Last Friday, I was lucky enough to have the Boston chapter of AIGA let me give a presentation on copyright law. During the event, we covered copyright basics, a smidgen of trademark law, and a dash of Massachusetts right of publicity law, which I’ve covered here before. I thought it might be fitting to give a quick recap of the highlights of the presentation.
Your Work is Protected the Moment You Create It
That’s right, the subject matter of copyright is an “original work of authorship fixed in any tangible medium of expression.” As soon as you commit your original work to a “tangible medium” – a writing, drawing, photograph, digital painting, etc. – you have a copyright.
Additionally, the bar for originality is low. You don’t need to come up with a brand new, never-before-seen artistic expression. Rather, your work need only be independently created (meaning not copied) and possess at least some “minimal degree of originality.” There's a lawyer joke in there somewhere...
What doesn’t copyright protect?
- methods of operation
- names and titles
- slogans and short phrases
- useful articles
The Crown Jewels: The Six Exclusive Rights
That’s why we’re all here, right? Copyright owners possess six exclusive rights: the right to
- reproduce the work;
- prepare derivative works;
- distribute reproductions of the work;
- publicly perform the work;
- publicly display the work; and
- publicly perform sound recordings via digital audio transmission.
The copyright owner has the exclusive right to exercise, exploit, and license these rights as he or she desires.
Copyright Ownership (Usually) Vests in the Author(s)
Copyright ownership typically belongs to the author(s) of the work. If the work is created as a work-for-hire, however, the employer or person for whom the work is created is deemed the author and is therefore the copyright owner.
The simplest work-for-hire case is when a work is created by an employee within the scope of his or her employment. However, sometimes it isn’t clear whether a work was created by an employee or an independent contractor. Fortunately, the Supreme Court of the United States has given us some guidance. Ultimately, the question depends on how much control the employer or client exerts over the means by which the work is created. There are a dozen or so factors we can weigh in order to determine the extent of this control:
- the skill required to create the work;
- the source of the instruments or tools;
- the location of the work;
- the duration of the relationship between the parties;
- whether the hiring party has the right to assign additional projects to the hired party;
- the extent of the hired party’s discretion over when and how long to work;
- the method of payment;
- the hired party’s role in hiring and paying assistants;
- whether the work is part of the regular business of the hiring party;
- whether the hiring party is in business;
- the provision of employee benefits; and
- the tax treatment of the hired party.
No one of these factors is determinative.
With respect to transferring copyright ownership, you cannot inadvertently transfer your copyright. Sale or transfer or copyright ownership must be memorialized by a written instrument signed by the copyright owner.
Copyright Protection Lasts a REALLY Long Time
For works created on or after January 1, 1978 (the effective date of the Copyright Act of 1976, the current iteration of the copyright statute), the copyright term is the life of the author + 70 years. For works jointly created by two or more authors, the term is the life of the last surviving author + 70 years. For anonymous works, pseudonymous works, and works-for-hire, the term is the first of either 95 years from publication or 120 years from creation.
Once the copyright term expires, the work enters the public domain, where it may be used by anyone for any purpose. Be careful, though: even if a work enters the public domain, it may still be protected by other intellectual property rights. For example, Mickey Mouse’s debut animated short “Steamboat Willie” is currently expected to enter the public domain in 2024. Even if the copyright protection for it ends as scheduled, Disney still has 20 registered trademarks for various versions of the name “Mickey Mouse:”
Copyright Registration: Required if You Want to Sue for Infringement
While we also discussed infringement (and fair use) during the program, it is such a significant part of copyright law that I think it would be more appropriate for me to cover it in a separate post at a later date. Nevertheless, copyright infringement enforcement is a big motivator for registration. Ideally, you will have registered your copyright prior to any incidents of infringement. Better yet, the work will be registered prior to publication of the work. However, this isn’t always how things go. In the event that your unregistered work is infringed:
- you may only pursue litigation after you apply for registration;
- you may not collect attorney’s fees; and
- you may not elect to sue for statutory damages.
The choice to register a copyright is ultimately a business decision on your part. If you expect a work to be commercially successful, widely disseminated, or a target for infringement, it might be in your best interest to register it. Registration is straightforward and fairly cheap: the current filing fee for online applications is only $35 - $55.
Overall, it was a fun program to deliver and the participants had a lot of fantastic questions. In fact, I plan to dig more deeply into some of their questions and post about them here, so expect some content about fair use, creative commons licensing, and a follow up to right of publicity in the future!
As always, comments are welcome, and if you have any questions about copyright law, please contact me!