Copyright Basics: What It Protects, Who Owns It, and How to Stay Compliant

What Copyright Protects—and What It Doesn’t

Many people understand the basic idea of it: Copyright laws can protect original works of authorship fixed in a tangible medium of expression.

But what may be considered a “work of authorship,” how “original” does it have to be, and what does “fixed” in a “tangible medium of expression” really mean?

Categories of works which are protectable by copyright commonly include literary works of most types, photographs, visual art, music and sound recordings, software code, audiovisual works, choreographies, and architectural works.

Copyright does not protect ideas, plain facts, systems, methods, procedures, names, titles, short phrases, or familiar symbols. It also does not protect works that are not fixed in a tangible form, purely functional elements, or content that is in the public domain.

Each and every category of copyrightable material has developed its own nuances, rules, and exceptions within the dense and often murky world of copyright law.

For one example, while you most certainly cannot copyright a fact, or even a collection of facts as to the facts themselves, you can copyright the “other parts” of a compilation or database of facts, such as the orientation, design, and order of the facts in the dataset. Confusing? Of course it is.

Without getting too deep into the labyrinth of issues which can arise from all over the place in copyright law, the very basic iteration of the minimum requirement for a copyrightable “work of authorship” is that the work must (1) be “independently created,” and (2) display at least a “modicum of creativity.” This is actually quite a low threshold.

Of course, the work must also be fixed in a tangible medium of expression—essentially, this just means that the work can be perceived, reproduced, or transmitted for more than a “transitory” duration. A recorded movie, photograph, or book obviously qualifies. So does a written choreography for a dance routine.

But what about an incredible, improvised saxophone performance played one time in a lounge, which goes wholly unrecorded? That would probably not be copyrightable, since the only “media” in which that might be considered “fixed” are the memories of the lucky listeners, and that simply will not do for copyright purposes.

Who Owns Copyright

Many are surprised to learn that you actually automatically own a copyright in any work of authorship you create, so long as it qualifies as a copyrightable work, as described above. In most cases, the initial owner of a copyright is the author who actually created the work. For jointly-created works, the “co-authors” generally share ownership in equal part.

For employees creating within the scope of employment, the employer usually owns the work as a “work made for hire.” For independent contractors, ownership generally remains with the creator unless there is a written agreement assigning their copyright to someone else.

Perhaps unsurprisingly, the spheres of “works made for hire” and independently commissioned works of authorship can present quite complex issues, which could be an article (or a library) of its own.

How and When Copyright Arises

Copyrights attach automatically when original works are fixed in tangible media. “Fixing” a work in a tangible medium might involve saving digital files, writing down texts or a composition of specific musical notes, recording audio or video, or uploading or printing out a photograph. Importantly, no notice, filing, or registration is required in order for your work to acquire copyrights.

Registration Basics and Key Benefits

As stated above, registration with the United States Copyright Office (“USCO”) is not required to own a copyright, but it provides many significant benefits:

1. You generally cannot sue someone for copyright infringement in the United States if the relevant copyrighted work is not registered with the USCO.
2. Registration establishes a public record of ownership and can provide evidentiary benefits.
3. Timely registration may make the copyright owner eligible for additional damages and potential recovery of attorneys’ fees in a copyright infringement lawsuit.
4. Registration may be required in order to facilitate enforcement by certain online platforms and media service providers.

The basic steps of copyright registration typically include identifying the work(s), completing an application, paying the fee(s), and submitting copies of the work(s) to the USCO for the use of the Library of Congress.

Consider registering groups of related works in order to save money and simplify applications. For instance, in many cases you can pay one filing fee for one application that covers multiple songs (i.e. all of the songs on an album), multiple books, multiple photographs, etc.

Common Infringement Scenarios Online and in Marketing

This could be a book on its own as well, but in short, here are some things to avoid doing if you would like to protect yourself from potential liability for copyright infringement:

• Using images found on search engines or social media without the copyright-holder’s permission.
• Incorporating third-party music into your YouTube videos, reels, podcasts, or ads without a proper license.
• Reposting articles, blog posts, or newsletter content in full without a license or a valid fair-use purpose.
• Copying website text, product descriptions, or code for your own republication.
• Using competitor photos, testimonials, or other user-generated content in advertising. (Note: Doing this also could also have major unfair competition and trademark-related implications.)
• Creating derivative works (e.g., edits, remixes, mashups, sequels or prequels) without authorization.
• Improperly relying upon providing “credit” to the author or disclaiming your use as “noncommercial use”—neither of which are sufficient to avoid copyright infringement liability.

Fair Use Overview and Practical Cautions

Fair use is a somewhat complicated, limited exception that may allow otherwise-infringing uses of a copyrighted work without permission. For instance, some uses which may allow for a fair-use defense include commentary, criticism, news reporting, teaching, scholarship, or research. Bear in mind that fair use is an affirmative defense, meaning that the author of a work you used could still sue you for infringement, and you would then bear the burden of proving that your use was fair and thus not an infringement.

Federal law requires the court to consider multiple factors, including the purpose and character of the use, the nature of the original copyrighted work, the amount and substantiality of the parts used, and the effect upon the market for the original work.

Fair use is a fact-specific defense which can get quite complex. If you are considering using materials which you believe contain someone else’s copyrighted work, it is best for you to speak with an attorney first.

Conclusion and Call to Action

Copyrighted works are things we see every single day, everywhere we go in American society. Photographs, articles, books, software programs, songs, TV shows, and the like all implicate copyrights.

For most of us, we do not think about it much except that we are raised knowing that we can get in trouble for reproducing these works without permission. For the authors of these works we enjoy all the time, though, copyrights are often the primary guardians of the fruits of their lifelong labors.

Without copyrights, much of the incentive to create enjoyable media would be lost, and thus much of it would not have been created—and a much blander world that would be.

Disclaimer

This article provides general information and is not legal advice. You may have also (hopefully) learned from this article that it is a copyrightable and copyrighted work! With that said, nothing contained in this article is a substitute for advice from a qualified attorney about your particular situation.