Copyright is a topic with a lot of misconceptions and urban legends surrounding it.
This makes it both simple and complicated to understand at the same time.
Simple, because a fairly straightforward set of principles governs how it works; complicated, because there are a number of contradictory, conflicting, and confusing ideas to deal with.
Introduction: What Is Copyright?
This article will deal with all of those in subsequent sections, but for now let's focus on what copyright is fundamentally.
- Copyright is the legal and exclusive right to copy, or permit to be copied, some specific work of art.
- If you own the copyright on something, someone else cannot make a copy of it without your permission.
- Copyright usually originates with the creator of a work, but can be sold, traded, or inherited by others.
Why You Should Care
If you run a website you may have to deal with copyright law and related issues from two different sides: as a producer and as a consumer.
If you blog, take photographs, publish music, or otherwise produce copyrightable content, you legally own that content. Whether you want to let other people use it or not is your decision, and there are things you need to know and do in either case.
If you want to use other people's content, you have to understand permissions and licensing, what is legal and what isn't.
This dual-role of producer and consumer is somewhat unique in history. It is a relatively recent phenomenon that regular people published their own writing, music, video, and other artwork.
Copyright law, and the practical applications of it, have been racing to catch up with this new world. Not everything is settled yet, but there are enough firm principles that you can protect yourself if you take the time to learn about it.
This article will walk you through the most important issues concerning copyright law and its practical applications to you as a webmaster.
The History and Philosophy of Copyright
This section provides a brief overview of the historical context and philosophical foundation of modern copyright law. If you're just looking for the practical details, you can skip it. But knowing why the law is how it is may help you understand it.
Permission to Publish
Modern copyright law is usually talked about as if it is a protection for authors against others "stealing" and profiting from their work without the original creator being rewarded.
But the original conception was quite a bit different.
Copyright developed originally as a privilege granted to approved printers of books, who were given an exclusive license to print some particular work. It was a whitelist form of censorship: no one could print anything unless they had been granted the copyright to do so.
This was at a time when sovereign rights (the rights of rulers) were considered to be more important than the rights of individuals. There was no conception of "Freedom of Speech" as we know it — you literally had to have permission to print something.
Freedom of Speech
By the 18th century, and especially after the American Revolution, the conception of Free Speech had become a mostly accepted fact.
Copyright law could no longer be about granting special permission to print something, because the assumption of Free Speech is that anyone is free to print anything.
Rather than a license to print something you otherwise wouldn't be allowed to, copyright became a right to stop other people from printing things they otherwise would be allowed to.
In an era of restriction, copyright was a permission; in an era of freedom, it became a restriction.
The reason for copyright changed also. Rather than being a form of censorship, the idea became an economic incentive to create.
The idea behind modern copyright law is that if artists can control who is allowed to copy their creations, then artists can charge for that permission and make money.
Intellectual Property and Ownership
So the situation is that without copyright, but with Freedom of Speech, anyone would be able to copy anything they want, even if someone else had created it.
This might make it difficult for artists to get paid for their work, which might mean that there is less art created (because artists are having to do other things to pay the bills).
This is the situation modern copyright seeks to correct, and it does so by assigning the exclusive right to make use of a work to the one who created it. It is meant to be a necessary and justified infringement on Freedom of Speech.
But a secondary cultural effect occurred because of this solution. Because copyright grants exclusive rights to works created by artists, the works themselves came to be regarded as a form of property.
Hence the term "intellectual property."
Strictly speaking, the only property at issue in intellectual property is a legal right to produce something.
This is an asset in a financial sense, so it can be thought of as property. But the metaphor to real property is so strong that people often talk about copyright infringement as a form of stealing.
Why Does This Matter?
The common shorthand of referring to copyright as "ownership" and infringement as "stealing," while possibly effective as a deterrent, gives a false impression of the nature of copyright law.
Having a proper conception of copyright law helps make certain practical applications of it — especially fair use, for example — easier to understand.
How to Get a Copyright and What Registration Is
This section explains how copyright protection is obtained, how to register a copyright, and the benefits of copyright registration. Alternative registration options are also considered.
Copyright is Automatic
One of the most common misunderstandings of copyright is how to get it.
There is a persistent myth that copyright is something you apply for or obtain from a government agency. One of the weirder compliments you may get from people if they like your artwork or writing is, "You should be sure to get a copyright on that!"
This is all wrong.
Copyright happens automatically, the minute you set something into a "fixed form" — even if that fixed form is pen scratches on a legal pad. You automatically own the copyright to any creative work of art you produce, the minute you produce it.
That © Sign
Another misconception is that you have to put the copyright symbol on something, or else it isn't copyrighted. This used to be true, but is not the case any longer.
In a related myth, some people think that you can't use the copyright symbol unless you have registered the copyright. Also untrue.
The copyright symbol carries no legal weight and has no magical effect on the status of your copyright. Forgetting to use it does not cause you to lose your rights related to something you created.
The purpose of the copyright symbol and dated copyright notice is to inform people that a piece of art is copyrighted, who owns that copyright, and under what terms is the present copy being made available.
Copyright notices are not required for any reason, but they are certainly useful and ought to be included.
By the way, the best way to display the circle-C copyright symbol is to type
© into your HTML.
This should be followed by the year of creation and the name of the current copyright holder (usually the creator). If you want to add additional notices (such as "All rights reserved" or "Creative Commons release,") do so after the name.
Copyright happens automatically, so you don't need to register a copyright. However, you may wish to do so.
Registering a copyright allows you to do three things:
- Legally establish yourself as the copyright owner of the work.
- Legally establish the date of creation.
- Take legal action against someone who infringes on your copyright.
That last one is key. In most jurisdictions, you cannot sue someone for infringing your copyright unless your copyright is registered.
If you expect to be suing people for infringement, you may want to register your copyright. Likewise, if you have no other way to prove the date of your creation (which may be the case for unpublished works), registration may be a good idea.
Registration of a copyright does not need to be immediate. If you can definitively establish the date of your authorship by other means, you can (in theory) wait to register your copyright until there is a reason to sue (that is, once someone has begun infringing on your work).
However, the processing time for copyright registration filings can be up to a year long, so this may not be a feasible option.
Alternative Copyright Registration
The most important thing to say about alternative forms of copyright registration is that there are no legitimate alternate forms of copyright registration.
There are a handful of companies that bill themselves as if they provide some form of copyright protection, but these are not substitutes for actual copyright registration. Two in particular stand-out as good examples of this:
Myows allows you to upload works, which can help establish your authorship and the date of creation. They search the internet constantly, looking for possible violations of your copyright, and report this information to you.
They also provide assistance sending Cease-and-Desist and Takedown notices, and a handful of other similar DIY legal services. They aren't a substitute for registration, but they do a provide a potentially valuable service.
Copyright Registration Service / Intellectual Property Rights Office
The CRS, which is supposedly a service provided by the IPRO, also provides its own form of work registration.However they apparently provide no other services.
Their marketing implies that your work is protected through registration, but they provide no indication that they actually register the copyright on your behalf with any government of any country.
Moreover, their fees are much higher than actual copyright registration in the US, and their supposed registration is temporary (so they can charge more for renewals). We recommend you avoid them.
Note: One reason these alternative registration services exist is because people think it is too expensive or too difficult to register a copyright.
It is not.
As of the time of this writing, the fee for registering a work online is as little as $35 (and it's been that for a long while). There's really nothing to be saved by using an alternate registration service.
Poor Man's Copyright
This is another urban legend that won't seem to go away.
There is a widespread belief that you can effectively obtain a copyright by sending yourself a copy of your work via registered mail.
The idea is that you have proof that the contents of the envelope existed at the time you sent them, and this can help establish your ownership over the work.
The US Copyright office is very clear that mailing a copy of your work to yourself has no legal effect.
(It seems reasonable to assume that this could still be used to prove a date-based claim to copyright ownership, but the safer route would be just going ahead and registering.)
Registration Is Optional
Copyright is granted the moment you create something and set it down in a "fixed and tangible" form.
You do not need to register a copyright to have one — you have it automatically. However, if you expect to sue someone for infringement, you will need to have your copyright registered. Alternative forms of copyright registration are not recommended.
What Can Be Copyrighted and What Can't Be
This section discusses what types of material is eligible for copyright protection.
Types of Works
Copyright protection extends to works of artistic creation. This includes:
- Music — songs, arrangements, scores, recordings, etc
- Writing — novels, poems, stories, journalism, plays, blog posts, etc
- Visual art — painting, drawing, photography, sculpture, etc
- Dance choreography
- Computer software
Fixed and Tangible
Copyright protection is only available for works that have been set into a "fixed and tangible" form. This means that you can't copyright an idea or a concept, only its tangible expression.
For example, let's imagine you have a brilliant idea for a movie — Zombie Stockbrokers from Outer Space. The idea itself is not eligible for copyright protection.
You can write a screenplay, and that screenplay is protected by copyright. No one else can copy or produce your movie without your permission
But the underlying idea still isn't under copyright protection. If someone else wants to write a screenplay about Undead Financial Planners from Alpha Centauri, you can't sue them. You own the work, not the idea.
Other Types of Protection
Some types of intellectual property are protected through means other than copyright, namely Trademark and Patent.
- Trademark covers words, names, symbols, designs, slogans, logos, or combinations of such that identify commercial entities. A picture or a set of words is eligible for copyright if it is primarily an artistic, not a functional, work. It is a Trademark if it is used to identify a business.
- Patent covers inventions, both physical and virtual (software), as well as business processes.
The laws governing Trademark and Patents, and the processes for registering them, are very different than those for Copyright.
Computer Software — Yes
Computer software is an interesting point. There is a complex intersection of copyright law and patent law that covers computer software.
Broadly speaking, novel and non-obvious software technologies may be patented, while a software application as a whole is subject to copyright.
This is a tricky field where case law is still developing, so if you think you have patentable software invention, you should talk to a Patent Lawyer.
(Interestingly, the bar for copyright protection is much lower than the bar for patents, but copyright offers potentially more protection for a longer period of time.)
Architecture — Yes
Architecture seems like something that would qualify for a patent, but only the individual inventions associated with it are. Architectural designs themselves are covered by copyright.
This is actually a somewhat new rule, and only applies to buildings designed after 1990.
It is worth noting that even though architectural designs are under copyright protection, photographs of them (taken from a publicly accessible location) are not considered an infringement of copyright.
Recipes — No
Recipes themselves, including lists of ingredients and basic instructions for preparation, are not eligible for copyright protection.
A detailed editorial about your experience making a dish and eating it, as well as any photos you take during the process, are eligible for copyright, though.
Fashion Design — No
Clothing design, even though it is considered a form of artistic expression by the people who practice it, continues to be considered a utilitarian product and not eligible for copyright protection.
Fabric prints are eligible for protection, and novel manufacturing methods may be eligible for a patent.
Jokes — No
Jokes are not eligible for copyright protection, because the essence of a joke is the idea itself, and ideas cannot be protected by copyright.
Humorous stories and monologues are copyrightable works, however. This may partly explain why comedians tend toward longer stories in their comedy rather than simple one-liners.
Old works you found — Maybe, maybe not
If you find an old diary at an antique store, you don't own the contents just because you own the book that holds them.
If the author is still alive, he or she retains the copyright on the work. If deceased, and the work is recent enough to still be under copyright, it is owned by the heirs to the estate.
This applies even if you cannot find the heirs or don't know who they are.
If you find an old journal in your mother's house after she died, and you are the heir to the estate, the copyright on the contents does indeed belong to you.
Boat Hull Designs — Yes
Oddly specific, but you might want to know that as of 1999, the designs of boat hulls are protected under copyright law.
Only works of artistic — not utilitarian — expression are eligible for copyright protection. Works must be set down in a fixed and tangible format, which means that ideas themselves are not protected.
If something is used primarily to identify a brand or organization, it is protected by trademark, not copyright. Inventions are protected by patents, not copyright.