Copyright is Not a Verb

You've probably heard people say things like "That photograph is copyrighted" or that someone is "copyrighting" something or other. Technically, this is wrong because "copyright" is a noun, not a verb.

  • Copyright isn't an action that you do
  • Copyright is a thing that you own (or don't own, as the case may be!)

(Actually, copyright isn't just a thing it's several things — a collection of various rights that can be assigned or sold separately by the owner — but we'll get into that later.)

You can't really "copyright" a photograph, but you can own the copyright to it.

When someone says they have have "copyrighted" something what they really mean (usually) is that they have registered their copyright with the official agency of their country. In the U.S. it's the United States Copyright Office.

The reality is that this misuse of the word "copyright" has passed into common use and is so widespread that even lawyers often do it these days. But I want to emphasize the distinction because it helps clarify some issues and misunderstandings that come up frequently.

Next we'll look at a few other common misconceptions about copyright...

Protecting Yourself with Copyright

Protecting yourself and your work with copyright is more important than ever. And, with the United States Copyright Office web page, it's easier and cheaper than ever.

First, let's clear up a few common misconceptions:

• You don't have to put "Copyright" or the © symbol on your work to get copyright protection.

• If you do put "Copyright" or the © symbol on your work it doesn't give you any extra rights.

(Though if you put "Copyright" or the © symbol on your work and an infringer removes it, you might be able to get extra damages if you sue.)

• It makes no difference whether in infringer is making money from the copyright infringement.

• It makes no difference if the infringer didn't know your work was copyright-protected (you can – and should – assume that everything you see on the web is protected by copyright).

How Do You Come to Own a Copyright?

OK, so if a copyright is a thing, how do you get one? If you're the author of a creative work like a painting, drawing, photograph, novel, poem, etc... how do you get to be the owner of copyright for that work? The answer is that, in the U.S. (and any country that's a signatory of the Berne Convention):

You become the copyright owner at the moment of creation, automatically, without any action required on your part.

That's right. You are already the copyright owner of every paper you've ever written in college and every crayon drawing you made in kindergarten.

The exception to this instant ownership of copyright comes under the "work for hire" classification: Generally, if you create something at work, for your employer as part of your job, the employer owns the copyright. What if you're not an employee but a contract worker? Read your contract... Very, very carefully.

But as we shall see, simply being the owner of copyright doesn't necessarily do you any good...

So Why Register a Copyright?

So if you own the copyright to all your creative works automatically, why go to the extra trouble and expense of registering your copyright? Because just owning a copyright doesn't buy you much if someone out there infringes it (steals your work). Here are the major things registering your copyright buys you:

  • The right to sue for copyright infringement (you can't sue at all if your copyright isn't registered)
  • The right to compensatory damages (what you would have charged if you'd sold the work)
  • The right to statutory damages (punishment the copyright infringer can be made to pay)
  • The right to lawyer's fees (yes, the copyright infringer can be made to pay your lawyer for suing him!)

But you can't get any of that if your copyright isn't registered.

Make a special note of that first item, the right to sue — to go to court over a copyright infringement. Copyright is federal law. You can't take a copyright case to state or local court; your first stop is Federal District Court and they will not hear your case if you haven't registered your copyright.

What Does Copyright Cover?

There are four basic rights that are protected by copyright:

  • Display/Performance
  • Reproduction
  • Distribution
  • Modification

Display/Performance — Performance obviously covers things like plays and musical compositions. But Display covers visual and literary works. If you become a famous writer and write someone a letter, for example, they own the letter itself but not the copyright to that letter: Not only can they not reproduce it and sell it, they can't put it on display and charge people to see it.

Reproduction — This is what everyone thinks of when they think about copyright: Copying. As copyright owner you have the exclusive right to decide how and how much your work is reproduced.

Distribution — As copyright owner, you get to decide how and where your work (or copies) are used. Only on TV. Only on the web. Just within a certain time period. Only in certain states, countries or other geographical areas.

Modification — Modification creates so-called "derivative works". That means that no one can use your work as part of their work without your permission.

You can assign (sell) other people various combinations and subsets of any or all of these rights. You can let people have some rights (and specifically spell out your terms) and not others. When you see the term "all rights reserved" in conjunction with a copyright symbol (© ), it means that the author is not permitting (without getting paid!) any of these rights to pass to others.

What if Someone Infringes My Copyright and I Haven't Registered?

In many cases, the answer is "stamp your feet and yell a lot", and that's about it. But sometimes there are other possibilities.

Register Immediately

Technically, you have 90 days from date of publication to register your copyright. If you catch the infringer within that time you might be able to register your copyright and proceed from there.

File a DMCA Takedown

The Digital Millennium Copyright Act is controversial to put it mildly, but it does have its good points. If the infringement is on Facebook, YouTube, Flickr, etc., you should contact the site owner. If it's a private web page you should contact the company that hosts the site. This will usually get the content removed immediately (the DMCA works on a "guilty until proven innocent" premise, which is one of the reasons it can be so evil). You won't get any money but you'll feel better.

Send the Infringer a Bill

Sometimes just sending a bill results in... the bill being paid. If the infringer is a big business they may decide it's cheaper than going to court (especially if they don't know you haven't registered your copyright). As mentioned earlier, copyright is always a federal matter: You can not pursue an infringement in local or state court; you must file in Federal District court and you can only do that if you've registered your copyright. But if the infringer is local to you you might be able to take them to court for not paying a bill! Small Claims Court is cheap. It can't hurt to try.

What About "Fair Use"?

Copyright law, at least here in the U.S. makes exceptions for what is called "Fair Use". In other words, violation of copyright for specific purposes in specific circumstances:

• Criticism/Commentary (book reviews and such)

• Educational/Classroom Use

• Parody

Fair Use is one of the most misunderstood aspects of copyright law. Some people seem to think that it means any use of copyright-protected material that "seems fair" is OK. Or that it's Fair Use if you give credit to the copyright owner. Or if you aren't making money from it. Or that all non-profit use is Fair Use. All of these notions are wrong.

Here are the two most important things you should know about Fair Use:

• It applies almost exclusively to short/small excerpts of a work.

• It's an Affirmative Defense — which means the defendant has to assume the burden of proof.

If someone uses your work and claims Fair Use, you can still sue for copyright infringement. And they will have to prove to the judge that it's Fair Use. The law is broadly written and judges are permitted a lot of discretion. And the balance is tilted greatly in favor of the copyright owner most of the time.

For more, see the Wikipedia article on Fair Use.

What Does "Public Domain" Mean?

A work that is in the Public Domain is one for which the copyright isn't owned by anyone. It's public and anyone can use/copy/modify it.

So how can you tell if a work is in the Public Domain? The surest test is very simple: If it doesn't specifically say "Public Domain" it isn't. Lack of a copyright symbol or statement doesn't mean anything.

Unless it's deliberately sold or given away, copyright lasts for the lifetime of its creator plus 70 years. You can't "accidentally" make your work Public Domain and neither can anyone else. In general you have to deliberately declare it public... or just die and wait 70 years :)

Project Gutenberg, by the way, has made a campaign out of publishing books whose copyrights have expired and are now in the Public Domain. They publish them as ebooks and they're free! It's a very cool project.

Can I Share My Work Without Losing Copyright?

Oh yes indeed. What you want to do is called Creative Commons licensing.

Many artists want so share their work with other artists and the public at large without making them Public Domain. This can be done by specifying what terms you will allow for others to use your work. Creative Commons was founded to promote and organize this concept so that artists and others can know that they're giving and getting.

There are a variety of Creative Commons licenses. Most stipulate that use must be of a non-commercial nature, but some do allow commercial use It's entirely up to the copyright owner which, if any, Creative Commons license they want to use with any particular work.

The Flickr photo-sharing web site has a Creative Commons section that allows you to search for images available under different licenses. You can even fine images licensed for free commercial use there. A very valuable resource if you're working on a limited budget!

WARNING! Copyright is just one issue you have to address when using photos for commercial work: If there are any recognizable people in the image you must obtain signed model releases from them. Failure to do so could result in a lawsuit! It won't be a copyright lawsuit, but it could be just as expensive!

Even if you choose to offer some form of Creative Commons licensing, it's still important for you to actually register your work with the copyright office in order to get full protection.

Guidelines for Using Other People's Material

As we saw in the first part of this presentation, there are companies like Righthaven that make their living from suing people for copyright infringement. If you have a blog or web site, your best line of defense is to not use anything to which you don't own copyright yourself. Remember, Fair Use is an affirmative defense, so if you're sued you'll have to go to court and prove your case. If you do use other material – photos, graphics or text – that isn't yours here are the guidelines:

  1. Assume that everything you find on the web protected by copyright
  2. Find out for certain who the copyright owner is
  3. Find out the copyright owner's stated policies for usage
  4. If the owner's policies aren't stated on their web site or print materials, email them and ask
  5. If you can't find out the copyright owner's policies don't use their material
  6. If the copyright owner's policies don't explicitly permit your usage don't use their material

Keep in mind, the poorer you are the more attractive you are to lawsuits by companies like Righthaven because you have less ability to fight back in court. They will often settle out of court for $1000–$5000.00, whereas taking a case to Federal court (and all copyright cases are by definition Federal matters in the U.S.) can easily run up legal bills of $10,000. So even if you claim Fair Use and win you'll be out ten grand.

When using others' work for commercial purposes, remember that you also have the issue of getting model releases for any recognizable people in images.

So How Do I Register My Own Copyright?

Ah, for that, we need to go to the next page...

End of this section Next: Registering Your Copyright