A Copyright is the right to determine how your copyrighted creative materials can be used, distributed, sold, or otherwise interacted with. A copyright is a very broad right to control your copyrighted materials.
A copyright is automatically and immediately formed when you create something creative. Let’s break this down:
- Automatically: This means that there is no extra step to copyright something. You do not need to put the copyright symbol at the bottom or notarize your document.
- Immediately: There is no lag time between putting your pen or brush to paper and when a copyright exists.
- Formed: When you create a copyrightable work, the copyright is formed at the same time.
- You: You must be the one to create the work, nor someone else. There are some exceptions, like work product exception where employees and independent contractors may create something for you that results in your copyright ownership.
- Create: It must be tangible and not just an idea. If you go into a bar and spout out a great idea for the next blockbuster movie, you do not have a copyright, unless you recorded your performance. Even in the case of you recording your performance, your copyright would not be on the idea of the story.
- Creative: The work of art must be creative. Merely functional inventions are not copyrightable, nor are things that involved no stretch of your mind. Additionally, it must be your creativity, not someone else’s.
What to do with a Copyright
Since you automatically have a copyright, you need to know what you can do with it. With a copyright, you have every single right from the start. It is up to you to give away any of those rights to other people. Typically, this is done through licenses. A license gives another person certain rights to use the copyrighted material. Your license will have many different variables, many of which follow:
- Revocable vs Non-revocable: This determines whether or not you have the right to revoke a license you provided to someone else. It can be revocable only on the meeting of certain conditions, such as if the licensee goes into bankruptcy.
- Transferable vs Non-transferable: If you do not want your licensee to transfer the license, you would make the license non-transferable.
- Exclusive vs Non-exclusive: An exclusive license means that you’re giving the licensee the exclusive right to use your material within whatever limitations you set. The limitations can be geographical, time, industry, personal versus commercial, and more. An exclusive license takes away from your own ability to use the copyrighted material. For example, if you give someone the exclusive license to use your video in Germany, you cannot publish the video in Germany, but you’d be able to publish in other countries.
- Royalties: It is your choice whether to charge royalties to use your content and how those royalties are charged. You can choose a one-time fee, per usage fee, or some combination of the two.
Preserving Your Rights
In order to ensure that you maintain your copyright, you’ll need to be careful not to give away your rights. You can give away your rights through licensing, as discussed above.
You can also give away your rights by not enforcing your rights when they are violated. When others use your copyrighted material, they’re claiming they have the right to use it. If you don’t take appropriate steps to step in and try to preserve your right, you may end up losing it. Copyrights are hard to lose in this fashion, but it can still happen.
The third major way you can lose your copyright is by releasing it into the public domain. Once you release something into the public domain, you cannot get it back.
Public domain does not mean publicly accessible, like the internet. Public domain is a type of copyright ownership, meaning that the copyright belongs to the public. The most common way something enters into public domain is the expiration of the copyright. This is why classical music is available without license for all to use. You can also release something into public domain by declaring that it is now public domain. Since the copyright is yours to give, you’re allowed to do that.
Note: Posting something on social media does not make something public domain. I repeat, just by posting on the internet does not mean you are forfeiting your copyright to public domain.
Fair Use is a doctrine of law that developed to allow others to use small portions of copyrighted work without attribution or royalty. This allows individuals and companies to use small portions of a copyrighted work. There is no bright line rule on what constitutes Fair Use. However, the smaller the portion and the less critical it is to the creative work as a whole, the more likely the borrowed content is being used under Fair Use.
The courts look at the following criteria to determine whether something fits Fair Use:
- Purpose and Character
- Nature of the Copied Work
- Amount and Substantiality
- Effect Upon Work’s Value
- Industry Practices
The doctrine of Fair Use is far more complicated than this article can get into, so we will save that for another article.
One of the best ways to help protect your copyright is by registering it with the US Copyright Office. Registration provides you with statutory damages and attorney fees if you’re successful in your suit against an infringer. You also get the presumption that you were the first to create the content. This is valuable!
Law++ handles copyright registrations as well as enforcement of your copyrights. We have a suite of services available for copyright holders who want strong protection. For more information, please feel free to contact us to set up a consultation at firstname.lastname@example.org or by calling (919) 912-9640.