Intellectual property is a blanket term for multiple areas of law that govern the ownership and rights to "products of the mind." Many, but not all, intellectual property laws seek to encourage innovation and creativity, with an ultimate aim of promoting a general benefit to society. They typically do so by granting a bundle of rights to the originator of the work or creation. Intellectual property encompasses four areas of law, each of which governs creations of different types and promotes different policies:
Copyright:
Copyright law protects the fruits of creative efforts, called "original
works of authorship" in legal terminology. A copyright owner enjoys the
exclusive right to reproduce the work, distribute it, display or
perform it, and to create derivative works from it, as well as the
ability to transfer any or all of these rights. Copyright protection
generally lasts for seventy years beyond the death of the original
author. Copyright's purpose is to stimulate the production of creative works by giving authors a financial incentive to create
new works. Examples of copyrightable works include blog posts, photographs, videos,
podcasts, news articles, musical
compositions, and computer software. See the Copyright section in this guide for more information.
Trademark: Trademark law creates usage rights in words, phrases, symbols, and other indicators that identify the source or sponsorship of goods or services. The owner of a valid trademark can stop others from using its trademark or a similar mark in connection with similar goods and services. The owner of a famous trademark may also stop others from using it in connection with dissimilar goods or services. The main purpose of trademark law is to protect consumers from confusion about the source of a particular good or service, and a secondary purpose is to protect companies that have spent time, effort, and money to create a positive association between their trademarks and their goods and services. Examples of trademarks include the word "Cheerios" for breakfast cereal, the Apple logo for computers, and YouTube's slogan "Broadcast Yourself" for video-hosting services. See the Trademark section in this guide for more information.
Trade Secrets: Trade secrets law protects secret information that a company or other organization creates or compiles to give it an economic advantage over its competitors. A trade secret owner can stop others from acquiring its trade secret through improper means, such as theft, trespass, hacking, or breach of a confidentiality agreement, or from disclosing it to others under certain circumstances. Trade secrets law is aimed at encouraging research and innovation and maintaining high standards of commercial morality. Examples of trade secrets include the technical specs of an unreleased product, confidential customer lists, and manufacturing processes and formulas. See the Trade Secrets section in this guide for more information.
Patent: Patent law provides ownership rights and protection for unique processes, procedures, methods, inventions, and discoveries. It gives the patent owner the exclusive right to exploit (i.e. create, use, sell, distribute) the invention for a limited period of time (typically twenty years from the time of a patent application filing). Patent law's purpose is to spur innovation by giving inventors a financial incentive to invent. We do not cover patent law in this guide. For general information, see the U.S. Patent and Trademark Office's General Information Concerning Patents.
A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.
Like any area of the law, copyright can get complex at its outer limits. However, a working knowledge of copyright law is not hard to acquire and will guide you through nearly all the situations you are likely to face in your day to day work.
Let’s start with some of the building blocks. First, all copyright law is federal law and therefore uniform across the country (in theory). States have no role, because the Constitution gives Congress the sole "power . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress first exercised this power to establish copyrights (and patents) in its first meeting in 1791, and it has regularly revised and updated the law ever since. Though the last comprehensive copyright revision was enacted in 1976, Congress has passed many new copyright laws and amended others – sometimes after highly contentious lobbying and debate – in the digital era.
Second, copyright law covers an extraordinarily broad range of creative work. The law calls them "works of authorship" but copyright protects almost all creative work that can be written down or otherwise captured in a tangible medium:
For more information on works protected under copyright law, see the section in this guide on Copyrightable Subject Matter.
Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work; to distribute the work publicly (or not so publicly); and to perform or display the work, if it is a work of performance or visual art. Owning a copyright also gives you the exclusive right to prepare "derivative works," which are the original works in new forms – for example, a translation into another language, or a movie made from a novel, or a revised or expanded edition of an existing work. Someone who does these things without your permission is infringing your copyright, and the law provides recourse to you. For more details on the exclusive rights granted to a copyright owner, see the section on Rights Granted Under Copyright.
Third, copyright is extraordinarily easy to acquire. In fact, you really need do nothing at all – the law provides that copyright springs to life and protects an author’s work from the time the work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .” So when words are put on paper, or paint to canvas, or sights to a videotape, digital camera or cellphone, or even when any of the above are stored in a computer’s memory – they’re copyrighted. That’s it. They don’t have to be published. There is no requirement to put a copyright notice on it (though that is often helpful). There is no requirement that it be registered with the Copyright Office in the Library of Congress (though commercial publishers routinely do that, to show up in the database of copyrighted works.) If you are interested in registering your work with the Copyright Office, consult the section on Copyright Registration and Notice.
The law requires only that copyrightable works of authorship be "original" – but that is an easy hurdle to clear. Unlike the patent laws, there is no requirement that a work be innovative, meritorious, or even particularly bright or interesting. A work of authorship just can't be a copy of anyone else's work, and it must have some modest degree of creativity to it. In 1991, the Supreme Court ruled that an ordinary white-pages telephone book was not sufficiently creative to be copyrighted, but that gives you an idea of how low the barrier is. Any "work of authorship" that you create in the honest application of your own skills will likely be sufficiently "original" to be protected by copyright.
So what is the catch? None, really, but there are two cardinal principles of copyright that – fortunately – limit its reach. First, copyright protects the form in which ideas are expressed (the essay, the novel, the news story in the paper or on the blog) but it does not protect the ideas themselves. Nobody owns ideas. You might write the most insightful, original, and brilliant blog post on how to achieve peace in the Middle East or reduce carbon emissions, but from the moment you publish the post anyone may seize upon that idea to expand upon it, analyze it, criticize it, or discuss it in any way they like. What they can’t do is reprint your expression of the idea, without your permission. (And, at least in academia and among reputable publications, they ought not to present the idea as their own, or even to discuss it without first acknowledging that it is your idea. However, because copyright does not protect ideas, the law does not punish plagiarism of ideas. For more information on the distinction, refer to the section on Copyright Infringement.)
Second, copyright does not protect facts. No matter how long and hard you work to uncover and report facts, no matter how significant the impact of your reporting, you don’t own those facts. Anyone can repeat them, so long as they do not copy your story itself. By the same token, of course, you can appropriate facts that someone else has reported, without copyright concerns. (You ordinarily have an ethical obligation to credit the source of your facts, but it’s not a copyright obligation.) For more information on the types of works not covered by copyright, consult the section on Works Not Covered by Copyright.
As these principles suggest, copyright in its classic formulation is an effort to balance two often-conflicting goals. We want to encourage people to report the news, create art, publish works of history and science, and generally advance knowledge. The law provides the creators the exclusive ownership of their works for a limited time so that they can make money from them. On the other hand, we want to encourage a free flow of ideas, discussion, and intellectual synergy. Facts and ideas are put into the public domain at the moment of birth. In the words of Oliver Wendell Holmes, "the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution." Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
This effort to achieve balance naturally produces conflict. How can you challenge a blog post proposing a new way to reduce carbon emissions unless you can quote from the copyrighted post itself? Requiring you to get the original author’s permission would certainly inhibit the free flow of ideas and would come very close to giving that author control over the idea. To ease this conflict, the law recognizes a principle known as "fair use," which is simply the freedom to use another’s copyrighted work in the course of creating your own copyrighted work.
There have always been unspecific but sensible limits to this principle – you generally can't, for example, “quote” another’s work by reprinting it in its entirety, even if you threw in a few new words of your own (on the other hand, if the original work was only a few paragraphs long, you might even be able to do that in some circumstances). Generally, courts recognize that if the borrowing is not excessive, that if it advances the creation of a new work, and if it does not undercut the market for the original work, the use is fair. The section on Fair Use in this guide provides more information on the fair use doctrine.
In the digital era, "fair use" has become a battleground. No one challenges the original principles, but instant reproduction and worldwide distribution of any digital work is within everyone’s reach. Some creators of copyrighted works – record labels and movie distributors most prominently – have imposed electronic lockdowns, known as digital rights management, on their works. This has led some to claim that these lockdowns extinguish their fair use rights.
There is another aspect to this political battle. The Constitution authorizes Congress to protect writings and discoveries for "limited times." In the 19th century, a "limited time" meant no more than 28 years after publication. For most of the 20th century, it meant up to 56 years. But since 1998, it has meant for the life of the author and for an additional 70 years. So, if a 25-year old author creates a work in 2008 and lives another 60 years, that work is protected by copyright until 2138, an extraordinary 130 years. By that measure, most of the works of Henry James and Mark Twain would still be copyrighted today. Many critics of the current copyright structure point to this lengthy protection as an unwarranted distortion of “limited time,” but the Supreme Court upheld the law in 2003. (As a rule of thumb, any work published before 1923 is probably now in the public domain; any work published since then probably is not, but there are exceptions to both those guidelines.)
Because a copyright is intangible property (hence, "intellectual property," a field that also includes patents, trademarks, trade secrets, and now URLs and domain names), it can be bought, sold, given away, bequeathed at death, and licensed to others. Indeed, licensing is an active field in copyright law. An author’s contract with a publisher is a license; while the author may retain the copyright, the publisher shares the revenue and edits, prints, and distributes the work. Works may also be sold outright, as newspapers often require freelancers to do. Ownership may also vest in the employer from the outset, if creating copyrighted works is part of one’s employment. For more information, visit the sections on Licensing Your Content and Getting Permission to Use the Work of Others to use someone else's work.
There are other aspects to copyright law that can be useful to know. For example, works of the US Government are never copyrighted and hence can be reproduced without payment or permission. Copyrighted works such as music, movies, and drama may be performed or displayed (but not copied) without permission in the course of face-to-face teaching and distance learning in schools and universities. A library user is generally entitled to make a single copy of a copyrighted work for private study and scholarship.
In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatise on copyright law, but it does provide what we hope is a good understanding of what you need to know, both to make intelligent use of others’ creative works and to protect your own.
Copyright law applies to any original works of authorship that are fixed in a tangible medium of expression, and gives copyright owners certain rights to control the use and distribution of their work. The following two sections explain the two concepts in more detail:
If you are interested in information on who can own a copyright and how to use the copyrighted work of others, see the sections on Copyright Ownership and Using the Work of Others for discussion of these topics.
Copyright protection automatically applies to "original works of
authorship" that are "fixed in a tangible medium of expression." The
definition is less complicated than it sounds. If you create a blog
post, podcast, or article, your work is covered by copyright the
instant it is created in a tangible form, such as on paper, in a blog
post, email, or video. You do not need to do anything more, such as
signing or filing any papers or provide specific notice to the world
that the work is covered by copyright. (You may however wish to provide
copyright notice and register your copyright; see the section on Copyright Registration and Notice
for more information.) Assuming it meets the requirements for
protection, a work is automatically copyrighted in the U.S. and in over
160 other countries from the moment of its creation.
Original Works of Authorship
The level of creativity required for a work to be "original" is extremely low. A work satisfies this requirement as long as it possesses some creative spark, "no matter how crude, humble or obvious it might be." Feist Publ'ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). A work that originates from the author and contains any level of creative expression will satisfy the originality requirement. In the Feist case, the Supreme Court held that listing names alphabetically in a phone book is not creative; almost anything more creative than that probably qualifies.
Sometimes, a creative work will have both original and
unoriginal elements. In that case, the owner of the copyright to the
work may assert rights over the original elements, but not the
unoriginal elements. For example, a hip-hop music publisher recently
sued the famous rapper, 50 Cent, claiming that his popular song, "In Da
Club," infringed the publisher's copyright in a song called "It's Your
Birthday" (written by another hip-hop artist named Luther Campbell). Lil' Joe Wein Music, Inc. v. Jackson,
No. 06-16342 (11th Cir. 2007). The lyrics to "It's Your Birthday"
include the phrase "Go [name], it's your birthday" with various proper
names used in succession. 50 Cent's "In Da Club" also includes a
section where he sings "Go Shorty, it's your birthday." The court found
that the phrase "Go [name], it's your birthday" in Campbell's "It's
Your Birthday" was not original -- the evidence showed that Campbell
borrowed this phrase from chants popular at hip-hop nightclubs in the
early 90s. Although the rest of Campbell's "It's Your Birthday" was
protected original expression, the music publisher could not hold 50
Cent liable for infringement because he had only used the "birthday"
phrase, which was not original to Campbell.
Fixation in a Tangible Medium
A copyrightable work is considered "fixed in a tangible medium" if it can be perceived, reproduced, or otherwise communicated for more than a transitory period. This includes any electronically readable formats (e.g., a blog post, email, or even storage in computer memory), audio recordings, and video. It does not matter whether the work has been "published" (i.e., made available to the world), as copyright protection is available to both published and unpublished works, so long as it is otherwise fixed in a tangible medium.
Some examples include:
This list is not exclusive. Copyright protection can apply to any work fixed in any tangible medium of expression, whether this medium is currently known about or is yet to be developed, so long as the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. See 17 U.S.C. Sec. 102.
Some works cannot be copyrighted; visit the section on Works Not Covered By Copyright for more information.
Copyright law grants you several exclusive rights to control the use and distribution of your copyrighted work. The rights include the exclusive power to:
See Section 106 of the Copyright Act.
As a copyright owner, you can transfer each of these rights to others, either individually (e.g., just the reproduction right or just the display right) or as a group (all of the rights listed above). Additionally, although the exclusive rights are broad, copyright law does not give you an attribution right (i.e., the right to require that your name be associated with the work). Thus, if you decide to transfer or license any or all six of the rights listed above and wish to have your name be associated with the work, make sure to provide for attribution through the contract or license. For information on how to transfer or license rights under copyright, visit the Copyright Licenses and Transfers section of this guide. Note that if you are a minor, although you retain ownership over your own copyrightable work, state laws may restrict your ability to conduct business transactions, such as licensing and transfer.
If someone else performs an action that violates one of these exclusive rights without your permission, you can sue that person or entity in federal court for copyright infringement. Bear in mind that certain prerequisites apply before you can file suit-- consult the Copyright Registration and Notice section of this guide for details.
You can exercise these six rights for the duration of the copyright term. For works created on or after January 1, 1978, this term will vary depending on who is the rightful copyright owner:
Because copyright rules changed significantly in 1978, the copyright terms for works created prior to 1978 follow different rules. For an explanation of the rules relating to copyright term for works created prior to 1978, see the U.S. Copyright Office's official website. You can also find more information on when works fall into the public domain in the Works Not Covered By Copyright section of this Guide.
Copyright ownership encompasses several important concepts beyond the simple question of who initially created the work at issue. As discussed below, the person who creates a work is not necessarily the copyright owner. Many mistakenly believe that the creator of a work automatically holds the copyright. While this is often the case, exceptions do occur when an employee creates a work in the course of his or her employment, or if an independent contractor creates a work "made for hire." Moreover, if more than one "creator" is involved, the copyright might be shared. Further complicating the picture, the original creator(s) may have transferred their copyright to another person or entity.
The following sections touch on each of these issues, as well as the advantages that come from registering a copyrighted work and providing copyright notice:
Copyright protection begins when an original work becomes fixed in a tangible medium of expression. (For more information on when a work is "fixed" and what qualifies for protection, see Copyrightable Subject Matter). As a general rule, the creator of the work (the author) owns the copyright.
You are the author of a work if you create something original, as opposed to merely copying the work of another. For instance, you are the author of a blog post when you put the story/idea/information into "expression" through words. In contrast, merely coming up with an idea does not make you the author because nothing has actually been expressed.
As the sole owner of a copyrighted work, you enjoy certain exclusive rights. However, if you collaborate with other authors to produce a final work, or if you allow another person to use copyrighted work in a collection of works, copyright law treats you differently.
When two or more authors materially contribute to a work, and each does so with the intent of creating a single work, the work is "jointly authored."
A "material contribution" must be independently copyrightable (i.e., original, fixed in a tangible medium of expression, not non-copyrightable material like facts or ideas). If you only contribute non-copyrightable elements, such as ideas and suggestions, then you're not an author.
For example, if a friend suggests a topic that you subsequently blog about, you alone own the copyright on the posting because your friend contributed nothing but non-copyrightable material (the idea).
As another example, let's say you work with a group of journalists and someone routinely edits your work. If the editor is only fixing facts or making minor grammatical changes, you are still the sole owner of the copyright. However, if the editor's changes are more substantial, such that he is contributing original content or points of view, the work might be jointly authored.
Finally, consider multiple individuals contributing to the creation of a website. One person does page layout, another handles graphics, and a third develops the underlying code. Copyright ownership will vest jointly in all of these contributors.
Your Legal Rights As a Joint Author
If you are a joint author, you hold an equal interest in the copyright with the other authors regardless of your actual contribution to the work.
Technically speaking, you hold an undivided ownership share in the copyright. An undivided ownership share provides nearly all the rights of individual ownership, while also sharing the value of those rights. As a joint author, you retain the right to reproduce the work, create derivative works, distribute copies of the work, and publicly display or perform the work without getting the permission of the other joint authors. Of course, this goes both ways, and the other joint authors may do the same. You can also transfer your undivided ownership share without seeking approval.
As a joint author, you cannot grant an exclusive license. Granting an exclusive license would directly harm the other joint authors, and thus you need their approval. See the section on Copyright Licenses and Transfers for more on the difference between exclusive and non-exclusive licenses.) However, you may grant non-exclusive licenses without approval from the other authors, which can lead to situations in which each author licenses the work to a different publisher.
Finally, as a joint author you share in the value created through performance, distribution, or licensing of the work. Because each joint author only has a share in the copyright, any value must be distributed equally to all joint authors.
What to Consider if You are Working with Other Authors
You don't have to be restricted by the rules of joint authorship detailed above. Instead, you and your co-authors can enter into a collaboration agreement (a contract) to alter your rights and obligations. A collaboration agreement defines the responsibilities, compensation, and control of each author. Collaboration agreements may also designate how credit will be presented (e.g. the list of authors) and may outline the approval process to license or transfer an author's rights. As an example of a collaborative agreement, see Hollywood Comics' template.
A collective work consists of smaller works that are independently copyright-protected. Whereas a work of joint authorship is a single copyrightable work with contributions that were not intended to stand alone, a collective work compiles constituent parts that do (and often were originally intended to) stand alone.
The person who assembles the collective work (the "collective author") owns the copyright to the selection and arrangement, but the owners of the copyrights to the underlying works retain their rights. See 17 U.S.C. 201(c), 17 U.S.C. 103(b).
Copyright law gives the collective author the right to reuse the underlying works in a subsequent publication if that subsequent publication is:
See 17 U.S.C. 201(c). If the collective author wants to include the underlying works in a different manner than the above three categories, she needs to get express permission from each copyright owner.
Some common examples of collective works are poetry anthologies, newspapers, magazines, and scholarly journals. In general, each discrete edition of the newspaper, magazine, or journal is a collective work made up of individual articles, some of which are written by freelancers. (For a discussion on the difference between the work created by a freelancer--or independent contractor--and an employee, see the section on Works Owned by Someone Else.) The freelancer owns the copyright to his individual contribution, and the publisher owns the copyright to the collective edition of the newspaper.
Generally, a publisher can reprint an article from one issue in a later issue of its newspaper or magazine ("a later collective work in the same series"). However, when publishers publish in new media, the legal issues get more complex. In one case, the New York Times digitized articles from its print edition, put them in a database, and made them individually available online. The Supreme Court held that because the online version of the articles were viewable individually, they violated the freelance writers' copyrights because they were were "disconnected from their original context" and did not replicate the original selection and arrangement. See New York Times Co. v. Tasini, 533 U.S. 483 (2001). On the other hand, the Court suggested that preserving the collective work through microfilm would be a permitted revision because the microfilm maintains the original organization, layout, and context of the collective work. Thus, a magazine publisher can distribute digital scans of their print magazines, since the resultant work uses the "almost identical 'selection, coordination, and arrangement' of the underlying works as used in the original collective works." See Faulkner v. National Geographic Enters., 409 F.3d 26, 38 (2nd Cir. 2005).
While most cases involve a collective work transitioning from print to digital publication, there is no reason to believe the same would not hold true in the opposite direction. Thus, if you created a web page of the most influential blog posts from 2001-2005, getting permission from each original poster to do so, you would need to retain the selection, coordination, and arrangement in order to also distribute a print version.
What This Means For You
When you allow someone else to use your work in their collective work, you are not giving the collective author the rights to do whatever she wants. If you are compiling a collective work, the permission an author gives you to use a work in your collective does not give you free reign to use that work as you please. You should pay particular attention to these points if you are publishing or distributing in multiple mediums. If you have a particular concern about how, where, and when works may be used, be proactive and ensure those details are finalized in a written contract. See the sections on Copyright Licenses and Transfers and Getting Permission to Use the Work of Others for more information.
In general, if you create a work, you are the copyright owner of the work. However, if you create a work for hire, copyright law recognizes the person who hires you as the owner of the work. Your work may be a work for hire if you create it as an employee or as an independent contractor (a freelancer). However, if you are an independent contractor, the law makes it harder for the hiring party to obtain the copyright ownership of your work. While we discuss the work for hire doctrine below, you may wish to also consult Keep Your Copyright's excellent resource on Works for Hire for more information.
Employee
Your work falls under the work for hire exception if you create it in a conventional employment setting. For example, if you write blog posts as part of your job responsibilities, your employer owns the copyright to those posts.
However, determining whether an employee creates a work in the
scope of employment is not always so straightforward. For example, if
you write a screenplay during your lunchtime, you own the copyright to
the screenplay. As another example, a university professors, despite
being an employee of the university, owns the copyright to her
textbooks, scholarly articles, and blog posts. (See Columbia
University's copyright policy and Trinity University's copyright policy as examples of how educational institutes are following this practice.)
Independent Contractor
Your work may also fall under the work for hire exception when you create it as a freelancer, if:
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The person who hired you as an independent contractor owns the copyright to the work only if these two conditions are met. Otherwise, copyright ownership remains with you. Therefore, as a freelancer, you own the copyright to your work unless you sign a contract explicitly designating it as a work for hire. This gives freelancers a considerable amount of bargaining power in negotiating the terms for a commissioned work.
Issues to Consider
The work for hire area is complex. Whether someone is an employee or independent contractor often turns on specific factual circumstances, and includes a discussion on factors outlined in the business section on Employee Versus Independent Contractor. Additionally, whether a work fits into one of the above nine categories hinges on sometimes difficult distinctions. You should safeguard against any future misunderstandings by being clear about your relationship in writing.
For example, if you're contemplating a situation in which the person hiring you will own the copyright to your work (which falls into one of the nine categories), not only should you add express language about the work being "made for hire", but you should also consider bargaining for additional compensation due to giving up your copyright ownership.
On the flip side, if you are commissioning someone to make a work "made for hire," make sure that the work fits into one of the nine categories listed above. If the work clearly does not fit into one of those categories, consider having the freelancer assign the copyright to the work to you as part of the agreement, or adjust the payment to reflect your lack of copyright ownership.
You may want to consult a lawyer before entering into an relationship where you will be creating works for someone else or hiring someone to create work for you. Refer to the section on finding legal help to explore your choices.
Although you do not need to use a copyright notice or register your work in order to hold a copyright in the work, notice and registration give you a number of benefits, which we discuss below. (For more information on the basic requirements of copyright ownership, see the section on Copyright Ownership in this guide.)
By putting a copyright notice on your work, you inform the public that your work is protected by copyright. Notice allows someone to contact you for permission to use your work. Notice also limits the ability of someone who infringes your work to claim they didn't know of the copyright's existence.
A copyright notice of must be affixed (or must exist in a place) so that it “give[s] reasonable notice of the claim of copyright.” A notice of copyright typically includes the copyright symbol, ©, the year of first publication, and the name of the owner of the copyright. For example, © 2008 Berkman Center for Internet & Society.
The copyright symbol may be replaced by the word “Copyright” or the abbreviation “Copr.” For example, Copyright 2008 Citizen Media Law Project and respective authors.
You do not need to register your work before putting notice on it. Note that if your work is a sound recording embodied in "phonorecords", you will need to complete a separate form for copyright notice.
Copyright registration is not a prerequisite to copyright protection. However, registering a copyright in your work with the U.S. Copyright Office provides the following advantages:
For more on why you might want to register your works, please see Sarah Bird's excellent post, Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work Is Protected Automatically.
Bear in mind that when you register a work, the Copyright Office does not validate the accuracy of your copyright claim. Also, registration (and copyright law in general) does not protect against similar, independently created works. A person can create a work that is substantially similar to yours without legal ramifications, so long as that person created the work without any reliance on your work (i.e., never read, saw, heard about it, etc.).
Registering Online WorksOnline works (including web pages) provide a unique challenge for those wishing to register their work. Online works are typically updated frequently, with content changing regularly. Unfortunately, under copyright law, each substantially updated version (or, in legal terminology, derivative work) must be registered separately. For more details on the registration of online works, see the U.S. Copyright Office's Circular #66: Copyright Registration for Online Works.
The U.S. Copyright office does, in some instances, provide the ability to register copyrights in a group (i.e., a single registration covering multiple versions). Specifically, you can register an automated database, a serial (published weekly or less often), and a newsletter (published more often than weekly) to get protection for multiple versions. Some web sites have registered under these classifications, but it remains to be seen if/how the contents will be protected. For more details on these alternative types of registration, see the U.S. Copyright Office's Circular #65: Copyright Registration for Automated Databases, Circular #62: Copyright Registration for Serials, and Circular #62a: Group Registration of Newspapers and Newsletters on Form G/DN.
How to RegisterThe process of registering a copyright with the U.S. Copyright Office is relatively straightforward. Sarah Bird at Seomoz.org has a fantastic resource on Sample Forms and Strategies for Registering your Online Content.
There are four basic steps to the registration process:
1. Determine which form to use and fill it outNote: For compilations, use the form that best fits the majority of the work.
2: Determine how many copies are needed
Note: copies are non-returnable.
3. Pay the fee
4. Mail the package
The mailing address is:
Library of Congress Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
As part of an effort to update and modernize its processes, the U.S. Copyright Office is shifting towards electronic copyright registration with the introduction of eCO (Electronic Copyright Office). The changes were officially announced on July 1, 2007, although the new system will not be publicly available until a later date. Key highlights of the new initiative include a reduced fee for registering electronically ($35, rather than $45 for paper registration) and online fee payment. For details about the proposed new system and/or to register as a beta tester, please see the U.S. Copyright Office's eCO web page.
A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. For more information on copyright creation and ownership see the Copyright Ownership section of this legal guide.
If you are the copyright owner of a work (and you likely will be if you created the work), such as an article, a blog post, a photograph, or a video, you can authorize others to use it. You can do this by transferring to the person or entity that wants to use your work any or all of your rights as a copyright owner, or any subdivision of those rights. Alternatively, you can license any or all of those rights (or any subdivision of them) to that person or entity.
As the person granting the transfer or license, you have a
great deal of freedom in how to structure the transaction. How you
choose to do so can have a substantial impact on your ability to make
money from the work, the amount of control you retain over it, and the
costs associated with the transaction. Often, it will make sense to
hire a lawyer in order to deal with such a transaction because of the
complexity of the subject-matter, the potential flexibility of the
transaction, and the potentially high stakes. On the other hand, there
are three models or approaches that generally do not require the
assistance of a lawyer: an "all rights reserved" approach, using a
Creative Commons license, and a dedication to the public domain.
Whether one of these three approaches or some other approach is best
for you is a matter of personal preference. In the discussion that
follows, we go into more detail to give a sense of the issues involved
and to explain how you can effectively transfer or licensing your work.
The decision about whether and how to license or transfer your work
will depend on your own personal preference. There are a number of
factors that you may want to consider in reaching your decision,
including the potential for making money from the work, the extent of
control retained over the work, the costs involved in the
licensing/transfer transaction, and the permanence of the measure.
These and other issues are addressed below.
One obvious benefit to licensing/transfer is that people or businesses may be willing to pay you for use of your work. In some instances, this payment can be a significant source of income and may help support your project or website as well. In the How to Effectively Transfer or License Your Work section, we discuss three models for licensing/transferring your content: an "all rights reserved" model, using a Creative Commons (CC) license, and dedicating your work to the public domain. The most direct way of seeking revenue from exploitation of a work is to reserve all rights with respect to the public at large and then to pursue selective licensing or transfer deals in exchange for money. This is because granting a CC license to the public does not involve payment in return, although it does not rule out granting other licenses in exchange for money, and a public domain dedication obviously gives up all your rights to exploit the work. In contrast, if you are interested in contributing to, or gaining extra exposure in, an artistic, intellectual, business, or other community (perhaps with indirect financial benefits), a CC license or public domain dedication might be more appropriate.
One thing to keep in mind is that a full transfer of your rights will probably fetch more money in the short term than a non-exclusive license, but this comes with a corresponding sacrifice in terms of control of the work and personal exploitation.
Another thing to consider is whether your goals in relation to your work may change over time. Your aim now might be to gain exposure, but you might wish to commercialize your work down the line. Granting broad permission for others to freely use your work (through a CC license or similar) now may curtail your ability to commercialize the same work in the future.
Retaining control of your workRetaining control of your work is another significant issue. The important thing to remember in this regard is that you are not presented with an "all or nothing" scenario. You have significant freedom in how you structure your transfer or license, and the amount of control you retain is largely up to you. For details, please see the Which Rights Can Be Transferred or Licensed section.
For those seeking more control, an "all rights reserved" model combined with selective licensing transactions may be the best route, but this may necessitate the help of a lawyer specializing in intellectual property licensing. A CC license offers slightly less control (because the license is given to the public at large and generally allows sub-licensing on the same terms), but it is much lower cost because the entire process is automated on the CC website. That said, you still retain significant control with a CC license. For instance, you can grant the public a license to copy and distribute your work, but bar them from making derivative works (adaptations) of it or using it for commercial purposes. For more on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.
Are there any costs involved?Different costs are involved based on which approach you take. For instance, granting a CC license to the public is free, but you will not make money directly from the license. Because a CC license is non-exclusive, you can still enter into one-on-one transactions for money, but these are more complex and likely require the assistance of a lawyer, which is expensive. Registering the transfer with the Copyright Office, an optional step which some copyright transferors take to protect their interests, also carries a fee (see Copyright Office Fees). Likewise, reserving your rights with regard to the public at large and transferring or licensing your rights in one-on-one transactions for money is likely to be expensive for the same reasons. You can dedicate your work to the public domain at no cost, but by doing so you give up all control and prospect of future remuneration.
If I transfer or license my work, is this permanent?Not necessarily. The length of time that a grant lasts will depend on the transfer or license arrangement you enter into. For instance, you can grant a transfer or license your rights in relation to your work for a specified duration of time (see the Which Rights Can Be Transferred or Licensed section). If you do not specify an end date in the executing document, or even if you if specify that the transfer or license is permanent and irrevocable, under the Copyright Act the grant is generally terminable by your (or your successors) within a five year window starting 35 years after the execution of a grant (see the Terminating a Transfer or License section).
It is also worth noting that if you grant a non-exclusive license to a person, and do not receive "consideration" (payment or some other kind of benefit in exchange for the grant) from them, this license is revocable (see the How to Effectively Transfer or License Your Work section).
How this all works with a CC license is not 100% clear. All varieties of CC license have a clause saying that the license grant is non-revocable. According to the CC FAQ:
This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.
It is not entirely clear whether the contractual language purporting to make the license non-revocable would stand up to a legal challenge based on the automatic termination right granted by the U.S. copyright law or the argument that a CC license is a non-exclusive license made without consideration. In any event, it is probably safest to assume that a CC license is permanent, so you should think very carefully about whether or not you are happy with the public making use of your work in the way described in the license.
If I license or transfer my work, does it affect what I can do with the work?It depends. If you transfer all or one of your rights to someone else, then you may no longer exercise those rights. If you grant an exclusive license to someone with regard to a particular right or group of rights, then you are similarly prohibited from exercising those rights. But if you grant a non-exclusive license to someone else to exercise a right or group of your rights, then you are free to continue exercising the right or group of rights and authorizing others to do so. A CC license is a non-exclusive license, so granting the public a CC license does not affect your ability to use your work. For more information on what constitutes a "transfer," an "exclusive license," and a "non-exclusive license," please see the Understanding the Difference Between a Transfer and a License section.
Can others use my copyrighted work without being granted a license or transfer?Yes. United States copyright law allows others to make "fair use" of your work without permission. Under the fair use doctrine, third parties are permitted to use your copyrighted work without your permission for limited and "transformative" uses, including criticism, commentary, news reporting, parody, and teaching. For example, if a blogger quotes a paragraph from an article or post on your website and compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without a license. Nevertheless, fair use is a notoriously fact-sensitive defense to a copyright claim, and it is difficult to determine beforehand whether a particular use is a fair use. See the Fair Use section for more details. For this reason, many people may prefer to seek out a license before engaging in a use that might be a "borderline" fair use. When you grant someone permission to use your work via transfer or licensing, the idea is that you are permitting them to engage in a use that would not be "fair" under the law.
A transfer of copyright is a conveyance of ownership, much like the sale of personal property. When you transfer your entire interest in a copyrighted work, or one or more of your exclusive rights under copyright, you give up all claim to the right(s) you convey (except as explained in the Termination of a Transfer or a License section). The recipient of the transfered right(s) may:
A license is a grant of permission to exercise your rights under copyright. In copyright terminology, there are "non-exclusive" and "exclusive" licenses. When you give someone a non-exclusive license, you give the licensee permission to exercise the right in question, but you also reserve the right to continue exercising it yourself and to authorize others to do so. When you give someone an exclusive license, you promise that the licensee and only the licensee may exercise the right. This means that when you grant an exclusive license, even you may not exercise the granted right, nor may you authorize anyone else to do so.
Copyright law treats an exclusive license like a transfer. Therefore, the recipient of an exclusive license to a right or right(s) may:
The recipient of a non-exclusive license may exercise the right or rights licensed, but MAY NOT:
If you are the copyright owner of a work, you can transfer, or license others to exercise, some or all of the rights listed in Section 106 of the Copyright Act. These include:
For instance, say that you've uploaded an e-book that you have written to your website in PDF format. You could grant a user of your website permission to download and make copies of this book, but prohibit him or her from distributing your e-book to other people.
You can further limit the rights granted based on type of media, geographical effect, and time (among other possible criteria). Three illustrative examples follow.
The particular examples given above are not important, nor necessarily representative of all the possibilities. The point is that you have many options in how you choose to define the rights that you transfer or license. Because of this flexibility, crafting a license can be complex and may require the assistance of a lawyer to draft terms that reflect your specific preferences as to how other people use your work. On the other hand, a Creative Commons license gives you a great deal of flexibility in terms of choosing which rights to grant others and which to withhold, without the complexity of drafting your own agreement or the expense of hiring a lawyer.
Note: You can transfer (or grant an exclusive license to) all of the Section 106 rights together. By doing this, you transfer ownership of the "copyright" itself -- i.e., all rights in the work, except for the right of termination.
Below are three models or approaches to transferring or licensing your work that are relatively straightforward and therefore can be accomplished without the assistance of a lawyer. One caveat is that the first approach, the "all rights reserved" model, could be used in conjunction with sophisticated transfer/licensing transactions on a case-by-case basis, in which case the assistance of a lawyer would be more indispensable.
You might decide that, although you want to display your work online and/or distribute it to your users, you do not want to grant to those users any rights beyond those necessary for their personal consumption of your work. In that case, you could adopt the "all rights reserved" model. This approach is not really a transfer or a license -- rather it is an effort to limit the scope of the implied license you give to your users when you post and/or distribute your work.
All you need to do is affix the standard copyright notice to each page of your website (and/or to any other materials you distribute) and add a short statement indicating that you intend to reserve all your rights. For instance, you may affix to each page of your website the following statement: "Copyright © [Year], [your name or name of applicable entity], all rights reserved." If you are distributing a podcast, you might want to include a short statement at the beginning of the podcast indicating that you "reserve all rights" in it. As a general matter, you may want to alter the rights reservation statement on your site to indicate that you are reserving rights only in the content specifically created by you.
Displaying an "all rights reserved" notice will not prevent fair use of your work.
Note: the concept of an "all rights reserved" model is adapted from the Podcasting Legal Guide © 2006 Colette Vogele of Vogele & Associates, Mia Garlick of Creative Commons and the Berkman Center Clinical Program in Cyberlaw. This Guide was produced as part of the Non-Residential Fellowship Program of the Center for Internet & Society at Stanford Law School.
Creative Commons licenses give you the ability to allow some reuse and redistribution of your work by others without giving up all control. They are licenses that you grant to the public at large at no cost, and they specify to what uses the public may put your work. There are six main types of Creative Commons licenses to choose from, and they vary based on several factors, such as whether the licensee (the person to whom you give the license) can create derivative works (i.e., alter, remix, or build upon your work) and whether commercial redistribution of the work or its derivatives is permissible. They all require attribution - that is, the licensee must credit you as the author in the way you designate.
Note: the most recent 3.0 versions of these licenses are not specific about the form of attribution. As a matter of best practices, you may want to require that the attribution include the name of your site and/or organization and a link back to your site.
The process of choosing the license that fits your needs is automated on the CC website. Once you choose a CC license, applying it to your online work is simple. According to the CC FAQ:
Once you have selected your license, and if you are applying it to an online work, follow the instructions to include the html code in your work. This code will automatically generate the "Some Rights Reserved" button and a statement that your work is licensed under a Creative Commons license, or a "No Rights Reserved" button if you choose to dedicate your work to the public domain. The button is designed to act as a notice to people who come in contact with your work that your work is licensed under the applicable Creative Commons license. The html code will also be include the metadata that enables your work to found via Creative Commons-enabled search engines.
For an example of how this works, the Citizen Media Law Project (CMLP) has licensed the content of its website under a CC Attribution-ShareAlike 3.0 License, a notice about which is displayed at the bottom of every page of our website as a footer. It allows users to copy, distribute, and remix the CMLP's original content, so long as (1) it is attributed to the CMLP in the manner specified; (2) it is not used for a commercial purpose; and (3) adaptations are distributed under the same or similar license.
Before you apply a Creative Commons license to your website, you need to consider whether or not you are the copyright owner of the materials that appear on your website. You can only apply a CC license to materials that you have created or for which you have express permission of the copyright owner(s) to license under a CC license. If everything appearing on your website does not fit this criteria, you might consider applying a CC license to only some elements of your website, such as your text and photographic images, while not applying the license to other elements to which you may have a limited license, such as photographs taken by a colleague or ad-related material. In that case, it is critical that you identify which elements of your website are subject to a CC license and which parts are not. For a great page that discusses issues you need to think about before applying a CC license to your website or other copyrighted material, see CC's Things to Think About page.
One side benefit of using a CC license is that you can incorporate Creative Commons metadata into your website, allowing users to find your work through customized Creative Commons searches via Google or other search engines.
Licensing your work under a CC license does not preclude you from entering into a separate license agreement with someone else, for instance for using your work for commercial purposes. The details of such a license, including whether or not you could grant the licensee exclusive rights to distribute the work commercially, would depend upon what type of CC license you initially select. There are services such as Lisensa designed to work in tandem with CC licenses to display commercial license terms and automatically collect license fees. Lisensa, however, takes a 10% cut of all royalties and is also fairly limited in scope at the present time. You may want to consult a lawyer when dealing with the sometimes complicated intersection between CC licenses and commercial licenses.
For more detail on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.
You may wish to dedicate all of your rights of copyright ownership in a work to the public. The public domain model could also be described as a "no rights reserved" model. You can do this by simply be putting a dedication notice on the work with language like "This work to which I own copyright is hereby released into the public domain" or "Everything on this site to which I/we own copyright is hereby released into the public domain." Alternatively, you can use a Creative Commons Public Domain Dedication.
The two sections listed below are mostly of academic interest if you choose one of the three models mentioned above, but they may be of more assistance if you choose to pursue transfer or licensing deals on a case-by-case basis. They give details about the formal requirements for a valid transfer or licensing contract, as well as information about the circumstances under which a copyright owner is entitled to terminate a transfer or license. These summaries of the law necessarily reduce some of the complexities involved, and readers are advised to consult with a lawyer when presented with issues of formal validity, consideration, and termination/revocation.
Transfers and Exclusive Licenses
A transfer or exclusive license of any or all rights under copyright must be in writing and signed by the owner of the rights conveyed (or the owner's duly authorized agent). The writing should describe the nature of the rights conveyed. As a copyright owner, you should specifically carve out any rights that you wish to retain in the work, especially with regard to exploitation of the work in new media or technological formats developed in the future. 17 U.S.C. Sec. 204(a).
The U.S. Copyright Office does not have any special forms for the contract through which you transfer right(s). Copyright law provides for the recordation of transfers of copyright ownership in the Copyright Office. Although recordation is not required to make a valid transfer between the parties, it provides certain legal advantages, and may be required to validate the transfer as against third parties. For more information on recordation of transfers and other documents related to copyright, see the Copyright Office's Circular 12: Recordation of Transfers and Other Documents.
Writing is not required for a non-exclusive license, because by defining a "transfer of copyright ownership" to exclude non-exclusive licenses, 17 U.S.C. Sec. 101 relieves non-exclusive license from the operation of U.S.C. Sec. 204(a). The grant of a non-exclusive license can be oral or inferred from conduct.
No writing is required for transfers of copyright "by operation of law." 17 U.S.C. Sec. 204(a). The Act does not specify what is meant by "by operation of law", but in general a copyright is conveyed "by operation of law":
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property, as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.
Non-exclusive Licenses
Non-exclusive licenses do not require a writing in order to be valid, and the existence of a licensing arrangement can even be implied from conduct (an "implied license"). Your conduct may give rise to an implied license when it indicates that you intend to extend a license to those using your work, but you never agree to specific terms for the license. The user of your work acquires some right to use it, but only to the extent that you would have agreed to, had you negotiated an agreement.
Generally, the custom and practice of the relevant community or industry determine the scope of an implied license. For example, if you send a letter to a newspaper editor entitled "Dear Editor," under customary practice, the editor of the newspaper has an implied license to publish your letter in the newspaper. For more information about and examples of implied licenses in the Internet context, see Cyberspace Law for Non-Lawyers, Lesson 7 - Copyright 6.
Implied licenses may be important in situations where you hire a freelancer to create a work for you. Imagine, for example, that you hire a website designer to design your website. Neither of you knows much about copyright law, and you fail to agree (even orally) about who owns copyright to the designer's work. You would not own the copyright as a work made for hire because there is no written agreement (please see the Work Made for Hire section of the guide), but a court might still rule that you have an implied license to exploit the work for those uses reasonably within the contemplation of the designer at the time you both entered into the freelance arrangement (probably the right to reproduce and display the website, perhaps the right to create adaptations). Note that in this example, the web designer is the creator (and thus the owner) of the copyrighted work, and you are the person taking advantage of the implied license.
For another example, imagine that you prepare a weekly email newsletter that highlights your best postings for the week. This newsletter contains your copyrighted work (text, images, maybe video). If you email this to your subscribers, a court might find that you have granted them an implied license to share the newsletter with friends and colleagues through email forwarding.
As a general matter, it is a good idea to reduce a non-exclusive license arrangement to writing, just like an exclusive license or transfer. It helps you better protect your rights to the work, and allows you to structure your arrangement with licensees with greater clarity and precision. On the other hand, you might not want to bother users with a written license notice in the case like that of the email newsletter, so long as your subscribers' foreseeable uses don't particularly bother you.
Do I Have to Give or Receive Anything of Value to Make a Transfer or License Valid?In general contract law, the parties to a contract each have to give the other "consideration" in order to make the contract legally binding. "Consideration" is something that each party to a contract gives to the other party in exchange for that other party's promise or performance of the contract.
Transfers of rights under copyright, including exclusive licenses, do not require consideration in order to be valid. Therefore, while it is common for the transferee (the party obtaining the right or rights under copyright) to pay the copyright owner for the grant of rights, payment or other benefit is not required.
Nonexclusive licenses also do not require consideration in order to be valid. However, nonexclusive licenses are revocable (meaning the copyright owner can revoke the license at any time) in the absence of consideration. This means that, whether or not you set a fixed time limit for the duration of the non-exclusive license in the licensing agreement, you (as the copyright owner) can revoke the license at any point if you do not receive consideration for it. Conversely, if you (as the copyright owner) receive consideration in return for the grant of the license, then you cannot revoke the license unless you provide for revocation in the license agreement.
Note, however, that consideration for the grant of a license does not have to be something valuable, and it certainly does not have to be equivalent to the market value of the grant. Consideration is mostly a symbolic gesture. If the licensee gives up anything in exchange for the grant of the license, then that likely would qualify as consideration.
For works created after 1978, section 203 of the Copyright Act provides that the creator (or "author" in copyright terminology) of a work may terminate a transfer, exclusive, or non-exclusive license of any or all rights under copyright for that work during the five-year period:
To terminate a grant or license, you must serve notice of termination upon the grantee (the recipient of the transfer or license) or the grantee's successor in title (meaning the person or entity to whom the original grantee transfered his interest). The notice must be in writing and state the date of termination, which must fall within the five-year period outlined immediately above. You are required to serve the notice not less than two, nor more than ten, years before the termination date designated in the notice. Additionally, you need to file a copy of the notice with the Copyright Office prior to the termination date.
To be valid, a termination notice must comply with the form, content, and manner of service set out in the Copyright Regulations. You can find these regulations at 37 C.F.R. 201.10.
Joint Works, Works Made for Hire, and Deceased Authors
In case of a work of joint authorship, a grant executed by two or more joint authors may be terminated, pursuant to the section 203 of the Copyright Act, only if a majority of the joint authors who executed it agree to the termination. For more on works of joint authorship, see the Joint Authorship section.
When the creator of the work is deceased at the time of the five-year statutory period for termination discussed above, her successors in interest (surviving spouse and/or children; the executor, administrator, personal representative, or trustee in case there is no spouse or surviving children) may exercise the right of termination. The rules governing who owns what share of the termination interest and who must agree in order to effect termination are complex, and a lawyer's help will usually be necessary under these circumstances.
Works that qualify as works made for hire are not subject to termination by the employee or freelancer. For more on works made for hire, please see the Works for Hire section.
Note: Non-exclusive licenses granted without consideration can also be revoked at will, but it may be difficult to determine whether valid consideration has been granted. See the Creating a Written Contract to Transfer or License Rights Under Copyright section for details.
When you use someone else's work without their permission, you face the prospect of a lawsuit for copyright infringement. Luckily, this unappealing outcome is not inevitable. Some awareness about copyright law, a little investigation, and a bit of flexibility can help you avoid claims of infringement.
First, you should consider whether the material you plan to use is protected by copyright. Many things are not copyrightable, such as facts and ideas, and therefore you can use them without worrying about infringement. Additionally, even works that qualify for copyright protection will eventually fall into the public domain after a certain period of time. For more information on this topic, refer to the section on Works Not Covered By Copyright.
Second, if you've determined that the material you wish to use is protected by copyright, you should consider seeking the copyright owner's permission to use the work. You will first need to identify the copyright owner, and then request permission for your specific use. If you are told that you cannot use the copyrighted work, this doesn't necessarily preclude you from using the work. You will not lose the ability to assert that your use is a "fair use" even if the copyright owner refuses to give you permission to use his work. See the section on Getting Permission to Use the Work of Others for guidance on how to do this.
Third, the doctrine of fair use may make it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarship. Whether or not your use is lawful usually depends upon how different or "transformative" your use is from the original. Refer to the section on Fair Use for more information.
Fourth, rather than directly copy the work itself, you may decide to link to the material, if it is available online, is sufficient and thus avoid potential copyright infringment claims entirely. The section on Linking to Copyrighted Materials explores the legal issues that might arise from linking to or using a link to embed other online works.
Another issue you may face occurs when the work is protected by digital rights management systems (DRM) or some other technology that controls access to the work. You cannot circumvent these access controls without the permission of the owner of the copyright, and no fair use defense is available to you. We address these issues in the Circumventing Copyright Controls subsection.
If you are dealing with a work that contains a DRM system, or if the work is not in the public domain and you do not believe that the doctrine of fair use covers your use of the work, you will need the express and specific permission of the person who owns copyright in that material. We will discuss the process of getting permission to use someone's work from making informal requests to seeking formal licenses.
Finally, the section on Copyright Infringement goes through the elements of a copyright infringement claim and also discusses the intersection of plagiarism and infringement.
You may want to use or incorporate someone else's work into your own. While the works of others may be protected by copyright, there are a class of works that fall outside the scope of copyright law. The following categories of work are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice.
Additionally, even works that qualify for copyright protection fall into the public domain after a certain period of time.
You can use facts in your online work without the fear of liability because facts are not protected under copyright law. As we explain in the section on Copyrightable Subject Matter, copyright protection applies to "original works of authorship." Although the level of creativity required to be "original" is extremely low, facts do not have the requisite level of creativity. For example, baseball scores, telephone numbers, dates of birth, and the number of people at a protest are noncopyrightable facts.
However, there may be situations in which a compilation of facts may be protected if the creator of the original publication selected, coordinated, or arranged the facts in an original way. For example, a sports almanac may arrange baseball scores in a creative way, a genealogy chart may arrange birth dates in an original way, or a cookbook may arrange ingredients in a creative and original way as part of its recipes. In each of those instances, the creator of the work would have a copyright in the creative arrangement of the facts, but not the facts themselves.
You can use any work of the United States Government because copyright law does not cover such works. Works of the United States Government include:
However, note that copyright law may protect works created by others that the United States Government receives by assignment, bequest, or otherwise.
While federal copyright law does not expressly apply to the works of state governments, state laws are similarly uncopyrightable. See Tim Armstrong's analysis in Can States Copyright Their Statutes? for more information. However, be aware that Oregon recently asserted copyright ownership "in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law." See our blog post, Oregon Claims Copyright in Its Statutes -- Well, Sort Of, discussing the validity of Oregon's copyright claim.
Copyright protection only applies to "original works of authorship" that are "fixed in a tangible medium of expression." Consequently, if you attend an improvisational speech that has not been notated or recorded, you may publish the speech in your online work without fear of liability. (However, you should cite the speech in order to avoid the taint of plagiarism.)
Copyright does not cover ideas, concepts, and principles themselves, only the form in which they are expressed. For instance, merely coming up with an idea does not make you the copyright owner because you haven't actually expressed anything. You become the copyright owner only when you put that idea into "expression" through words (e.g., in a blog post) or other tangible form (e.g., in a video, a photograph, or a podcast).
For example, Einstein's theory of special relativity is not copyrightable because it is an idea (or concept or principle). However, Einstein's article, "On the Electrodynamics of Moving Bodies," in which he explained and expressed the theory, was copyrightable.
If you come across an idea/concept/principle, you can use it in your online work with out fear of liability as long as you do not use the form in which it is expressed (which may be copyrightable). However, you should consider citing to the source in order to avoid a claim of plagiarism.
In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.)
While copyright protection may not apply, be aware that trademark law protects certain words, short phrases, slogans, symbols, and designs. For example, trademark law protects the word "Apple," the slogan "Got Milk?" and the Nike symbol of the "swoosh." See the Trademark section for more information on using a trademark protected word, phrase, symbol, or other indicator that identifies the source or sponsorship of goods or services.
You can use any work in the public domain without obtaining permission of the copyright owner. A work falls into the public domain when the copyright term expires or, in the case of works published between 1923 and 1989, if the work lost copyright protection because the copyright owner neglected to take the necessary steps under then-applicable copyright law. Additionally, a copyright owner can directly dedicate a work to the public domain. This is done expressly, through language such as "Everything on this site to which we own copyright is hereby released into the public domain," or by using the Creative Commons Public Domain Dedication.
Determining whether any particular work is in the public domain is a complex task, and the answer often depends upon when the work was published, whether it was published with notice, and whether the copyright holder subsequently registered the work. However, there are some rules of thumb that will help you with this analysis:
If you want to go beyond these rules of thumb to understand more of the specifics, Cornell Law School has an excellent chart that shows when different types of works (published, unpublished, published outside the US) will fall into the public domain based on an analysis of pre- and post-1978 copyright law. Additionally, the Creative Commons' Podcasting Legal Guide has a terrific discussion on how to determine whether a work is in the public domain.
A word of caution about using public domain works. You should check whether a public domain work has already been incorporated into another work. Although the public domain portions of that new work are not protected, the author's new expressive content and selection and arrangement of the public domain work may be protected by copyright. Creative Commons' Podcasting Legal Guide gives two examples that illustrates this potential issue:
The policy behind copyright law is not simply to protect the rights of those who produce content, but to "promote the progress of science and useful arts." U.S. Const. Art. I, § 8, cl. 8. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.
Section 107 of the Copyright Act defines fair use as follows:
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- and the effect of the use upon the potential market for or value of the copyrighted work.
Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test.
1. Purpose and Character of Your Use
If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). Purposes such as these are often considered "in the public interest" and are favored by the courts over uses that merely seek to profit from another’s work. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004). When you put copyrighted material to new use, this furthers the goal of copyright to "promote the progress of science and useful arts."
In evaluating the purpose and character of your