What is Copyright? Everything You Need to Know

U.S. copyright law applies to any work as soon as it’s created and fixed in a tangible form, whether registered or not. It grants a set of exclusive rights to a work’s owner and protects the owner and work regarding issues of reproduction, distribution and adaptation. For actual protection of these rights in court, the creator must register work with the U.S. Copyright Office, which requires forms specific to the type of material being copyrighted and can incur certain fees.

Copyrights are different from trademarks, which largely concern branding, and also from patents, which protect inventions. A work doesn’t need to be published or publicly available to be subject to copyright, but it must be expressed in a discrete, tangible form and must be original. Though there are exceptions, copyright protection usually lasts for 70 years past the death of the work’s creator, after which the copyright is either renewed by the work’s successive or purchasing owner or the work enters the public domain.

Examples of Copyright

The U.S. copyright office provides six categories for types of work that can be registered for copyright:

• Literary works
• Performing arts
• Visual arts
• Motion pictures
• Photographs
• “Other digital content,” such as computer programs, apps and databases

Examples from these categories include familiar types of creative works such as books, songs and paintings, though copyright can also extend to less obvious subjects such as architecture, clothing and websites. More detailed information on what material qualifies for copyright can be found in this chapter on copyrightable authorship from the U.S. Copyright Office’s compendium of practices.

Original Works

An original work of authorship covered under copyright can be a film, piece of music, dance, book, design, artwork and more. It’s something that you produce with a sufficient amount of creativity. Things like titles, random phrases or names can’t be copyrighted because they are not original works of authorship.

Fixed Works

To be eligible for copyright, the original work needs to be fixed. This means the work has been recorded in some way so it can be reproduced and viewed in a more permanent way.

Once the work is fixed, that means you also have the right to make derivative works based on the original. You can also produce and distribute copies, such as selling T-shirts with your art on them.

Inherent Copyright vs. Copyright Registration

When you produce an original work of authorship, you are inherently the copyright owner. However, to get the legal protection of copyright, you have to register for the copyright. There’s a simple application process to get a copyright, and you have to pay a small fee.

If you have an original work of authorship produced after the beginning of 1978, it’s eligible for current copyright law. The copyright term covers the entirety of the author’s life plus 70 years after their death. If the work has more than one author, the term extends 70 years after the last surviving author dies.

An original work that is “work for hire” or attached to a pseudonym has a different copyright period: 95 years from publication or 120 years from creation. It’s important to get familiar with the copyright terms when you register for one.

When you have a copyright on your original work, you can protect your work from being reproduced without permission. Many websites like Twitter and Google allow you to submit copyright claims so they’re not complicit in reproducing copyrighted material.

If someone is using your original words, photos, designs or something else and profiting from them, and you have a copyright, you have the legal protection on your side. You might be able to recoup lost income from someone using your copyrighted material without your permission as well. In this case, consulting a lawyer familiar with copyright and intellectual property is the best thing to do.

Copyright infringement occurs when the violating party exercises any of the creator’s exclusive rights to the work without permission. This includes all manners of distribution (selling, broadcasting, performing, etc.), adaptation or other copying of the work. Infringement can occur whether or not the violating party seeks monetary gain through the use of the material in question, though any argument against copyright infringement is usually considered stronger without a profit motive.

Examples of Copyright Infringement

• Illegally downloading music files
• Uploading someone else’s copyrighted material to an accessible web page
• Downloading licensed software from an unauthorized site
• Modifying and reproducing someone else’s creative work without making significant changes
• Recording a movie in a theater
• Distributing a recording of a TV show or radio broadcast
• Including someone else’s photographs on a website without permission
• Publishing or posting a video with a copyrighted song to a company website
• Selling merchandise that includes copyrighted images, text or logos

Permitted Use of Copyrighted Material

Copyrighted or once-copyrighted material may sometimes be used without infringement in certain situations—at least to an extent. These uses tend to fall into one or more categories:

Direct Licensing

This is the most surefire way to use copyrighted material without infringement. A prospective user may find existing general licensing terms to follow or alternatively can contact the copyright owner with a request for permission. The copyright owner maintains copyright no matter what licenses he or she grants (generally or otherwise) and can base permission on certain conditions, including payment.

Fair Use

This legal doctrine permits the use of copyrighted material under certain conditions, depending on both the nature of the original work and the nature of the secondary use. As with other aspects of copyright law, its exact scope is defined largely by judicial precedent. Unlicensed use of copyrighted material can be considered fair use if:

• it’s done for nonprofit, educational purposes
• it transforms the original work enough to change its purpose and character
• it uses only a limited portion of the original work
• it does not harm the copyright’s value

Fair use often includes instances where copyrighted material is referenced, quoted or sampled within a larger work for the purpose of reporting, parodying or providing criticism or commentary. These are not hard and fast rules but rather established guidelines that courts will use to evaluate individual claims.

Creative Commons

A Creative Commons license is granted by a copyright owner to permit public use of a copyrighted work under specific conditions. Terms specific to the license stipulate how the material can be fairly used and for what purposes.

Public Domain

Works in the “public domain” either failed to meet the requirements for protection under IP laws such as copyright, have outlived the duration of a copyright or were deliberately placed in the public domain by a work’s owner or creator. These works are considered to be publicly owned and fair game for use without restriction. The catch is that collections of public domain material such as a literary compilation or photo journal may themselves be subject to copyright.

In order to bring a claim of copyright violation to court, a plaintiff must first have proof that they are the rightful owner of the material in question—which is usually supplied by their work’s copyright registration. They must then provide proof of actions that infringed upon rights unique to them as the copyright holder. Finally, there must also be proof the defendant’s actions exceed standards of fair use. A valid claim does not require proof that the plaintiff suffered monetary harm as a result of these actions.

Copyright Enforcement

U.S. copyright law is based heavily on judicial precedent and case law. Enforcement is typically handled through claims brought to civil court. While states may have their own laws governing copyright, these are generally overshadowed by federal law.

Copyright enforcement is easier when the plaintiff has registered the copyright shortly after its creation and when clear documentation of all other relevant information (i.e., a licensing agreement) exists. Willful infringement or an established profit motive can certainly damage a defendant in court, but neither must be proved to enforce a copyright. Creators may seek to enforce “moral rights” through copyright law such as the “right of attribution” or the “right of integrity,” which encompass the rights to claim authorship and prevent distortions of a work.

A copyright is harder to enforce when the work in question has little to no creative or expressive element, when its secondary use is limited to a small portion of the original work or when similarities between the plaintiff and defendant’s works appear coincidental. Defendants in a copyright case often argue the nature of their use follows fair use standards. Otherwise, the defendant assumes the burden of proof for arguing against the copyright’s validity.

There are certain times when copyright issues aren’t addressed through a traditional federal court process. As described in the section below, online copyrighted material is routinely protected from dissemination without any litigation at all by internet service providers. For cases of infringement involving less than $30,000, the U.S. Copyright Office is developing a small claims process under the direction of Congress on the premise that the cost of defending a copyright in federal court can be prohibitively expensive for individuals and small businesses. This Copyright Claims Board was scheduled to begin hearing claims by the spring of 2022 but as of publication has yet to open.

Penalties for Copyright Infringement

Courts intervene in copyright cases in several ways. One common goal of copyright litigation is an injunction preventing any further violation of a copyright by the defendant. A court can even order the seizure of infringing materials to prevent further proliferation.

Plaintiffs also typically seek monetary compensation. If successful, they stand to recover for damages such as lost profits and for statutory damages of up to $30,000 if certain conditions are met. They can also be entitled to compensation for legal fees, and stand to receive significantly increased compensation if they can prove infringement was committed willfully. It’s possible for certain willful infringement to even lead to criminal penalties, including up to five years of prison.

Copyright Infringement and Digital Media

The rise of the internet in recent decades has created growing challenges for the protection of intellectual property. Online content alleged to be in violation of a copyright is addressed in the U.S. by the Digital Millennium Copyright Act of 1998 (DMCA). The bill brings the United States into agreement with international copyright treaties concerning rights to digital media and other online assets.

The DMCA lays out a procedure for removing online material found to be in violation of a copyright without going to court. This starts by sending a notice to the violator’s internet service provider (ISP) or business that hosts web pages online such as Comcast, Google, WordPress, etc. Many ISPs have their own forms for submitting a takedown request over copyright infringement, but if they don’t, copyright.gov offers information on what a notice must contain.

If it’s not clear which an offending website’s ISP is, a “WHOIS search” on lookup tools such as icann.org or who.is can help. Creators can also report violations to Google to combat copyrighted material’s presence in search results.