Copyright 101 for Businesses and Artists

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Introduction

You’ve created something original – a painting, a book, a manual, a graphic design, etc. – now what?  Whether you are an artist or a business owner, you have big plans for this original work, but you are not sure how best to protect the fruit of your hard work so that competitors do not use your work without permission or take credit for it.  This article will explain the basic copyright rights you currently have in your original work and how to best protect this asset.  

What is Copyright?

U.S. federal law provides copyright protection for original works of authorship from the moment the work is created in a fixed, tangible form. This means that if the work is independently created, has a minimal degree of creativity, and is written down, recorded or somehow preserved, it has immediate copyright protection.  As the old adage goes: as soon as your pen lifts from the paper, you have a copyright in the work you’ve created. 

What Works Are Protected?

A non-exhaustive list of works that can be protected include:

  • Literary works (books, manuals, etc.)
  • Musical works
  • Dramatic works
  • Choreography
  • Visual art (paintings, sculptures, drawings, diagrams, graphics, etc.)
  • Movies and other audiovisual works
  • Sound recordings
  • Architectural works

What Is Not Protected?

There are certain creations that are not protected by copyright law.  For instance, ideas are not copyrightable because they are not in a fixed, tangible form.  For example, if you have an idea for a new novel, the idea is not protected.  However, once you have expressed the idea in a fixed, tangible form and have written the new novel, it is protected by copyright law.  

Other items which are not protected include: titles, names, short phrases, and slogans.  These may be eligible for protection as trademarks.  For more information about trademarks, see this recent article here.

How Can I Protect My Original Work?

A copyright in an original work of authorship exists automatically once it is in a fixed, tangible form.  However, as the owner of this copyright, you can take steps to enhance its protection by registering the original work with the U.S. Copyright Office.

While registering your work is not mandatory, it is necessary if you wish to enforce your exclusive rights to the copyright through legal action.  Thus, we recommend registering any work in which the public will have access to the work.  Once the public has access to the work, it is more likely that an unauthorized user will infringe on your rights and you will need the full legal protections of registration.

Why Should I Consider Registration?

Here are some benefits to registering your original work with the U.S. Copyright Office:

  • Validity: Registration establishes evidence of the validity of the copyright and the information stated in the certificate when the registration is made before or within five years of publication.
  • Notice: Registration places the public on notice of your rights in your original work.  This can be very helpful in the event you must enforce your rights against someone who is using your copyrighted work without your permission.
  • Legal Action: Registration is a requirement if you wish to pursue legal action against an unauthorized user who is infringing on your rights.  Additionally, registration means you may receive statutory damages and attorneys’ fees, if you are successful in court.  Statutory damages are damages awarded without the need to prove actual loss.  Even if you wish to avoid court, this can be powerful leverage when attempting to negotiate a settlement with an opponent.

How Do I Create a Copyright Notice?

A copyright notice is a statement placed on the work which notifies the public that a copyright owner is claiming ownership of the work.  A copyright notice is not mandatory, but it is recommended.

A copyright notice consists of the following:

  • The copyright symbol “©”
  • The year of first publication or, if the work is unpublished, the year it was created
  • The name of the copyright owner

If William Shakespeare was alive and published Romeo and Juliet today, he would provide the following notice on the play: © 2019 William Shakespeare

This notice should be placed on the work to ensure that the public knows that the author is claiming copyright ownership.

Conclusion

Whether you are a business owner or an artist, you may have valuable copyrights which, in order to obtain effective legal protection, should be registered with the U.S. Copyright Office.  By registering your work, you may take legal action against unauthorized use of the work and are defending your right to ownership.  Without registering your work, you run the risk of someone claiming your work as theirs and losing valuable legal remedies.

If you wish to discuss your original works or any other intellectual property concerns, please contact David B. Billing or Laura Lamansky, the authors of this article, or any of the other attorneys in the Intellectual Property and Entertainment Law practice team of Stafford Rosenbaum LLP. 

Law clerk Joseph S. Beckmann assisted in researching and writing this article.