Great article my two cents, as a photographer and painter I am aware of the movement by some of my peers to protect or keep others from producing other original works that are similar. An hpyothetical example, I produce an black and white photo series of mountain flowers and female models. It is well received the originals sell like hot cakes, I produce of coffee table book with my images it makes me a lot of money. A fellow photographer grabs a couple models and heads to the mountains.. then makes a similar black and white photos. This kind of situation is going on about copywright in the courts,today. I think artist must have some integrity with regard to orignality that is not driven by law but by conscious and inspiration.
Copyright First Steps, Part 1: You are a Creative Artist!
Chances are you are a creative artist for the purposes of copyright law. This first-in-a-series article will help you understand what works the law protects.
According to copyright law, you are a creative artist.
Of course, nobody’s going to confuse my son’s drawings with a Hockney (he’s more of a Pollack), but copyright law leaves it to the marketplace to determine the relative value of creative works. The law itself grants equal protection to all creations, from a short video captured on a cell phone to the latest Steven Speilberg film, or from a simple blog post to the next J.K. Rowling novel.
If you already think of yourself as an artist, you may have a rough concept about what rights you get under copyright law (although you probably haven’t looked much at specifics). But even if you don’t directly profit from your work, you should still learn what rights you are afforded under the law.
In case you hadn’t noticed, we live in a content-saturated world. Not only have modern technologies made it easier than ever to distribute content around the globe, new businesses spring up all the time to create, deliver, or aggregate content. Moreover, businesses that never thought of themselves as content-driven are turning to new media tools like blogs or online video to promote their companies and products, and that content can be every bit as important to your brand or personal image as traditional marketing.
With all that content floating around, the urge to swipe someone’s existing work instead of creating a new one can be too tempting to pass up. Take, for example, the case where Virgin Mobile swiped a teenager’s photo from Flickr for an ad campaign.
Not all cases of infringement are that egregious, but infringement of any kind entitles the copyright holder to damages. While this Flickr example remains unresolved, any artist who knows his rights under copyright law stands a much greater chance of getting money from an infringer.
The purpose of this series of articles is to give you a basic understanding of three key principles of copyright:
- Which works are covered by copyright law,
- What rights you get as the author of those works, and
- Steps you should take to protect your rights.
A brief note: For the purposes of these articles, I will only discuss newly created works, specifically those created after March 1, 1989. The rules are different for works created before that date, and if you have any questions about older works you should consult with a copyright attorney.
Step 1: Understand whether your work qualifies for copyright protection.
Copyright protection applies to a large class of creative works, so chances are your work is covered. As with most questions involving legal protection, however, there is plenty of grey area at the margins. Therefore it is useful to understand both the purposes and the limits of the law.
Copyright law has its roots in Article 1 Section 8 of the Constitution, but for practical purposes the best source of the law is Title 17 of the United States Code. Also, unlike other areas of intellectual property law, copyright is almost entirely federal law; Congress specifically pre-empted state laws in the copyright statute.
Section 102 of Title 17 broadly defines what works are subject to protection: “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
You’ll notice that two requirements jump out from the text: (1) the work must be “original” and (2) it must be “fixed.” I’ll discuss both in turn.
Test 1: Is the work original?
The Supreme Court has spoken directly to the originality requirement, and the bar it sets is pretty low. Justice O’Connor, writing for the Court, said that “original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” (Language from Feist Publications, Inc. v. Rural Telephone Service Co., Inc., emphasis added.)
The Court goes on to stress that “original” is not the same as “novel” or “good.” Copyright law passes no judgment on the quality of a work, even if the work is so common as to constitute a cliché. All that matters is that (1) you created the work (or were part of a team of creators), and (2) the work isn’t an exact copy of some other work or doesn’t consist entirely of unprotectable elements like facts, dates, or works already in the public domain.
Even works consisting of these unprotectable elements can get some protection for the arrangement of them. Take, for example, the “Harper’s Index” feature of Harper’s magazine. Each month, the editors of that feature present a compendium of facts and data in a way that is often both amusing and thought-provoking. Copyright law doesn’t protect the facts themselves, no matter how difficult they may have been to compile. But Harper’s arrangement of those facts, and even its phrasing of the data it presents, can be protected.
Before we move on to the fixation requirement, a quick note on authorship. In most cases, the person (or group of people) that creates an original work is considered the author for purposes of the statute. In certain circumstances, however, the work made for hire doctrine may apply. The most common of these circumstances is when you create a work for your employer as part of your job. In that situation, your employer is considered the author of the work and it gets the benefits of copyright law. Other specific scenarios can trigger the “work for hire” doctrine, but the details are too complex this article. The topic is covered in Section 101 of the Copyright act, and you should consult with a copyright attorney if you have questions.
Test 2: Is the work fixed in a tangible medium of expression?
If the “originality” test is easy to meet, then this one is a true cake-walk. To rephrase the question, you should ask yourself “have I actually produced this work, or is it still just a thought in my head?” If you’ve expressed the work in any tangible form that can be perceived by other people then you’ve met the requirement.
It is important to understand, however, that copyright law only protects your particular expression, not the idea that underlies it. For example, if you have an idea to write a children’s book chronicling the adventures of a boy wizard at magic school, you don’t gain any protection on that concept until you actually write the book. But even once you’ve written the book, you still can’t prevent another person from writing their own “boy wizard” tale so long as he doesn’t directly appropriate the creative elements of your story (like the sport you invented involving flying brooms and golden balls).
If you need to protect your ideas, you can turn to legal tools like nondisclosure or confidentiality agreements, or possibly even trade secrets law. These concepts are governed by your state’s law rather than copyright, and are beyond the scope of this article.
As I mentioned above, determining whether a work qualifies for copyright protection can have some gray areas, but usually the analysis is straightforward. For a deeper look into copyrightability, you can consult Section 102 of the copyright statute for a broad list of items that qualify for protection, or you can look up Title 37, section 202.1 of the Federal Regulations to see specific items it excludes from coverage. If you have any questions about your particular works, you should consult with a copyright attorney.
In Part 2 of this series I’ll discuss what rights you get under the copyright statute, and in Part 3 I’ll cover steps you can take to protect your creative works.
Disclaimer: This article may not be current, accurate, or complete at the time you read it. Furthermore, the article's content should be construed as legal information and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney, and by reading this article you have not entered into an attorney-client relationship with its author.
Learn more about the author, John Grant.
Comment on this article
Posted by Thomas Willa, Renton, Washington |
Oct 09, 2008
Posted by John Grant, Portland, Oregon |
Oct 09, 2008
I couldn't agree more--the first step should be to do the right thing, and if the law doesn't back you up then society's got a problem. That said, the idea/expression dichotomy has always been a sticky area of copyright law since it rides the line between what is a legal right vs. what the marketplace will support. To illustrate this, let's flip your hypothetical around: Say someone takes some lousy photos of women and flowers and you say to yourself, "I can do better than that," so you grab your camera and do your own shoot. Turns out you were right and your photos sell well, but the original photographer turns up and demands a share of your profits for stealing his idea. Just because the marketplace favored your photos over his doesn't mean you should owe him money; but if your works are close copies then maybe he has a point. This is at the core of the difference between unprotectable ideas and the protected expression of them. As you indicated, the line can be blurry, and courts have even found that "unconscious copying" can trigger damages. But I think your advice is fundamentally sound: if you are driven by inspiration and your own artistic vision instead of profit-motive, you will usually come out OK.
Posted by Tom McIntire, Seattle, Washington |
Oct 09, 2008
Thanks John - this is great info. I'm a screenwriter and filmmaker and worry about this stuff alot. The fact that ideas cannot be copyrighted is a big problem for screenwriters starting out - you submit your scripts to festivals and have to accept their terms and conditions to be considered, which includes not holding the festival liable for what happens to your idea as readers screen and judges evaluate your work.
Posted by John Grant, Portland, Oregon |
Oct 09, 2008
I sympathize with your plight; I think people who are just starting out in the arts--particularly in the music and film industries--face an uphill battle against larger and more experienced players. But just because the festivals you mention try to disclaim liability doesn't mean you wouldn't have an infringement claim if someone copies your work. Particularly with something like a screenplay, where the idea and the expression can be closely intertwined, if you think someone has ripped you off then you should talk to an attorney to discuss your options.
Posted by Kelly Blanchard, Seattle, Washington |
Jan 04, 2009
Hi John- I am wondering if a "tag line" can be trademarked... I work for a winery and have a tag line I'd like to trademark so that no one else can use it.. is that possible? Thank you for any advise!
Posted by Susan Anderson, Ridgewood, New York |
Apr 06, 2009
Great article. I'm looking forward to reading Part 2.
- copyright registration
- copyright notice