Everybody knows that January 1st is New Year’s Day, but did you know that January 1st is Copyright Law Day as well? Like New Year’s Day, Copyright Law Day is an international observance, intended to celebrate the laws that protect the efforts of authors of all forms of tangible medium: books, artwork, sound recordings, films, online content, video games, etc. In the United States, the root of copyright protection lies in the Constitution itself; Article I, Section 8, Clause 8 of the Constitution, states that Congress has the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This mandate incentivizes the creation of works in service of the greater public good.
Do you have a list of YouTube channels that you subscribe to? Do you have a favorite blog? Do you “follow” social media celebrities on Instagram? In these modern times, the rapid advance of technology continues to empower increasing numbers of people to communicate with one another in previously unexpected ways. The days of email or texts seems quaint now in comparison to the communication landscape today; social media has turned everything into a “platform” for communication: YouTube, Tumblr, Twitch, Snapchat, Instagram, Facebook. All of these types of services, (and those that will be invented in the future), allow people to “create”. The term “Creator” refers to those who use new technologies to create consumable content, but what they all have in common is that they are all “authors” of copyrightable works, and thus must rely on the powers of copyright law to protect their works.
In honor of Copyright Law Day, here’s ten more interesting things you probably didn’t know about copyrights, in no particular order:
- Copyright protection in the United States exists at the moment a work is “fixed” in a tangible medium: a draft of a book, a musical recording, a YouTube video. It doesn’t need to be “published” to the public. You don’t need to register a work with the U.S. Copyright Office, but doing so provides important rights, including the right to sue in court for increased damages, as well as obtaining attorney’s fees. The Copyright Office website (www.copyright.gov) offers a lot of user-friendly information about the registration process.
- In the United States, copyrighted works are generally entitled to protection for the life of the author, plus seventy years. Recall the cliché of the “starving artist” who dies before his art becomes famous? This duration allows for the author’s inheritors to reap a fair share of the profits of the author’s efforts, and recognizes the fact that authors sometimes do not live to see or enjoy the fruits of their labor.
- Copyright extends to protect derivative works. Derivative works are works that are based on a pre-existing work. Think fan fiction, movie versions of books, etc. That excellent spec script you wrote for Game of Thrones that you’re hoping to shop to HBO? That homemade Star Wars movie sequel you self-financed and filmed that you want to screen at your local theatre? Copyright issues are one of many reasons why such efforts will not likely be successful.
- Augmented reality and virtual reality are a new frontier in copyright. How does copyright impact those crazy Snapchat selfies you create, or those Instagram filters? How does copyright impact the industrial models and designs that you create in a virtual space? The issues are too numerous and complicated to be discussed, but suffice it to say that they affect everyone who works or plays in those spaces.
- Copyright doesn’t protect ideas, facts, or titles. Anybody can write a book about young wizards, and there are certain genre tropes with wizards that we expect: wands, robes, pointy hats, etc. But only J.K. Rowling can write a book about a young wizard named Harry Potter, with a distinctive scar on his forehead, his well-known cohorts and their nemeses.
- Registering a copyrighted work is reasonably affordable. Unlike patents, where the registration process can cost thousands of dollars and the assistance of a patent attorney is essential, the copyright registration process is intended to be able to be done by a layperson, and the filing fee is typically between $35 and $55.
- Works don’t need to have the “©” or the author’s name listed to be entitled to copyright protection. The best practice is to use them if feasible. Just because a work doesn’t bear the “©” symbol doesn’t mean that it is in the public domain.
- Copying and pasting an image online is likely to trigger copyright issues. Doing so and simply attributing the author is not a defense or excuse to copyright infringement. Do a search for any copyrighted work on YouTube (ex. music, tv show clip), and you will see scores of potential infringement and the poster’s attempt to avoid infringement by attributing the actual owner.
- Not profiting from infringement is not a defense. “But I didn’t make any money from it and did it for free!” said the above-referenced filmmaker of the Star Wars fan film. That may impact the damages paid to Disney/Lucasfilm, but it won’t allow the filmmaker to avoid an infringement claim.
- The concept of “Fair use” is more complicated than you might think. Fair use is a copyright defense (not an excuse or exception), that allows a copyrighted work (usually a small portion) to be reproduced. There is no clear-cut rule for defining what constitutes fair use, but there are a number of factors that must be considered, including the impact on the market for the copyrighted work, purpose or intent of the use (commercial or educational), etc. The point is not to assume that your intended use automatically falls within the fair use defense, without consulting an attorney.
I hope that these ten things help remind you that copyright law, as antiquated as it may sometimes seem, remains relevant to ensuring that content creators are properly incentivized and protected in creating the content that we all enjoy. Did these ten things raise other copyright related questions or concerns you have? If so, please don’t hesitate to contact us!
Article written by: Partner, David K. Hou