This is the final installment of a four-part series on the basics of intellectual property law. The goal of this series is to provide individuals and business owners with a primer on the different types of intellectual property in the United States, including patents, trade secrets, trademarks and copyrights. The previous posts in the series include the introduction, a discussion of patents and trade secrets and trademarks.
Copyright can be a tricky subject, but having an understanding of a few general rules can go a long way. Let’s start with a hypothetical:
In May, I went to Colorado to visit my friend Andrew. We went on a hiking trip with a few other friends and Andrew’s dog, Bear. Andrew has trained Bear well to out-hike us all, and to look good doing it. Sensing a great photo opportunity, Bear sat stoically on a rock with a backdrop of the Rocky Mountains. Andrew hands me his iPhone, and I take the following photo:
Bear the Magnificent.
Who owns this photo? Andrew? Me? Bear? Read on to find out how copyright law applies to this photo and certain other creative works.
Copyright protects original works of authorship
Copyrightable material is defined by the Copyright Act of 1976 as “original works of authorship” which include literary, dramatic, musical, artistic and certain other intellectual works. Copyright exists automatically when the work is “fixed in a tangible medium of expression,” which means as soon as the words are written on a page (or saved), or an audio or video is recorded, the author receives copyright protection.
Off the top of my head, here are a few examples of famous copyrighted materials: the sound recording and music video for “Sorry” by Justin Bieber, the Disney Pixar film “Finding Dory”, and each book in the Harry Potter series by J. K. Rowling.
The Copyright Act grants the owner of the copyright certain exclusive rights, including the right to:
- reproduce the work in copies
- prepare derivative works based upon the work
- distribute copies of the work to the public by sale or other
- transfer of ownership, or by rental, lease, or lending
- perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, and motion pictures and other audiovisual works
- display the work publicly, in the case of literary, musical, dramatic, and choreographic works, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
- perform the work publicly in the case of sound recordings by means of a digital audio transmission
These rights may be transferred or licensed to other parties as the copyright owner sees fit. Determining the owner for copyright purposes can be a bit tricky. As a general matter, the owner is the author of the work. However, if the work constitutes a work made for hire, the owner may be the author’s employer. For example, copyright in the text of this blog post is owned by Russell, Krafft & Gruber, LLP, as conveniently discussed in my post titled: Who Owns This Blog Post?
What about the above photo of Bear from our hypothetical? Even though I used Andrew’s iPhone to take the picture, I am the sole owner of the photo of Bear since I am the author. As I pressed the shutter button and the photo was saved to the phone’s memory, ownership of the image was automatically granted to me by law. Bear is incapable of owning any rights in the photo since he’s considered property by law. For an interesting discussion of that issue, check out this article from NPR: Monkey Can’t Own Copyright To His Selfie, Federal Judge Says
This selfie is in the public domain, and thus free to use by anyone for any purpose, since there is no author to grant copyright to.
The duration of copyright is limited – for works created after 1978, the typical duration is the life of the author plus 70 years. So, unless I transfer the rights to my photo of Bear, I have copyright for as long as I live, and thereafter my estate or designated transferee will own the copyright for an additional 70 years.
Registration is not required, however if you register the copyright with the United States Copyright Office prior to infringement of the copyright, you get the right to sue to enforce your rights and have the possibility of collecting enhanced damages against an infringer.
A limitation to the above exclusive rights of the copyright owner is known as the fair use doctrine, which allows certain types of use including for the purpose of criticism, comment, news reporting, teaching, scholarship and research. The fair use analysis is complicated, but the following four factors are considered when determining whether a particular use is permissible:
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use upon the potential market for or value of the copyrighted work.
I discussed some of the pitfalls of unauthorized use of photos and other copyrightable material in this post from earlier this year: Proper Use of Images Online. As a general rule, if you haven’t paid the copyright owner for the right to use a particular work and you haven’t created it yourself, you could be liable for copyright infringement.