Whether you are artist, author, photographer, or anyone else who creates works of arts to support yourself, you will need help protecting your creative rights.
Developing creative works represents an important investment of time, effort, and other valuable resources. Taking steps to secure your work is an important aspect of protecting your investment.
My name is Sam Mollaei, Esq. and I’m an intellectual property and business lawyer in Los Angeles.
I have extensive experience with copyright and trademark so I decided to share my knowledge in copyright to make it easy and understandable for creative artists and entrepreneurs to use copyright law to their advantage.
By the end of this guide, you’ll be well-equipped to use copyright protection for your benefit and to avoid serious legal trouble with copyright infringement.
Everything you need to know about copyright is in this guide so you don’t have to worry about missing anything.
Intellectual Property rights are legally recognized exclusive rights to creations of the mind.
The purpose of copyright is to promote the progress of artists by giving creators exclusive rights to their works.
As you can imagine, if you created something and everybody had the right to use it without paying you, not very many people would go through the trouble of creating anything.
Copyright allows you to legally protect your creative work.
Copyright protects original works including pictures, blogs, articles, books, plays, songs, photographs, sculptures, choreography, architectural works, sound recordings, motion pictures, and other creative works.
Typically, authors, artists, choreographers, architects, and other creative professionals seek copyright protection for their work.
The Internet is fast becoming a sanctuary of copyright abuse. The idea of freedom of information and the ease of posting, copying and distributing messages online has created a false impression that text and graphic posted online are exempt from copyright protection. However, this is not true.
Copyright law was established not to give the author the right to deny his or her work to other people, but instead to encourage its creation. Copyright is a delicate balance between the rights of the creator and the public’s interest.
My goal in this guide is to help you better understand how to use images, videos, text, and other content in a way that is both legal and respectful of the author’s ownership rights.
With that understanding, let’s get into detail of what copyright is…
What is Copyright?
Copyright is a law that gives you ownership over the things you create.
That means generally, any time you create something, you own it.
Copyright protects any kind of work, including musical works (including song and lyrics), literary works (such as books, articles, and blog posts), dramatic works (like plays, tv scripts, screenplays), photographs and illustrations (including paintings, photographs drawings, graphic designs), movies and videos, and even sound recordings.
If you created any of these, you own it.
As the Owner of a Copyright, You Have the Exclusive Rights To:
- Make copies of the work,
- Make derivatives or revisions (which means modifying work to produce new work),
- Distribute or publish the work,
- Perform the work in public, or
- Display the work in public.
These are your rights and your rights alone. Unless you willingly give permission for anyone to do any of these, no one can violate them legally.
It doesn’t matter if someone gives you attribution. If they don’t have permission, then can violate use your work and violate your copyright.
Also, if you’re looking for material to use or reuse, you should not do any of these things without either asking permission from the original copyright owner. Simply put, if you don’t have permission to use a copyrighted work, you put yourself in risk of legal action, regardless of your intentions.
In general, it is illegal for anyone to do any of the things listed on the screen with a work created by you without your permission, but there are some exceptions and limitations to your rights. One major limitation is the doctrine of “Fair Use” which we’ll discuss later in the course.
The holder of a copyrighted work has full control to do what they want with their work. It’s no different than owning a car, a house or a pen. You can lend it out to a friend, sell it, modify it or even destroy it.
In other words, if you own the copyright to something, you have the same rights that you do with anything else. After all, you did create it. It only makes sense that you would own the fruits of your labor. That’s what copyright law is all about.
What Does Copyright NOT Cover?
Copyright law only covers the particular form or manner in which ideas or information have been manifested — this includes the types of works that copyright covers earlier in the lecture.
However, copyright does not cover the actual idea, concepts, facts, or techniques in the copyright work.
For example, the copyrighted “Iron Man“ comic books may not be reproduced and distributed for sale without permission from the copyright owner. The copyright also prevents others from creating similar works involving the Iron Man character.
However, the copyright does not prohibit anyone from creating a work about a sophisticated hero character in general.
Also, I wanted to reiterate that generally speaking, facts may not be copyrighted; but content related to presentation, organization and conclusions derived from facts certainly can be. And again, keep in mind that ideas cannot be protected, only the product of ideas.
How Long Does Copyright Last?
The length of copyright protection depends on when you created on it. A copyright typically lasts the author’s lifetime, plus an additional 70 years. The term cannot be extended or renewed.
That’s pretty much a quick, good summary of what copyright entails that relates to you as a creative artist, entrepreneur, or content producer.
3 Most Important Rules of Copyright You Need to Know
I compiled a list of 3 short but important rules of copyright you need to know.
If you learn and understand the following 3 rules, you’ll know more than 99% of the general population about copyright law:
Rule #1: If it’s published, it’s copyright protected.
The Copyright Act 1994 explains how published content can and cannot be used. The general rule of copyright law is that if a work is published, it’s copyright protected. The Copyright Act kicks in the moment you wish to copy, scan, save or share published material.
Rule #2: You can’t use everything you find online.
People are under the impression that if you find it online, then it’s up for grabs. However, just because you find it online (for example, if you find a picture with Google Image search), doesn’t mean you can use it. If you keep this rule in mind, you’ll be able to prevent most cases of copyright infringement.
Rule #3: There are free sources you can use to prevent copyright infringement.
One of the myths out there is that you can’t use any image, video, or content from another website on your blog.
That simply isn’t true, and I’ll cover my favorite sources of free images, videos, and text you can use at the end of this lecture under “Sources You Can Use Without Legal Trouble”
It’s troubling that while copyright is important to protect the hard work of others, it can also limit creativity and freedom that art offers. There’s definitely a need for newer laws that are made around the open and free-sharing nature of the internet.
Again, keep these 3 important rules in mind every time you use a creative work:
- First, If it’s published, it’s copyright protected.
- Second, you CAN’T use everything you find online, and
- Third, there are free resources you CAN use
What’s the Difference Between Copyright vs. Trademark vs. Patent?
At a fundamental level, Copyright protects your original creative works such as books, movies, songs, paintings, photographs, and web content. As the owner of a copyright, you can control how your work is reproduced, distributed and presented publicly, and you can sue infringers in court. An idea itself cannot be copyrighted.
A work must be in a fixed, tangible form to be protected. Copyright registration provides legal evidence and public notice of ownership, and by allowing the copyright owner to bring suit in court if there’s any infringement. Authors, artists, and other creative professionals typically seek copyright protection.
On the other hand, Trademark protects the names, symbols or slogans for products or services that you sell. In other words, a trademark lets the consumer tell the difference between one company’s product or service from another’s.
Trademarks include brand names such as “Coca-Cola” and images such as Nike’s famous “swoosh.” As the owner of a trademark, you can sue for trademark infringement and prevent someone else from using your name, symbol, or slogan. A trademark registration can potentially have an unlimited term, but has be renewed every ten years.
The owner can renew the trademark registration as long as the mark remains in continued use. For more information about how to file your own trademark, feel free to enroll in my course, “How to Trademark on Your Own.” Business and product owners typically seek trademark protection.
And lastly, Patent protects your inventions and designs. There’s two kinds of patent protection — utility patent and design patent. Utility patent protects your inventions with a new or improved function, such as machines, processes, or chemical compositions.
On the other hand, design patent protects any new, original, and ornamental design for an article of manufacture that does not affect the article’s function. Filing a utility or design patent gives you the exclusive right to prevent others from making, using, selling, or importing the protected invention.
If you do not file a patent, then the law doesn’t offer any protection for your invention. A utility patent protects an invention for 20 years and it cannot be renewed. On the other hand, a design patent protects a design for 14 years and it also cannot be renewed. Inventors and designers typically need patent protection.
So there we have it. There’s 3 kinds of intellectual property protect you can seek for your product, service, names, symbols, slogan and inventions and designs.
Copyright protects your creative works. Trademark protects your names, symbols and slogans for those products or services. and Patent protects your inventions and designs.
What is “Work Made for Hire?” & How Does it Apply to Me as a Content Creator?
So if you’re an employee and you work for someone else, who owns the work you create?
Generally, the person who creates a work is considered the copyright owner.
However, there is an exception to the general rule that is called the “work made for hire” which means that if a work is made by an employee, then the employer, and not the employee, is considered the copyright owner of the work.
For example, if you draft a company newsletter as part of your job, your company, not you, owns the rights in what you write for the newsletter.
On the other hand, if you’ve written a novel or a computer application in your spare time, and that isn’t your job, you, not your employer, own those rights. That’s important to remember for the many creators who also have day jobs.
In order for the work to be considered as a “work made for hire,” the work must be prepared by an employee within the scope of his or her employment.
In other words, if you created the work as an employee while you were working as an employee, then your employer technically owns the work. Also, the employer and employee have to agree in a written contract that the work is considered a “work made for hire.”
Even when you create works as part of your job, it may be possible for you to negotiate to get some rights back from your employer. Unfortunately, its not just employees who need to look out for the work-for-hire doctrine.
Some freelance creators, particularly journalists, photographers and screenwriters, may also be affected.
If you’re an independent contractor, your work will be covered under the “work made for hire” doctrine only if your contract says so. So if you’re an independent contractor, make sure to check the independent contractor agreement you signed with the person who hired you to find out who actually owns the work you create.
If the employer knows what he or she is doing, then the employer will have a clause in the employer contract or in the independent contractor agreement that the employer owns any of the work that the employee or independent contractor creates while working for the employer.
If there is no signed written agreement, then the work isn’t for hire, and you start out with all the rights. If there is a written agreement, it should be entered into before you create the work.
Beware of after-the-fact attempts to take away your rights by calling the work “for hire,” for example by sending you a check whose endorsement line says that your signature is your agreement that the work was for hire.
To summarize, if a work is “made for hire”, the employer — not the employee — is considered the legal copyright owner.
What is Copyright Infringement?
Ensuring that your work is copyrighted is essential. But what happens when your copyright is breached?
Copyright infringement happens when someone copies or uses a work without the copyright owner’s permission. Infringement is the same as stealing physical property.
To be infringing, the infringer’s work need not be identical. The standard for infringement is whether the work is “substantially similar” to the original work. “Substantially similar” means that an average person looking at the two works would recognize that the work was copied from the other.
We won’t go more in depth about copyright infringement but just remember that for it to be considered copyright infringement, the work has to be “substantially similar” to the original work.
What If I’m Caught for Copyright Infringement?
So what happens if you’re caught for copyright infringement?
In this case, a good offense is your best defense. Check your websites and blogs for any potentially offending material. If you find anything that could potentially infringe someone else’s copyright, just remove it.
If you’re infringing on copyright, the law requires copyright holders to give you (and the host of your site, such as WordPress) an official notification. If you do receive a notification that you’ve infringed someone else’s copyright, you should take these serious and act quickly to remove what they want you to remove.
That typically should be the end of a copyright infringement case in most cases.
In more serious cases, you should contact an intellectual property lawyer who will help evaluate your case and defend your copyright infringement.
What’s the Penalty for Copyright Infringement?
By reproducing, republishing or redistributing the work of a copyright holder without permission, you may be violating or infringing on the original copyright owner’s rights.
If the copyright holder has registered the work with the U.S. Copyright Office prior to the infringement, the copyright holder can sue for compensation. Court-ordered compensation can include damages such as lost profits from the infringing activity or legal damages from $250 to $150,000, plus attorney’s fees, for each infringing copy.
Keep in mind that even higher damages can be awarded if the court feels that the infringement was committed “willfully.”
You may also be criminally liable if you willfully copy a work for profit or financial gain, or if the copied work has a value of more than $1,000.
In these cases, penalties can include a one-year jail sentence plus fines. If the value is more than $2,500, you may be sentenced to five years in jail plus fines. Criminal penalties generally apply to large-scale commercial piracy.
In summary, copyright infringement can be a serious issue, especially if you’ve done it willfully. So if you ever face a copyright infringement notice, make sure to remove the content right away and if it’s serious, talk to an intellectual property lawyer who will help you with your case.
How to Register Your Copyright
So do you need to register your copyright?
The way in which copyright protection is secured is frequently misunderstood. In fact —you’re not required to register your work for copyright.
What you need to know is that copyright is secured automatically when the work is fixed in a tangible form — such as the first time it’s written or recorded.
What this means is that as soon as you create a work in a tangible way — for example, writing it down or creating it in a physical way — then you automatically have copyright to it. No other action is required to secure copyright protection.
Only the author, or those who received permission from the author, can rightfully claim copyright. In the case of works made for hire, the employer—not the writer—is considered the owner of the copyright.
Although copyright automatically applies to any creative work you produce, you can strengthen your legal copyright protection by registering works with the U.S. Copyright Office. Doing so establishes an official record of your copyright, and it gives you the ability to sue for infringement if anyone steals your work. In other ways, you have to have a registered copyright in order to file an infringement lawsuit in court.
In order to register a copyright, visit the Copyright Office Website at www.copyright.gov and click on Register a Copyright.
Early copyright registration is the best proactive step you can take to ensure that you will have the full protection should an infringement occur.
When Should You Use a Copyright Symbol ©
The use of a copyright notice is no longer required under U.S. law, although it is recommended. This requirement was eliminated in 1989. If you want to use a copyright notice, you’re free to do so. In fact, the use of a copyright notice is recommended because it reminds the public that the work is protected by copyright.
A copyright notice should have the following 3 elements:
- the symbol © (which is the letter C in a circle), or spell out the word “copyright”
- the year when the work was first created, and
- the name of the owner of the copyright.
Example: © 2005 John Doe
You should place a copyright notice on each of your web pages and other published materials.
Defense to Copyright Infringement: Fair Use
In United States, “Fair Use” is a defense to copyright infringement.
What’s important to know about Fair Use is that Fair use is based on fairness and it’s decided on a case-by-case basis. So that means there’s no bright line rule and that each case falls on its own facts. In fact, the Supreme Court has made it clear that all factors must be considered in any given case.
Fair Use does not allow you to steal other people’s work. Rather, the purpose of Fair use is to promote creativity and to allow people to make more original creations.
The following items are usually deemed Fair Use and thus may be a defense to copyright infringement:
Criticism & Commentary
Critique of a copyrighted work, such as a book review are typically considered fair use.
Parodying an artist work is considered fair use. For example, YouTube parodies.
For example, copyrighted material that is needed to explain a news event to the public is typically considered fair use.
Research & Scholarship
A work contributing to research and educational purposes may require using other’s copyrighted reference material and may also be considered fair use.
Non-Profit Educational Uses
Teachers and instructors may use copyrighted materials to instruct their students for educational purposes.
You might be aware that as educators, we have a few more flexible rules, called “Fair Use”, to play by.
That is, in some cases, if an image, text, video, etc. is being used for educational purposes, there might be more flexible copyright rules.
For example, a video that was purchased in a store can usually be shown in a classroom when the video is tied to the curriculum being taught. Otherwise, showing a class full of students a video would be considered a “public performance” and would be against the law.
The trouble is, most of the laws and rules that cover fair use and education were written well before the invention of the web.
While a textbook or curricula resource might allow for photocopying for classroom use, it most likely isn’t going to allow you to make a PDF of the document and put it on your class blog or website for students to print themselves.
The end result would be the same, right? A student would have a printed copy.
But make sure to check specific copyright restrictions before uploading anything you’ve scanned to the web!
For more, check out the Fair Use FAQ for Educators here from the excellent resource site, TeachingCopyright.org.
We’ve covered the basis of the Fair Use doctrine, so you can be more aware of when you may be able to use copyrighted material without the copyright owner’s permission.
However, it’s always better and more safe to attempt to get permission from the original copyright owner as this will show good faith on your part to prevent copyright infringement. Fair Use is a defense against a claim of Copyright infringement and it lays out situations in which you do not need to get a copyright owner’s permission to use their material. Fair use means you can use existing, copyright content in new ways that provide value beyond the original.
Public Domain Does NOT Offer Copyright Protection
The public domain is all works that are either no longer protected by copyright or never were. It should not be confused with the mere fact that a work is publicly available (such as any content online or any information in books or magazines).
Essentially, all works first published in the United States before 1923 are considered to be in the public domain in United States. The public domain also extends to works published between 1923 and 1963 on which copyright registrations were not renewed.
All materials created since 1989, except those created by the U.S. federal government, are presumptively protected by copyright. Also, you must also consider other forms of legal protection such as trademark or patent protection before reusing third-party content.
Public Domain Materials Generally Fall into one of four categories:
- Generic information such as facts, numbers and ideas.
- Works whose copyrights have lapsed over time or whose copyright holders have failed to renew a registration .
- Works published before March 1989 that failed to include a proper notice of copyright.
- Works created by the U.S. federal government.
- In rare instances, works may also be donated to the public domain.
In summary, you can use any of these works in the public domain without worrying about copyright infringement. For the most part, you just have to know that facts, numbers, and ideas are considered part of public domain and copyright protection does not apply to them — so you can use them as you please.
What is International Copyright?
There is no such thing as an “international” copyright that automatically protects a work throughout the world.
However, the most widely-adopted copyright treaty, the Berne Convention, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them. As of 2016, 156 countries, including the U.S., belong to the Berne Convention.
The Berne Convention further says that the scope and limitations of any copyright are based on the laws of the country where the misuse of the copyright-protected work takes place (rather than the country where the work originated).
For example, if you photocopy an article in United States, then U.S. copyright law applies to determine whether that copy was lawful. In the same way, if you illegally use an image in India, the copyright laws of India apply to determine whether that image use is lawful.
However, there are grey areas when it comes to the online usage of copyright-protected content. For example, if an article is uploaded in United States and then viewed online in Egypt, where is the “copying” taking place – and is there more than one “copy” being made?
Courts in United States and around the world have yet to provide definitive answers as to what country’s laws should be used to determine online copyright infringement in this case.
To avoid a potential legal challenge from the copyright holder, I would recommend following a policy of always obtaining permission whenever you use someone else’s work.
Here we are. I want to provide a quick course summary of everything we covered in this guide about copyright law.
Copyright is a law that gives you ownership over the things you create. That means generally, any time you create something, you own it.
Copyright protects any kind of creative work, including photos, videos, songs, and literary works.
When you create any of these, you own the copyright to it. These are your rights and your rights alone. Unless you willingly give permission for anyone to do any of these, no one can violate them legally. Keep in mind that ideas and concepts are not protected by copyright law.
In general, it’s illegal for anyone use or copy your work without your permission, but there are some exceptions and limitation to your rights — Fair Use and public domain works — both which we covered in detail.
We also talked about the 3 most important rules of copyright you need to know:
- First, if it’s published, it’s copyright protected,
- Second, you CAN’T use everything you find online,
- And third, there are free resources you CAN use — which you can find provided in this lecture titled, “Resources of Images and Videos You Can Use Without Legal Trouble.”
When it comes to photos, images, and content, when in doubt, assume it’s subject to copyright and don’t use it without the appropriate permission.
What it comes down to is that if you need to use another person’s material, make sure it fits clearly into one of the protected purposes of fair use or if you’re not sure, ask an intellectual property lawyer who can clarify it for you.
Fair use may be an exception allowing you to use copyrighted content, but chances are you’ll be in for a discussion or possibly find your content taken down by your host if the copyright holder disagrees.
Unfortunately, there are no clear bright-line rules when it comes to fair use and using content on the internet. As we discussed, the Internet is still very much in its infancy when it comes to applying fair use.
If you’re considering taking images from large websites, they have legal teams that do nothing but look for infringing uses. There are inexpensive ways to search for images online.
And if you’re thinking you’ll just crop the image so you can’t see the copyright notice or other identifying information, think twice about that because the penalty for doing so is very stiff— sometimes up to $25,000, plus attorney fees and damages.
There are many resources for free images and videos, whether public domain, licensed creative commons or inexpensive stock images, so you really shouldn’t need to use copyright-protected works for your blog, website, or video.
But if you really have to have that image, ask first. You’d be surprised at how many people would gladly give permission for use of their images.
Use the information from this course to make good decisions and you’re likely to be just fine. If you’re ever in doubt, ask an intellectual property lawyer.
I hope you benefited from my guide!
A copyright lawyer is able to offer legal advice and service regarding the use of copyright, filing a registration, licensing, cease and desist letters, and marketing. Further, a copyright attorney may help prevent legal problems before they occur.
Mollaei Law is a law firm specializing in business law serving businesses and entrepreneurs. We provide legal expertise in all stages of business development by drafting and reviewing contracts and agreements, assisting transactions and negotiating, forming LLC’s and Corporations, registering trademarks and copyrights, business planning, and answering any legal questions you may have about your business.