If you make a short film that includes someone singing “Happy Birthday to You,” until recently you could expect to pay a hefty licensing fee to Warner Music Group – or a heftier fine, if you used it without permission. A class action suit is currently trying to change that.
Once, this decision would have only concerned those involved in the professional production of film, TV or theater. These days, it concerns anyone with a YouTube, Vimeo or Vine account.
The Internet, along with the social media networks built on it, has created a plethora of opportunities for those who create video, music, photographs and writing to publish their work in formats with the potential for wide distribution. While only a fraction of us want to earn our living solely through the works we create, and only a small subset of that group succeeds, copyright questions have suddenly become important to many of us who would never have otherwise considered them.
First, a basic definition: What is copyright, in layman’s terms? In the United States, copyright law extends certain protections for published and unpublished “works of authorship.” This covers a variety of forms of expression, some of which are obvious – books, movies, songs – and some of which are not as well known outside their professional fields – computer code, software, architectural design. The deciding factor is that the work must be fixed in a “tangible mode of expression.” Choreography that has not been notated or recorded, for example, cannot be copyrighted until it is fixed in a durable medium. You can’t copyright ideas.
This requirement is one of the factors that distinguish copyright protection from the protection extended by a patent or a trademark. A patent is meant to cover an invention or a discovery in the abstract, rather than a concrete expression of an idea. For example, there is a current legal debate over whether the idea of podcasting – a broadcast available on demand – has been legally patented and by whom; meanwhile, most individual podcasts are indisputably protected by copyright. This protection is unrelated to the patent debate. Both patents and copyright are matters of federal law.
Trademarks, on the other hand, are words, phrases or designs used to distinguish the goods of one party from those of others. (Service marks are more or less the same, but distinguish the providers of services; the term “trademark” is often used conversationally to cover service marks as well.) An artistic design is automatically protected by copyright, but can also be trademarked, which offers overlapping, but not identical, legal protection. While federal trademark law exists, the majority of trademark law functions at the state level.
One of the major differences between copyright and patents or trademarks is that you have to file to receive either of the latter two. In contrast, copyright protection automatically extends to any work that is eligible from the moment of the work’s creation. Creators can, however, voluntarily register their work with the U.S. Copyright Office. While this step is not required for copyright protection, it does confer several benefits. It makes the copyright a matter of public record and grants a concrete certificate of registration to the copyright holder. It is also necessary to register a copyright before taking any legal action against those violating it; it is generally easier and more effective to register before there is any dispute about the identity of the true copyright holder.
For those who wish to register, the U.S. Copyright Office provides the forms online; registration can be completed electronically or by mail. Registration involves an application form, a nominal but nonrefundable filing fee and a nonreturnable copy of the work being registered. It is generally simple enough for a layperson to prepare without help from an attorney. The application must be filed by the copyright claimant, who is either the author of the work or the author’s employer (if the work was created for hire); the owner of the exclusive rights to the copyright, if the claimant has sold or granted them to another party; or the legal representative of the claimant (such as someone who holds the author’s power of attorney).
In the past, people would sometimes mail their work to themselves, in what was known as a “poor man’s copyright,” in order to protect unpublished works. However, under current copyright law, this is unnecessary for copyright protection and doesn’t substitute for copyright registration, so it serves no real purpose. Since 1989, creators have not been required to include a copyright symbol (©) with their copyrighted work. Voluntarily including it, however, can cut down on later claims of copyright infringement through ignorance.
It’s important to remember that a work’s copyright, registered or otherwise, is not without limits. One such limit is time. For works that were created on or after January 1, 1978, the copyright automatically extends for the author’s life plus 70 additional years. If more than one author created the work, the term is 70 years past the last surviving author’s death. If the work was made for hire, or the author is unknown, the copyright extends for the shorter of 95 years from publication or 120 years from creation. (The rules vary for works created before 1978.) After the term of copyright expires, works enter the public domain, meaning anyone may freely use them without prior permission.
There are some instances in which people are also free to use works that are still under copyright, under what is called the “fair use” doctrine. If you are the copyright holder, many rights to the work are exclusive to you. This includes most instances of reproduction (i.e. copying), but there are cases in which someone may copy your work without your permission. Whether or not a particular case is fair use is usually determined by a combination of four factors:
- Whether the use is commercial in nature or intended for non-profit or educational benefit;
- The nature of the work being copied;
- The amount of the work being copied in relation to the size of the work as a whole; and
- The effect upon the market value of the original work.
There are no hard and fast rules as to when a particular use is in violation. For example, there is no maximum number of lines of print or seconds of a recording that will automatically qualify use as unlawful. Acknowledging an author by name does not substitute for obtaining actual permission to use a work. The courts, however, have established that certain uses, such as a teacher reproducing a work for use in a lesson or a brief quotation appearing in a journalistic article, are almost always legal.
Some creators also waive some of their automatic copyright protections. They may do this for a variety of reasons. Certain creators waive some of their rights as copyright holders deliberately, either for ideological reasons or in order to promote their work. Some authors feel that The Copyright Act of 1976, which remains the basis for most U.S. copyright law, is too restrictive and overprotects existing works to the detriment of new ones. They choose to waive rights as a way of leveling the playing field. Other creators simply want to make it easier for their fans or followers to redistribute their work, as a means of garnering publicity and making their voices heard. Creative Commons, a non-profit organization, is one of the most prominent organizations working to allow creators to legally waive certain rights while retaining others.
Instagram is not an exception. Sites like Facebook, Twitter and Pinterest also specify similar licensing arrangements in their terms of service for anything you post to which you hold the copyright. Yahoo!’s photo-sharing site, Flickr, allows you to set the default licenses on your photos from full protection (regular copyright) through “no rights reserved,” but also specifies that users grant Yahoo! a royalty-free license to use the content on its own site unless and until they remove the images. While social media services generally incorporate such licenses mainly to allow their operations to function, it’s important to realize that by sharing a photo on Facebook or Twitter, you are voluntarily waiving some of your copyright protection to the image. You should keep an eye on any changes in terms of service for sites you currently use and carefully review the terms of service when signing up with a new platform.
What if you have created something from which you wish to profit directly? As a copyright holder, you are free to reproduce, perform or display the work as you like and charge for doing so. A person buying a copy of the work does not affect your copyright; you don’t, for example, have any right to a book just because you purchased a hardback copy. If you record an original song, you can sell as many copies of that song as you like without damaging your copyright in any way.
Another method for profiting on your work is via advertising revenue. This is a bit more complicated, and the details are beyond the scope of this article. However, programs such as the YouTube Partners program or Google’s AdSense for Blogger allow you to earn revenue in exchange for pairing your original content (such as videos or blog posts) with third-party advertisements. As the owner of your content, you have the option to profit this way if you so choose.
If you create something that fills a need or becomes popular, you can also consider selling licenses to others who wish to use your work. They might wish to use it in a derivative work – for example, playing the song you wrote and performed over the credits of their film or setting a poem you published to their own music. Or they might simply wish to distribute your work, such as showing a film you made at their independent theater. Depending on what they want to do with the work and your own preferences, they may only need to obtain your explicit permission, or they may need to pay you (a one-time fee, a recurring fee or residuals). You can limit your permission to use the work for a certain time or in a certain way. There are no legal requirements for this sort of agreement; it’s up to the two parties to work out an arrangement that suits them both.
If you plan to license your work, you should definitely register with the Copyright Office in order to protect yourself. Given the potential complexity involved, if you choose to license your work, it may be best to involve an attorney who specializes in intellectual property. The attorney can help you draft a license or license template that reflects your intentions. Even if you do not seek professional advice, you should formulate your agreements in writing so that both you and the licensee are clear on the terms before there is any exchange of your work. While it is possible to transfer a copyright altogether, it is probably best to think long and hard before doing so, since you would give up all future right to the work.
What happens if someone uses your work without your permission? As long as you have registered your work with the Copyright Office and believe the instance does not fall under fair use, you can choose to pursue the infringer in civil court. However, before you do, it is important to consider whether it is worth the time and legal fees you may incur. There is a difference between someone selling a book that mostly plagiarizes your words and a teenager posting a photo you shared on Instagram on her blog without crediting you, though both are technically infringement. You are unlikely to be awarded much, if anything, in the way of damages for the latter.
Before pursuing legal action, you may consider contacting the infringer to inform them of their infringement and ask them to stop using the work. If they are sharing the work through an Internet service, you can also contact the website to let them know the user is in violation of copyright. This often violates a website’s terms of service, and the company may take action accordingly. If the infringement is serious enough to warrant litigation, it is wise to seek legal counsel before making contact or filing a complaint with the government. (The FBI is responsible for pursing intellectual property violations.)
Copyright is complicated, but U.S. law is generally on the creator’s side. In a world in which we share our thoughts and images freely, taking the time to know your own rights can keep you and your work protected.