Copyright Basics, for Creators

This article is part of our series on how to run a creator business. In our intro article, we defined creators as those who create content and distribute the content online. Most of this content is protected by copyright. That’s why we think all creators need to have a basic understanding of copyright law. Hence, this article on copyright basics.

We’re going to give a general overview of US copyright law. This article is not legal advice. Instead, we want to give you a good foundation on copyright. This way, when you do hire a lawyer for copyright advice, you can get right to the issue without having to learn basic copyright law.

Copyright law is country-specific. So, US copyright law is different from Canadian copyright law, which is yet different from French copyright law. While the general concepts are similar, if you’re reading this from outside the US, be aware that some of the information in this article won’t be true in your country.

Let’s first start by defining what is a copyright.

What is a Copyright?

Copyright protects original works of authorship. US law defines works of authorship as:

• literary works
• musical works, including any accompanying words
• dramatic works, including any accompanying music
• pantomimes and choreographic works
• pictorial, graphic, and sculptural works
• motion pictures and other audiovisual works
• sound recordings
• architectural works
• boat hull designs
• photomasks for making computer chips

Copyright law also specifically says pure ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries are not copyrightable. But, if you put the idea down in a book, for example, then the book is protectable as a literary work.

Because this article is focused on copyright basics for creators, we won’t go into more details about architectural works, boat hull designs, or photomasks. A typical creator isn’t likely to work in these areas.

An Important Concept in Copyright Basics is You Can Have Several Layers of Copyright

One of the fairly unique concepts in copyright is that you can sometimes have several layers of copyright in one work. In other words, some works include several types of works of authorship.

For example, a music video will have one layer of copyright as an audiovisual work. But the song itself will also have another layer of copyright as a musical work. On top of that, songs have lyrics, and the lyrics have a third copyright as a literary work. Sometimes, if you have an audio engineer who mixes the music as a finishing touch to the music video, they have a copyright in that particular audio recording as well.

So, when you think about copyright, you have to analyze a work very carefully. When you license or assign a work, you don’t want to accidentally leave out a copyright owner.

Some Works Are Not Copyrightable

Sometimes, even when a work falls under one of the works of authorship categories, they’re still not copyrightable.

In the US, a work can be copyrighted if it is:

• an original work
• of authorship that is
• fixed on a tangible medium.

Lots of lawsuits have gone into defining each of these three factors. We’ll explain each factor below.

What is an Original Work?

A work is an original work if you haven’t copied it and you exercised at least a little bit of creativity to come up with it. Just how little creativity is needed depends on the facts. But the threshold can be very low.

Here are some categories that are usually not creative enough to be copyrightable:

• Facts
• Typefaces, fonts, or mere calligraphy (e.g. a logo that’s written in Spencerian script)
• Format and layout
• Works of minimum authorship (e.g. an article where “he” is switched to “she,” touching up a damaged photo to restore it to its original condition, a sound recording of one single tone)
• Words and short phrases (including book titles and character names)
• Mere listing of ingredients or contents (recipes, table of contents of a book)
• Blank forms
• Characters
• Stock characters, settings, or events a/k/a scenes a faire (e.g. pirate treasure in a cave full of snakes)
• Familiar symbols and designs (e.g. stop sign, punctuation)
• Mere variations of coloring

For a full list and more examples, see Sec. 313.4 of the Compendium of US Copyright Office Practices (Compendium).

But, for every rule, there’s an exception. Take, for example, the case of Mr. Ashleigh Brilliant. He managed to convince a court that his aphorisms “I may not be perfect, but parts of me are excellent” and “I have abandoned my search for the truth and am now looking for a good fantasy” can be copyrighted, despite the general rule on words and short phrases. Other examples of copyrightable short phrases include “E.T. phone home,” and “Look!…Up in the sky!…It’s a bird!…It’s a plane…It’s Superman!”

In each of these examples, someone copied without permission. When the copyright owner sued them, the copycat tried to use “not an original work” as a defense. Often, the defense won’t work. Courts often don’t like it when people make money off copyrighted works without paying the copyright owner.

Who can be an Author?

As of right now, only a person can be an author. So, a photo taken by a monkey or a drawing made by a computer program are not copyrightable. For more examples, see Section 313.2 of the Compendium.

Sometimes, a business is called the author of a work. But it is still people who created the work. The people just happened to work for the business. The business becomes an author through actual people.

What is a Tangible Medium?

Lastly, to be copyrightable, the work has to be fixed on a tangible medium. These days, electronic medium is fine. But a live performance, an impromptu speech—unless recorded on video—won’t qualify.

Most, if not all, creators will save their work in some sort of electronic format. So, the works satisfy the tangible medium requirement.

What Are Your Rights as a Copyright Holder?

Basically, when you own a copyright in a work, you have the right to prevent others from copying the work.

In the US, a copyright holder has the right to:

• Reproduce
• Make derivative work
• Distribute the works
• Publicly perform the work
• Publicly display the work
• Transmit audio recordings (e.g. through radio)
• Have the work be attributed to them and have a say in preserving the integrity of the work (moral rights)(This is for very limited types of visual works only.)

You can grant some of these rights to others through a copyright license. You can also sell or give away all your rights through a copyright assignment.

When you license a copyrighted work, you can license each of the rights above piece by piece. Let’s say you make a short film. You only want people to view the video in their homes or on their personal computers. In that case, you give them a limited license to reproduce the work on their TV or computer monitor.

You don’t license them the right to distribute the work, so they can’t make copies and give the copies away. You also don’t license them the right to publicly perform or display the work, so they can’t show it on a big screen in a parking lot for a community movie night.

Derivative Work is an Important Copyright Basics Concept

One of the rights a copyright holder has is the right to make a derivative work. A derivative work is a new layer of copyright based on an existing work. For example, if you take The Mona Lisa and make her into a sculpture, you’ve made a derivative work of the painting.

In our example, The Mona Lisa is not protected by copyright. But your sculpture—the derivative work—does have a layer of copyright protection. Other times, if you base your derivative work on a work still under copyright, then you’ll have to get permission from the copyright owner first, before you can make the derivative work.

There’s one exception on getting permission to make a derivative work—when the use is fair use. We’ll go over this in our more detailed article on fair use. As a creator, you might come across this issue quite a bit, especially if you make fan art.

You Don’t Have to Register Your Work to Get a Copyright

Your copyright rights come into being as soon as you create the work. You don’t have to register it with a country’s copyright agency. This is an important concept in copyright basics.

But, in the US, if you want to sue someone for copyright infringement, you will have to have a copyright registration before you can sue. If you register your copyright before infringement occurs or within 3 months of first publication, you can get statutory damages (which we explain in our how to handle copyright disputes article). If you register your copyright within the first 5 years of publication and you sue someone for infringement, your copyright and the facts on your certificate are presumed to be valid.

As of this writing, the registration fee in the US is between $35-$500. The exact amount depends on the type of work and whether you file electronically or by paper. Here’s the link to the Copyright Office’s fee page, for the most updated costs.

Your Copyright Rights are Recognized Internationally

Your copyright rights are recognized in other countries through a treaty called the Berne Convention. The Berne Convention is a set of minimum requirements related to copyright law. Each country that signs the Bern Convention agrees to enact laws that include these minimum requirements. They can grant more rights if they wish, but they can’t go below the minimum. So, the actual rights granted can vary quite a bit from country to country.

The best example of different scope of copyright rights is in something called moral rights. This is the right of an artist to not have their work changed, altered, distorted, or mutilated. It also includes a right of attribution. The Berne Convention requires every signatory country to recognize moral rights.

In France, moral rights is very broad. This fits France’s reputation as a country of artists. It is one of the first countries in the world to recognize this right. But in the US, the right is very narrow. It is limited only to visual works that exist in a single copy or in signed limited editions of 200 copies or less.

The first version of the Berne Convention was signed in 1886 by several European countries. Right now, there are 179 countries that are signatories to the convention. The US didn’t become a signatory until 1988.

How Long Does a Copyright Last?

Copyright is a right limited by time. In the US, works created after 1978 last for the lifetime of the author plus 70 years. For anonymous works, pseudonymous works, and works made for hire, the copyright lasts 95 years from the year of first publication or 120 years from the year of creation, whichever comes first.

In other countries, the copyright term can be lifetime of author plus 50 years or as short as 25 years, depending on the type of work. This is the minimum set out in the Berne Convention.

The copyright term can get complicated. Here’s a list of copyright terms by country, if you need to look it up.

Understanding the Copyright Basics Concept of Work Made for Hire

In the section above, we said that works made for hire lasts 95 years from the year of first publication or 120 years from the year of creation. So, what is a work made for hire?

We know that, in order for a work to be copyrightable, the work has to have an author. Most of the time, the author is a person. Sometimes, though, the author can be a business.

Businesses can create copyrightable works through their employees or through independent contractors. When an employee creates a copyrightable work as a part of their job, then this is a work made for hire. When an independent contractor creates a copyrightable work and there’s a written contract that says the work is to be considered a work made for hire, then the work is a work made for hire if the work is a:

• Contribution to a collective work
• Part of a motion picture or other audiovisual work
• Translation
• Supplementary work (e.g. illustration in a book, a foreword, an afterword)
• Compilation
• Instructional text
• Test
• Answer material to a test
• Atlas

If the work you hired a contractor to create isn’t on this list, then the work isn’t a work made for hire. Your only solution is to have the contractor assign the copyright to you.

Works made for hire is a part of US copyright law. Specifically, it’s found in Section 101 of the Copyright Act. Here’s a very helpful circular from the Copyright Office explaining works made for hire. (Scroll down to Circular 30.)

As a creator, works made for hire can be important to you. You might need to hire other creators to help you create your work. Or you might be hired to create a work.

If you’re hired to create a work but there’s no contract, then you’re the copyright owner of the work. For the business that hired you to own the work, you’ll have to assign it to them.

Creators Often Collaborate and Make Works of Joint Authorship

The last concept in copyright basics we’ll cover is the concept of a work of joint authorship. Joint authorships happen a lot because creators like to collaborate. You can collaborate in a book, in a song, in a performance (sing a duet), or even in a two-person comedy routine.

Authors of joint works are co-owners of the work. Each joint owner can modify the work without the others’ consent. Either joint author can license a copyrighted work without getting the other author’s permission. But they have a duty to share the fees from the license.

The copyright in a joint work lasts until the lifetime of the last living author plus 70 years. Either joint owner has the right to sue someone for infringement. However, either joint owner can also sell the co-ownership of their work. So, the usual trick if you’re sued by a co-owner for copyright infringement is to buy the rights from another co-owner.

Authors’ rights in a joint work can get pretty messy. The way to avoid the mess is to have an agreement setting out the rights of each co-owner, what they each can and cannot do, and how to account the licensing fees to each other.

There’s Much More to Copyright Law Than This Copyright Basics Article Can Present

When we say we’re only presenting copyright basics in this article, we really mean it. This article is fairly long, but we’ve only scratched the surface of copyright law. Our goal is for this article to give you enough information to know when to ask a more detailed question to a copyright lawyer.

In our next article, we’ll go into probably the most popular subject related to copyright—fair use:

Copyright Fair Use, Exceptions, and Exemptions, for Creators

Interested in starting and running a small business? Here’s the beginning of our step-by-step guide: What to do right after getting that great business idea.

DISCLAIMER: This article does not constitute legal or accounting advice. Instead, it contains general information. The information gives you the background you’ll need to hit the ground running when you do go get advice from a lawyer or accountant. Only lawyers and accountants properly licensed in your state/country are qualified to give you legal or accounting advice.