright won’t necessarily be the same person. We won’t go into too much detail here, but basically if you create a work for someone else (this is known as a “work for hire” in copyright law) then the individual or entity that commissioned you to do that work owns the copyright. Also, if you create a work that is part of a collective work, in which multiple authors each contribute a piece, you will only own copyright in your particular piece of that collective work. Which, kind of makes sense. Otherwise, you’d be kind of greedy.

In sum: she who owns the copyright, may or may not be the author, and has the sometimes exclusive, though not unlimited, right to copy, publish, distribute, perform, display or create derivative works based on the protected work, as well as the right to transfer ownership of the right.

And! Although copyright vests as soon as you bring your wonderful original works into tangible form, there are many compelling reasons to go through the steps of actually registering your copyright(s).

More details on the limitations on the rights of copyright holders in this article.

Why do you keep referring to “original work of authorship” when you know nobody knows what that means?

Sorry. It’s lawyer-habit. It basically means, “the stuff you create.”

Let’s break this into two parts: there’s the ‘original’ bit, and then there’s the ‘work’ bit. We’ll start with the ‘work’ bit. A work in this context is basically an idea in tangible form. The work is not the thoughts or feelings you have that make you want to write a song, but it’s the song itself once written down or recorded. Thoughts, ideas and methods aren’t covered—the resulting work is what’s covered. Write a love poem on a napkin in a seedy bar? It’s covered by copyright and you own it. Write a blog post about how to make banana sculptures? That puppy is covered by copyright and it is all yours. Actually make a banana sculpture? Ditto. Take a photo of your thumbs? That’s all you, kid. The law says so. It’s quite logical when you think about it.

People have ideas all day long, but the law can’t protect them until they are manifested in some tangible form, because otherwise there’s no proof. (Tweet this)

Now for the ‘original’ bit, which is a two-parter. Copyright jurisprudence has developed in a way that works must have some element of originality in order to be protected by copyright. This basically breaks down to two requirements: 1) the work is independently created by the author and 2) it has some minimal degree of creativity. This isn’t a difficult standard to meet and there’s a pretty good public policy argument behind it. The intention of intellectual property laws is not necessarily just to protect creators, but also to promote the arts and sciences—or, promote progress in general. For this reason, in order to avoid a sort of “copyright monopoly,” a work that isn’t sufficiently original (read: creative) won’t be protected.

367The originality requirement is related to what is called the “useful article” doctrine in copyright law, which prevents copyright protection for articles whose artistic merit is inseparable from its utilitarian function. (This is tricky business for you industrial designers). The case we lawyers like to sit around and feverishly discuss over lukewarm glasses of single malt whiskey had to do with a bicycle rack for which copyright protection was sought. Long story short: the bicycle rack, although lovely and artistic was not protectable because it’s artistic merit could not be separated from its utilitarian function of holding bicycles.

How long will my copyright last?

It depends on a couple of things, including when and if the work was published, the status of the author, etc. Generally speaking, if the work was created after 1977 then the copyright lasts until the author dies, plus 70 years. The same goes (generally) for work that was created before 1978, but not published before 1978. Copyrights for works for hire last between 95 and 120 years depending on when they were published. And, here’s the real crazy part: all work published in the United States before 1923 is in the public domain. This means it is free to use! If you love free stuff as much as we do, then you are probably smiling right now.

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