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Maybe you’ve written an article or screenplay and want to submit it without fear that it will be used without your permission. Or you’re a struggling artist who hears someone else score a hit with a song you wrote. Or if you’re lucky, you’re a popular artist who learns that a politician you find abhorrent is using your song. In this article, we discusses how copyright can protect you with Jeffrey Gitchel.

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Mr. Gitchel explains that intellectual property, broadly speaking, protects the valuable creations of the mind, including articles and songs. There are three types of intellectual property: patents, copyrights and trademarks. He says that only nine words can provide an oversimplied explanation of these different types of intellectual property - “patents protect inventions, copyrights protect art, trademarks protect brands.” This is an oversimplification, he emphasizes, but it is useful for quickly getting your mind around the concepts.

The “art” that is protected by copyright law is very broad, and includes not only creations that are traditionally considered art, such as paintings, novels, or music, but also such unartistic things as technical articles, architectural drawings, and computer code. To qualify for copyright protection, a work has to be “original” and “fixed in a tangible medium”.

Originality means that the work involves some minimal amount of creativity - it cannot be a copy, merely information gathered through hard work or an uncreative work (such as a basic drawing, like a minimally stylized square).

Fixation is more straightforward. A digital copy is considered a form of fixation, so copyright covers writing on a computer (including code) and a camera picture. Music can be a little tricky, because there is no fixation when merely performing a new song - it needs to be recorded by the artist or notated.

Copyright does not protect brief phrases or titles, no matter how creative they may seem. It also does not protect ideas, only the fixed expression of ideas.

Copyright law grants copyright owners a variety of controls over their works. The name copyright indicates the most obvious control - the right of reproduction. The copyright owner alone has control over the copying or reproduction of the copyrighted work. Although reproduction is the most obvious control, Mr. Gitchel said that it is far from the only right protected by copyright. Copyright law also protects the rights to distribute a work, and to display or perform the work. It also protects the right to create derivative works. A derivative work is a work that directly relies on a previous work, such as a translation or a sequel.

These rights belong to the copyright owner, who is often originally the author or creator of the work. Everyone else must obtain permission from the owner. If they don’t have permission, they violate the copyright owner’s rights and infringe the copyright.

Proper Use of a Copyrighted Work

Getting permission to use a copyrighted work is also called getting a copyright license. For example, consumers never actually buy software (which is a copyrighted work); they only buy a license that allows them to copy the software onto their computer and use it.

Mr. Gitchel stressed that licenses may impose conditions on use. For example, much open source code can be licensed for free, but some licenses require that any software that incorporates the code must be made available on the same terms (that is, for free). Software designers who want to create proprietary software will want to avoid using such code.

Creative Commons has several standard licenses that may serve the needs of many copyright owners and have become quite popular.

Copyright protects a work as soon as it is created, regardless of whether the copyright is registered. This means that the copyright owner can send a letter demanding an end to infringement even if the copyright is not registered. Indeed, many infringement disputes are resolved based on no more than a letter. The copyright owner can also use the © copyright notice without registering the copyright, but under current law protects a work even without such notice.

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Although copyright registration is not necessary to protect a work, Mr. Gitchel said registration does provide benefits, particularly in litigation, and is relatively inexpensive.

First, a copyright registration is required to bring a lawsuit to enforce the copyright. Fortunately, the copyright can be registered just days before the lawsuit, if necessary, though that expedited process is more expensive. Regardless of when the copyright is registered, the registration is a necessary prerequisite.

In these suits, the copyright owner can obtain an injunction ordering the infringement to end and recover any actual damages. Actual damages are often difficult to show, however. So while such lawsuits are possible, they may be unsatisfying and prohibitively expensive.This is where the second benefit to registration can come into play. If the copyright is registered before the infringement begins, then the copyright owner can opt to receive statutory damages of $750-$30,000 per work infringed (the upper limit rises to $150,000 in the case of willful infringement) instead of actual damages. The copyright owner can also seek attorney’s fees. In other words, the infringer would have to pay the copyright owner’s attorney.

The threat of statutory damages and attorney’s fees often makes a letter enforcing a copyright more effective.

Because copyright attaches to so many works, it can be difficult to reproduce a work without infringing the copyright. For example, works that are in the “public domain” are not protected by copyright because the copyright has expired, but the public domain consists primarily of very old works. A copyright does not last forever. Under current law, the term of copyright is either (a) the life of the author plus 70 years or (b) 95 years from publication or 120 years from creation, whichever expires first. The term length speaks to the challenges of avoiding copyright infringement - only works created before 1923 can be said to be definitively in the public domain without further investigation (and even then, there are a few exceptions that are beyond the scope of this article).

Fair use also allows unlicensed reproduction of a copyrighted work, but fair use is an unreliable ally. Fair use is assessed based on a consideration of the following four factors:

  • The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes - Fair use is more likely to be found is the use is for nonprofit educational or non-commerical purposes and if the use is “transformative”, meaning that the use adds something new and is not simply a substitute for the original.
  • The nature of the copyrighted work - Fair use is more likely to be found when the work is factual (like a news article) rather than creative (like a novel or song)
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole - Fair use is more likely when only a small portion of a work is used, though even one paragraph from a book can be infringement and reproducing a whole work can be fair use.
  • The effect of the use upon the potential market for or value of the copyrighted work - One of the reasons for copyright law is to encourage the sharing of works by allow the copyright owner to profit from the work. Fair use is more likely when it does not interfere with this goal, even if the non-licensed use does not generate any independent revenue.

These factors are assessed on a case by case basis, and courts are allowed to consider other factors, as well, depending on the circumstances. If it sounds like fair use is unpredictable, that’s because it is. Mr. Gitchel explained that it is a fact specific assessment and there is no formula, like using a particular number of words or lines or percentage of a work, that ensures that a use is fair. Seek assistance from a copyright lawyer when you are concerned about how fair use applies to your situation.

Jeffrey Gitchel is a seasoned attorney with 20 years of experience handling a diverse array of civil and corporate matters. He began his practice with K&L Gates before moving to Bayer Corporation, where he served as Senior Counsel.