Copyright law is an often misunderstood legal issue that can have big implications for your business. A copyright is the legal right to control the use of an original, creative work. Without copyright protection, there would be very little incentive for authors, artists, and others to share their work, or even go through the creative effort in the first place.
Copyright protection attaches the moment a work is created. No formal filing is required, but if someone intends to make money off a creative work, registration is highly recommended, as discussed below. Copyright protection is only available for some works, including literary works (books, articles, poems, etc.), songs, dance choreography, computer programs, movies, sculpture, pictures and paintings. Copyright law only protects creative works; it does not protect ideas or facts.
There are a few key elements. The work needs to be original. It must also be fixed in a tangible medium of expression, meaning that the work must be in a form that someone else can perceive and reproduce. Any original creative work scrawled on a napkin, written in a notebook, stored in a computer, or painted on canvas and hung on the wall should qualify.
Copyright law gives quite a few exclusive rights to the owner, including:
- the right to control copying of the work;
- the right to distribute copies of the work through sales, licenses, leases, etc.;
- the right to prepare alterations of the work, known as “derivative works”; and
- the right to perform or display the work in public.
That’s not a comprehensive list, but it covers the most important rights.
Copyright infringement happens when someone violates those rights. For example, sharing a song online violates the copyright owner’s right to distribute the work. There are some exceptions. For example, a book purchased from a book store can be resold at a garage sale without violating the author’s rights.
Unfortunately, there are quite a few myths and misunderstandings about copyright law. Here are a few of the more prominent ones:
Myth #1: It was on the Internet, so anyone can copy it.
Just because it’s easy to copy something doesn’t mean that it is legal. Everything on the Internet was created by someone, so there will be a copyright owner out there for everything you can find online. Many sites provide a release allowing copying, but if you can’t determine whether the copyright owner gives permission to use the work for commercial purposes, don’t do it. Most search engines, like Google, allow searching for specific images or text. This allows copyright owners to quickly and easily determine if their work is being used by someone else. As a result, it is getting much easier to enforce copyright violations on the Internet.
Myth #2: If the copyright symbol isn’t there, the work isn’t protected.
A copyright notice looks like this: © 2018 BusinessNorth. The notice tells you that the work is subject to copyright protection, was first published in 2018, and that BusinessNorth is the copyright owner. Works published after March 1, 1989 don’t need to include the notice. It’s still a very good idea to include this notice on your work, however, because it prevents someone from claiming that they didn’t know the work in question was subject to copyright protection.
Myth #3: Fair Use allows lots of copying.
Small parts of copyrighted works can be copied in limited circumstances under a legal doctrine called “fair use.” There is no hard and fast rule about what is considered fair use. If someone asserts that allegedly illegal copying is actually a fair use, courts look at the purpose of the use (commercial, non-commercial, educational, etc.), the nature of the copyrighted work, the amount of the work that was copied, and the effect of the copying on the market. True fair use is usually found in news reporting, criticism or commentary, short quotations in scholarly work and similar situations.
Myth #4: You can’t get sued for copying something if you don’t make any money.
The law recognizes that all creative works, even those with little commercial value, are still worth protecting, so the fact that an infringer isn’t making money from copying a work is generally irrelevant. A copyright owner can bring an action in federal court to halt copyright infringement. If the work is not registered with the U.S. Copyright Office, the owner will have to go through that relatively short and inexpensive process before starting the lawsuit. Once registered, the copyright owner can obtain an injunction to halt infringement, which is a court order requiring the alleged infringer to stop. Whether or not the infringer is making money doesn’t matter. If money is involved, the copyright owner can also seek damages, including lost profits and any actual profits made by the infringer.
If the work was registered within three months of its first publication, additional damages may be available through statutory damages. These are damage amounts set by law between $750 and $30,000. If the infringement was willful, statutory damages can be as high as $150,000. The owner may also be able to receive their court costs and reasonable attorney’s fees. These damages can add up very quickly.
Myth #5: Paying someone to create a work gives you the copyright.
Imagine a business has a photographer take some photos for an advertisement. Later, the business finds out that the same photos are being used in a competitor’s ads as well. Your first reaction might be that since the business hired the photographer, the business owns the pictures. That’s not always true.
If an employee took the pictures, the business would own the copyright. That’s because if an employer pays an employee to create something in the normal course of employment, the employer owns the copyright.
The answer might be different if the business hired an outside photographer to take the pictures. In general, the creator of the work owns the copyright to the work. As a result, the photographer would own the copyright to the pictures, and the business might not be able to stop the competitor. The solution is to have a written agreement that assigns the copyright to the photos to the business upon completion.
There is one exception for specific commissioned works known as “works made for hire.” These are specific works defined in federal law, such as a translation, part of a collective work (a magazine, encyclopedia or anthology consisting of separate works), part of a movie, a textbook, a test or a few other very specific works. Even then, there must be a written agreement stating that the work is made for hire.
Understanding these copyright basics can help you avoid problems that take you away from running your business. Please understand, however, that this article only provides a basic overview of copyright law. As always, please consult an attorney if you have any questions.
John Gasele is an attorney at Fryberger, Buchanan, Smith & Frederick, P.A., practicing in the areas of corporate, utility, Internet, trademark, and copyright law. You can reach him in the firm’s Duluth office at 218-722-0861.
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