Copyright is the legal equivalent of that current event that comes up at a dinner party that you pretend to know a lot about.
Meaning, a lot of business owners know they should copyright their creative works, they’re just not always sure which ones or how to go about it. So don’t chew your pork roast extra slowly so you don’t have to engage in the conversation, take your proper seat at the table and get informed on how to protect those important pieces of work. Below is a nice little overview of a lot of the legal components surrounding copyright—all of which we can help you take action on.
What is a 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.
What does a copyright protect?
Copyright protects: “original works of authorship” that are fixed in a tangible medium of expression. Let’s break that into elements and explain them in plain, non-snoozeworthy language…
- Original works of authorship
There are two bits to this originality element. The first requires a showing that the work comes from the author claiming ownership—in other words that the work merely hasn’t been copied. The second aspect of originality requires that the work itself contains some level of creativity.
- Fixed in a tangible medium of expression
The work must be tangible. So, essentially, you must be able to hear, read or touch it and it must be pretty well fixed in that tangible medium—meaning that it won’t instantaneously disappear like dark magic. This includes obvious things like sculptures, poems and music (as in written music and sound recordings of that music).
It’s also helpful to know the categories of copyrightable work. Assuming the work satisfies the elements of copyright protection, it would be put into one of these categories by the U.S. Copyright Office:
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
Pop on over here to read more about all of that.
What does a copyright NOT protect?
Obviously, copyright protection doesn’t cover any work that doesn’t meet the above elements. However, here’s a list of things that copyright categorically doesn’t protect, even if it does arguably satisfy the above elements.
- Names of products/services, names of business/organizations (That’s what Trademarks are for, slick. More on how to trademark a name here.)
- Titles of works (like plays, books, movies, etc)
- Slogans, catch phrases, mottoes, etc.
- Recipes or formulas that are merely lists of ingredients. (These fail to meet the originality requirement.)
Also keep in mind that you can’t protect ideas with a copyright. If someone had an idea that was the same or similar to yours, that’s not copyright infringement, that’s just a coincidence.
How is a copyright different than a trademark?
Copyright protects what we think of as content—the original writing, images, audio and video that you create. Trademark, on the other hand, protects your brand identifiers—logos, business or product names, taglines, and even hashtags that identify your brand.
Can’t I just post a notice that I own something and that’s enough?
That depends on your definition of “enough.” It’s true that your common law copyrights vest (come into existence) the moment you put your work in a tangible medium. That is, as soon as you write them down, type them out, paint them, record them, etc. So, technically you could just use the copyright symbol on your published works, or post a notice that you own the material. This certainly puts would-be infringers on notice not to use your work. However, actually registering your copyright is important because if you don’t register your copyright you can’t bring a lawsuit against an alleged infringer for copyright infringement. Moreover, registered copyrights enable you to recover damages that are far greater than the damages you could recover in a dispute based on common law rights. You could also recover attorney’s fees and that’s not a small bonus.
Can’t I just email or mail myself a copy of the work to prove I own it?
This practice, often know as the “poor man’s copyright,” is endearing, but also kind of pointless. Because copyright vests at the time your work is fixed in a tangible medium, the whole mailing bit is sort of unnecessary. Also, the process of mailing (presumably so that the envelope reflects the date printed by the US Postal Service) is not a substitute for registration. Don’t believe us? Ask the US Copyright Office.
When should I file a copyright application?
Although you can technically file your application at any time, it’s wise to register your work as soon as possible after creation. This is because if you want a shot at recovering higher damages from potential infringers, the work must be registered within three months of publication, or before the infringement occurs. For unpublished works, it must be registered within one month of the time that you first became aware of the infringement.
How much are the filing fees for filing a copyright application?
Registration is fairly easy and inexpensive and you can register online by submitting some basic information and uploading samples of the work to the US Copyright Office website. All of that information can be saved in a template on the electronic Copyright system, making it a snap to register once you’ve set it up. The fee is pretty reasonable, either $35 or $55, depending on what you’re registering.
What are the main benefits of registration?
It’s true that anytime you create something, you instantly and automatically, have copyright protection of your original creative works. But while that’s well and good, its not good enough. You should register your copyright with the U.S. Copyright Office. Here are 3 reasons why the official step of registering your copyright is absolutely worth it:
- With a copyright registration, you create a government record that’s, ya know, official. You create a paper trail that specifies you as the creator and owner of the work. We’re (obviously) a fan of government records. Those savvy infringers know that infringing on federally registered copyrights can come with penalties of the five-figure variety and up (more on that below) so they take those notices and registrations more seriously. Plus, the official copyright registration can also come in especially handy when you are dealing with an unpublished work. You may have trouble proving ownership when you have a creative work that you’ve authored but haven’t yet displayed to the world.
- That copyright registration also means that you have the exclusive right to share and profit from your work. If you don’t hold the federally registered copyright, there’s not much of a deterrent to stop anyone else from using it, from selling it, and profiting from it. Simply relying on morals is not enough. Sometimes people lack them and then you’re stuck dealing with a massive headache. The only real preventive measure you can take to protect your creative works is a federal registration of your creative works. (This is why intellectual property and copyright are best friends.)
- The best part of registering your creative works in the case of downright thievery? You can actually collect statutory damages (the damages provided for in the U.S. Copyright Act) and attorney’s fees if you successfully sue someone for copyright infringement. The statutory damages can go up to $30,000 for each work infringed upon, and up to $150,000 if the court finds that the infringement was willful, (i.e., the infringer had notice that they were infringing on your work and chose to continue to do it anyway).
Who is considered the author of a work? And is that the same thing as the owner?
Here’s the deal: the moment an original work is manifested into some tangible form—video, recording, photograph, manuscript, painting—it’s protected by copyright, and that copyright belongs to the author…most of the time. So, oftentimes 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. For more on this…
Should I be the owner of my creative works or should my business?
If the work you’re registering is connected to your business, then you should register the work with you as the author and your business as the owner. This way, the work is an asset of your business. However, if you register any creative work that isn’t related to your business, you, as an individual, would be the author and owner.
Can I protect my entire blog in one application?
In most cases, yes. But it isn’t possible to register both unpublished and published works in one application. In most cases, your blog posts will be considered unpublished. (This is pretty counterintuitive, we know. See the next question for an explanation.)
The main differences between registering your blog content for copyright and registering another type of work lie in: the frequency of registration and the designation of the work as published or unpublished. You can register all of the original creative content that constitutes your blog and your blog posts. At the beginning of the registration process, you’ll need to declare whether your blog posts are published or unpublished. Rest assured, it is possible to register both published and unpublished material, and both types will receive protection. However, the Copyright Office requires you to distinguish between the two.
The only way that your blog material will be considered published is if you post it online and you give people on the internet (or even a particular group of people) your express permission to reproduce or distribute the material. For example, this piece you’re reading right now—the one we posted for our millions and millions of adoring fans and readers—it is NOT published. Know why? Because we did not give our express permission for all you deadbeats to reproduce or distribute it. (We’re just joking, you’re not a deadbeat. And even if you are, we like you anyway!). So, the truth is, for most of you, most of the time, your blog posts will be considered unpublished. That is unless you’re giving express permission for the reproduction or distribution of your material every time you post it.
How do I know if the work I post online is considered published or unpublished?
According to real live people at the U.S. Copyright Office (We talked to them! They speak Quenya—luckily, so do we.), a work is published on the internet if:
- it is made available online; and,
- the copyright owner authorizes the end user to retain copies or phonorecords of that work.
By way of example, the U.S. Copyright Office explained that express permission given by an author of a work to the general public to reproduce or download that work pretty much means that copies have been distributed, and therefore the thing is “published.”
But, what does this mean?
It means that merely displaying or performing a work online (on the Internet, before MILLIONS OF VIEWERS) does not satisfy the U.S. Copyright Office’s publication requirements. Again, work is only published if you authorize it’s reproduction or download (selling the work obviously counts, too). In more direct terms, this means that all of your blog posts, photos, etc. are likely in the unpublished category.
You should also keep in mind that this unpublished/published distinction is of little practical importance. The important part is that both unpublished and published works are protected. In fact, it is likely that the issue will arise for you only at the time that you are submitting your copyright application, because the application questions and deposit submission guidelines can be a bit different for published versus unpublished works.
How do I know if the work I don’t post online is considered published or unpublished?
The U.S. Copyright Act defines “publication” as: “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitute publication. A public performance or display of a work does not of itself constitute publication.” (17 USC sec. 101)
Allow us to summarize that for you in plain English: If your work has been offered for sale, then it is published. If your work has not been offered for sale, whether or not it’s published gets a little tricky and depends on whether or not it has been offered to a group of people for the sake of further distribution. For example, delivering your photographs to a client who does not actually print them may or may not constitute publication depending on the context in which they are delivered. Putting your photos on a website may or may not constitute publication (see above), and displaying them at an exhibition probably does not—although it could—constitute publication.
Can I register an entire course in one application?
As long as all elements of the course (e-books, videos, etc) are all either unpublished or published with the same publication date, they can be registered with one application. This is something we cover in the industry specific guide, Legal Nunchucks: For Coaches.
How many photos can I protect in one application?
You can register a single published photo or a group of related published photos on one application and pay only one filing fee.
But! Only if:
- all of the photographs are by the same photographer (if an employer for hire is named as author, only one photographer’s work can be included);
- all the photographs are published in the same calendar year; and
- all of the photographs have the same copyright claimant (hint: that’s you).
Registration for single published photos can be done electronically or on paper. Currently, when registering a group of published photos (as opposed to a single photo), the photos must be submitted as hard copies. If you go this route, you are limited to 750 photos per registration. For help on registering your photographs, check out our shiny new industry guide: Legal Nunchucks: For Photographers.
How long does an application take to complete?
Assuming you’re registering a fairly straightforward work and are comfortable with online forms, you can generally complete the application in about 30 minutes. The difficulty is often in determining questions like published vs unpublished; who owns the work; what can be included in one application.
How long before I receive my copyright registration certificate?
This varies drastically and depends on the U.S. Copyright Office. Generally, your certificate will arrive anywhere between 3-8 months after you file. If there are any issues with your application or if the U.S. Copyright Office is unusually busy, it can take much longer to process.
Should I start using the registration copyright symbol now or later?
These days, the use of the copyright symbol in the U.S. is entirely optional. However, there are pretty good incentives for using it. Ooh and you can use the © on unpublished works as well. The U.S. Copyright Office recommends this if the unpublished works will be out of your immediate control.
Do I need to hire an attorney to help me with copyright?
For most situations, you can absolutely complete a copyright application yourself. We have great resources in Small Business Bodyguard, Legal Nunchucks: For Photographers and Legal Nunchucks: For Coaches to help you do just this. Getting help from an attorney is primarily useful whenever you’re dealing with the complications. So if there’s any question of ownership or you’re struggling to determine if something is published or unpublished, an intellectual property attorney can help you with those questions. If you have a large volume of work to protect, you may also find the experience of an attorney helpful in determining what can be registered together versus what has to be separated.
Someone is using my content without permission, what do I do?
If you think the infringement is unintentional, or if the infringer is a small business, or someone you work with, you may want to call them up and play nice.
If you think someone is deliberately ripping you off, you have some options:
The Digital Millennium Copyright Act (DMCA), a Federal law in the United States, was created to address exactly these situations and to provide some form of redress to folks in your position. (It was also created to limit the liability of online service providers who host potentially copyright-infringing material on their sites via their users, but let’s just leave that somewhat political issue aside for now.)
The DMCA basically lays out a procedure for aggrieved copyright owners to follow in order to get the infringing material taken down from the infringers website. This process is known as a DMCA Takedown. When a web host receives a DMCA Takedown Notice, they are legally required to remove (“take down”) the infringing material. Sometimes this may mean than that an entire site is taken down. But before we get to the take down business, slow your roll for a second and make sure you’ve considered whether the use of your material is actually infringement.
You may also want to consider issuing a cease and desist letter. You can find examples of these online, but definitely don’t copy and paste it, make sure it is tailored to your situation and says what you need it to say. Keep in mind that getting infringement to stop will be a lot easier if you registered your copyright with the US Copyright Office.
I received a cease and desist notice alleging copyright infringement, now what?
First, take a close look and see if all of the facts in the Cease and Desist are correct. Does the person who sent the Cease and Desist own the content that you are using? Did they include a valid Copyright Registration Number? Are you using the content that they say you are using? Do you have valid rights to use the content? If you ask all of these questions and you think the Cease and Desist is valid, you will have to stop using the content altogether. On the other hand, if it seems like the Cease and Desist isn’t valid (often because you have the right to use the content you are using), then you can contact the other person and tell them why you think they are wrong and why you won’t stop using the content. Honestly, this is one of those things that is best handled by an attorney, because trying to figure out the validity of a Cease and Desist requires some detailed legal knowledge.
I got an invoice for the unauthorized use of an image, do I have to pay it?
So, you got an invoice in the mail from an online stock photo house and now you’re all “Crap. What do I do?” There’s no need to run (we hear that’s bad for you anyways). You shouldn’t hide either. This is a situation best handled straight on. The appropriate reaction, however, depends on whether you used the photo in question, and if you did, whether you had a license for it.
Let’s say you used the photo in question and let’s also say you didn’t purchase a license to use it. First, verify that the stock photo house actually owns the rights to the photo in question. While you’re doing that, you should also try to figure out where you originally got the photo and if you, in fact, did have permission from that source. After you’ve verified their ownership of the copyright, and since we’re assuming here that you used it without authorization, you should probably try to negotiate with them as much as possible. Otherwise, they do have the right and the option to sue (your pants off).
Let’s say you didn’t use the photo, or you had permission (via license or otherwise).
In this scenario, you’ll need to contact the photo stock house and explain the situation–either that you didn’t use the photo or that you had permission. If you have a license for the photo, you should provide that or other proof that you were authorized to use the photo. If you never possessed or used the photo, say so, and hopefully you can resolve the situation.