Copyright First Steps, Part 2: Know Your Rights Under Copyright Law.

In Part 1 of this series, I explained why you are probably a creative artist for the purposes of copyright law and which works you create are covered by the law.

To recap, copyright law covers a broad array of creative works, from family snapshots to fine-art photos, from blog posts to epic novels, and from back-of-the-envelope sketches to artistic masterpieces (not to mention music, software, illustration, and any other original works that are fixed in a tangible medium of expression). While there are some gray-areas in determining whether your particular work is covered, chances are you'll be able to seek the protection of the statute.

In this article, I'll discuss the specific rights that copyright law grants to the author of a creative work and what that author can do with those 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 2: Know what rights you get under copyright law.

Once you’ve determined that your work qualifies for copyright protection, it is important to know what rights you are granted under the statute. First, however, you should know that you, as the author, don’t need to do anything in order to get copyright protection. We’ll discuss registration and notice (and why they are good ideas) in more detail below, but newly created works get legal protection even if you do nothing.

Copyright law grants six specific rights to the authors of creative works; they are in  Section 106  of the copyright statute and include the rights

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
   

That’s it, six rights—and not all of them will apply to any single work. But this is a case of elegance in simplicity, and these six rights combine to grant the copyright holder a broad monopoly over her work. Most of the rights are straightforward, although determining what is a derivative work (essentially an adaptation) can be more complicated. There is also the concept of Moral Rights, covered in section 106A of the statute, but it is beyond the scope of this article.

The statute does include some exceptions to these exclusive rights in sections 107-122 of the act. These exceptions include things like “fair use” and use by libraries. Most of them only apply to specific scenarios, although the “fair use” doctrine is another complicated area and will be the topic of a future posting.

Section 106 grants authors the rights both “to do” and “to authorize” any of the above rights. If you are looking to profit from your creative work, it is important to understand the difference between these actions. Specifically, the “authorization” right enables you to control your work through licensing rather than selling your entire copyright to a third party.

Licensing will be the topic of yet another article, but in most situations a copyright holder should try to retain control by licensing uses of the work for specific purposes instead of selling the work outright.  As a general rule, I urge copyright holders to grant only those rights necessary for your client to achieve his goals with the work, to specifically detail how the section 106 rights are to be used by the client or retained by the author, and to include any appropriate restrictions on each party’s exercise of their rights. Regardless of whether you sell or license your work, however, knowing the six rights covered by the statute will help you make more informed business decisions to benefit you and your customers.

Finally, you must understand your copyright rights in order to understand infringement. Copyright infringement is, by definition, the unauthorized exercise of “any of the exclusive rights of the copyright owner.” Infringement need not be intentional; simply performing one of the acts described in Section 106 will subject an infringer to liability. The extent of that liability depends on the steps that the copyright holder has taken to protect the work.

If you detect infringement of your work, you should take immediate action to ensure that you protect your rights and don't lose your claim to the statute of limitations. While you can contact an infringer directly, it is usually a good idea to consult with a copyright attorney to clarify your legal position and develop an action plan.

In Part 3 (the final article) of this series I'll discuss specific steps you can take to protect your creative works, including including copyright notice and other copyright management information and, most importantly, registering your work with the Copyright Office.

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.