Disclaimer: I am not a lawyer or expert in Copyright or intellectual property law. What follows is just one lay person’s observations based on my years of work in businesses where Copyright issues sometimes arise. Also, this article is simply a general overview of Copyright that doesn’t attempt to explore the many details and nuances of these issues.
Most people have heard the term “Copyright”, but have little (if any) understanding of what Copyright is and how it affects their day to day business.
There is a lot of confusion about copyright, and what many people think of as “common knowledge” about copyright is incorrect. For one thing, the laws have changed over time. Also, there are widely used business practices that don’t follow the letter of the law or haven’t kept up with its changes. To make matters worse, neither the law nor business practices always follow what the general public would consider “common sense”.
What is Copyright?
The general concept of Copyright isn’t difficult to grasp — it just means that someone “owns” a photograph or other creative work, and therefore has the legal right to control how it is copied or otherwise used. Simple, right?
After all, if you own a car, you get to say who drives it, and if you own some land, you get to say who can come onto that land and what they can do there. Just as there are laws protecting the owners of land and other physical property, Copyright law protects intellectual property owners. Violating someone’s copyright is like stealing their personal property or trespassing on their land.
The rationale behind Copyright law (and patents) is that creativity and innovation is a good thing for society as a whole and it should be encouraged by enabling the people who create things to control how their creations get copied and distributed, and thus have the potential to profit from their hard work. Historically, most societies have recognized the value of creativity and employed different mechanisms to encourage it. In the modern world, Copyright is the tool of choice in most countries of the world.
What does Copyright cover?
Copyright covers most any creative work, whether it’s a painting, a sculpture, a photograph, a song, a play, a movie or TV show, or a written work such as a poem, an article, a book, or the prepared text for a speech. Graphic designs for logos and advertisements are covered, and so is computer code. Even private letters and emails are eligible for copyright protection (although they aren’t normally treated as such).
To be considered a creative work, the author must exercise some degree of creative control in making decisions about what to include/exclude in the work and how to present it. Simply compiling a list of phone numbers in an old-style phone book is the classic example of something that is not considered a “creative” work, since it is merely an alphabetized list of all the landline phones within a geographic area.
Copyright law does not make any distinction based on the perceived quality of a creative work. Copyright covers amateur work as well as professional work, bad work as well as good work. It doesn’t matter if a written work is filled with bad grammar or disturbing content, it’s still covered. It doesn’t matter if a painting is ugly or a photograph is of a disgusting subject, it’s still covered by copyright. (Other laws address issues such as slander, libel, hate speech, child pornography, etc., but that’s not what Copyright law does.)
A photograph is a creative work because the photographer decides when and where to take the photograph, chooses the camera angle, selects or controls the lighting, frames the image, and uses lens and camera settings to control how that scene is rendered. The result is a creative interpretation of the scene. Even if the photographer uses a camera with automated focus and exposure controls, the decision to take a picture of a particular scene at a specific point in time is enough creative input to qualify the photograph for copyright protection.
Yes, even the photos you snap with your cell phone are covered by copyright.
When does a copyright take effect?
Under current United Sates copyright law, a creative work is covered as soon as it is “fixed in a tangible medium”. In other words, thoughts, ideas, and plans for a creative work aren’t protected by copyright, but it’s covered as soon as you write something down or save the file on your computer. In the case of photography, an image is covered by copyright as soon as it is recorded on the camera’s film or memory card.
Years ago, an author/artist had to apply for copyright protection by submitting a copy of the work to the Copyright office of the US government and affixing a Copyright notice to the work. That is no longer the case. Copyright protection is automatic and happens the moment a work is created, and no Copyright notice is required. Registering a work with the Copyright office and posting a Copyright notice provides the owner with some additional legal clout and enhanced protections, but it’s not required for basic protection under the law.
Every creative work is copyrighted — automatically — regardless of whether a copyright notice is attached!
How long does the Copyright last?
Copyright protection doesn’t last forever — it expires after a period of time. The idea is that copyright protection should last long enough for the creator to reap full benefit from their work, but that creative works should eventually be available, without restriction, to the society as a whole.
The period of time that copyright remains in effect has changed repeatedly over the years. It has gone from a fixed number of years, to the life of the creator, to the life of the creator plus a number of years, and the number of years has changed with various amendments to the copyright law. Interestingly, Disney has been instrumental in some of these changes, by successfully lobbying for extensions to the term of copyrights in order to ensure continued legal protection for Mickey Mouse and other animated characters.
Currently, copyright lasts for the shorter of 95 years from publication or 120 years from creation. That’s for works for which the individual creator is not known, such as works published anonymously or under a pseudonym. If the individual creator is known (or becomes known), the copyright lasts for the life of the creator plus 70 years. However, the length of copyrights will probably change again as Mickey Mouse gets older.
Who owns the Copyright?
The simple answer is: The person or business entity that created the work owns the copyright. That copyright can be transferred to someone else (intellectual property can be bought, sold, and gifted like physical property), but the initial owner is always the creator of the work.
That seems simple enough, but the question of copyright ownership is one of the most confusing aspects for many people. This is one area where “common knowledge” about copyright is often wrong.
Many years ago, copyright law was largely based on who paid for the work to be created. So if an artist created a painting on their own initiative, the artist owned the copyright, but if the work was commissioned by someone else, the person or business who paid the artist to create the work owned the copyright. A lot of people think copyright still works that way, but it doesn’t.
The creator of a work owns the copyright unless and until they transfer it to someone else. The copyright transfer has to be a written contract in order to be valid. So, in the absence of a contract stipulating a transfer of copyright ownership, the creator of the work owns the copyright, even though someone else may have paid them to do it.
The “creator” of a work isn’t always a lone artist, author, or photographer. Sometimes it’s a business. That’s the case when one or more employees of a company create a copyrightable work as part of their normal duties working for that company and use company resources to create the work under direct supervision of their employer. Things can get very fuzzy if the employee creates a work while acting outside their normal duties, especially if the employee uses any of their own resources and/or has any creative discretion.
Note that a business owning the copyright to work produced by its employees applies to employees on its regular payroll, but this rule does not necessarily apply to contractors the business may engage from time to time. For the business to own the copyright to work produced by contractors, the contractor must be functioning as a employee, using company resources to produce work under the close direction and control of the company.
Work Made For Hire
To address the issues of businesses (or individuals) that hire a creative to produce work for them, copyright law has come to recognize a concept called “Work Made For Hire”. Some people seem to think Work for Hire is a separate category of copyright ownership, but it’s really just a contractual agreement to transfer copyright ownership from the creator to the buyer that is defined before the work is produced. Like any copyright ownership transfer, it needs to be a written contract that is agreed by both parties.
The owner of a copyrighted work has the legal right to control how it is used. The key word here is “control”. Copyright doesn’t prevent anyone else from ever using the copyrighted work, it just requires that the user get permission (in the form of a “license”) from the copyright owner — usually in exchange for a fee.
It’s a lot like renting or leasing a car. You can go to a car lot and lease a car for a number of months, or go to a rental agency for a short-term deal, but either way, you’ll need to sign a contract stipulating the terms of the rental/lease agreement. If you just drive a car off without doing the paperwork, that’s theft of physical property, and using a copyrighted work without permission is theft of intellectual property.
Photographs are often licensed for a specific use and for a limited time or number of copies. For example, you might get a license to use a photograph in one brochure and print up to 50,000 copies. If you later wanted to use that same photograph on a billboard, that would require a separate license. On the other hand, a license can be very broad, allowing multiple uses by the licensee across a variety of mediums.
The odds are that you can get permission to use a copyrighted work by simply asking the copyright owner (and paying an appropriate fee). Sometimes a copyright owner may even allow their work to be used for free. But sometimes a copyright owner might NOT want their work used in a particular way (or at all). That’s their right.
When you hire a photographer, you do NOT normally become the owner of the photographs they take (unless the photographer agrees to a work for hire contract). Instead, you get photographs taken to meet your needs and a license to use those images. How you can use the images is stipulated by the license. The license might even grant you “exclusive” rights to use the image.
Fair Use of Copyrighted Works
Copyright is not an absolute prohibition on any and all use of a creative work without the explicit permission of the copyright owner. The Fair Use doctrine creates some exceptions that allow the use of copyrighted material without first getting permission. The problem is that “Fair Use” is not well defined by the law or by court rulings. As a result, this is another area where there is a lot of confusion about what is, and is not, allowed. Furthermore, a lot of “common knowledge” about what constitutes Fair Use is flat out wrong!
Fair Use does NOT mean any use that doesn’t generate a profit for the user. Many people assume that they can use a copyrighted work as long as they don’t make any money from that use or deprive the copyright owner of income from the work. However, copyright isn’t just about money. It’s about giving the copyright owner control over how a work is used. Therefore it’s still an infringement on the copyright owner’s rights use a work without permission — even if there is no monetary harm involved. Think of it this way: If you took someone’s car without their permission and went for a joy ride, you could be charged with Grand Theft Auto, even if the car was returned undamaged.
Another misunderstanding of Fair Use is that many people think it’s okay to reproduce a copyrighted work as long as they give credit to the creator of that work. Again, that’s wrong. You need permission — in advance — from the copyright owner to reproduce their work. It’s true that many artists are eager for their work to be seen as widely as possible and may therefore be willing to grant permission to use their work with the only stipulation being that they get a credit line. That’s probably the basis for the assumption that attribution constitutes Fair Use. However, it’s up to the copyright owner to decide whether to allow any specific use of their work and on what terms. You can’t assume that the artist will agree to your use just because you included a credit. Ask first!
So what is allowed as Fair Use?
Fair Use allows you to reproduce a copyrighted work for the purposes of commentary, critique, and satire. There are limits to what you can do, and you may have to defend your usage in court if you push those limits, but you could probably reproduce an image of a painting in an article commenting on a gallery opening for a new artist without getting permission first.
Fair Use covers using quotes and other small excerpts from a copyrighted work. You must be very careful about how much of the work you quote. For a haiku, you might get away with quoting the whole thing. For a song, quoting (or playing back) anything more than a single line or stanza is not likely to be considered Fair Use.
Fair Use also protects certain derivative works (new work based on a previous work), but again, it’s limited. For example, you could reproduce a copyrighted photograph as part of a collage, provided the photograph is only a small part of the new work you create. If that photograph is the primary basis for your collage, that’s not Fair Use and you need permission to use it. There is a widely held belief that if you change a certain percentage of a copyrighted work, it becomes a new work and you don’t need permission from the original copyright owner. That’s false! There is NO percentage change that automatically qualifies as a new work. A court held that a painting (a colorful silhouette) was an infringement of a photographer’s copyright because the distinctive outline, pose, and cropping of the subject was clearly copied from his copyrighted photograph without his permission.
Fair Use allows for some use of copyrighted works in education. Education is generally considered to be a benefit to society, so schools and students get to operate under somewhat more relaxed copyright restrictions. Still, that doesn’t mean that education is totally exempt from copyright law. For example, Fair Use might allow a teacher to photocopy pages from a book for use as supplemental materials for a class next week. The thinking is that it would be an onerous burden on the teacher to track down the copyright owner to obtain permission to use that material within a short time frame, and since it’s for education, the teacher gets the advantage of special consideration under Fair Use that would not be available to a business. However, Fair Use does not allow the teacher to continue using that same material year after year when there has been ample time to get proper permissions. Some people make the mistake of thinking that copyright law simply doesn’t apply to anything related to education and that they can freely use copyrighted material in a school setting. That’s NOT true!
Fair Use also allows the use of a copyrighted work without permission if the copyright owner cannot be found. Perhaps the work was created and copyrighted by a business that has since ceased to exist. To claim this as Fair Use, you would need to be prepared to prove that you made a diligent effort to find the copyright owner, including any successors that bought or inherited the assets of the defunct business.
Using a copyrighted work without permission is “infringement” — a violation of copyright law — and it’s theft of intellectual property. You can get into a lot of trouble for copyright infringement. In some cases, the copyright owner may simply demand payment of a license fee, but you can also end up in court and be forced to pay hefty damages, penalties, and legal fees. Ignorance of the law isn’t a defense, so the copyright owner is almost certain to win unless you can prove some extraordinary circumstances exist.
Furthermore, the DMCA (Digital Millennium Copyright Act) requires web hosts and Internet service providers to assist in enforcing copyright law by blocking access to offending content as soon as they are notified of a copyright infringement. In other words, using copyrighted material without permission can get your entire web site or online account shut down.
But I won’t get caught
It’s true that every copyright infringement isn’t discovered and prosecuted by the copyright owner. But don’t think that means you can get away with it.
Years ago, small-scale copyright infringement was relatively commonplace because it was so unlikely that a copyright owner on the other side of the country (or world) would ever see their pirated work published in a local market, much less attempt to do anything about it. However, in today’s connected world, everything is online, and the ability to search the entire web for a distinctive phrase or pattern of pixels gives copyright owners the tools to find infringements.