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Copyright 101: learn how to protect your creative works.

What: Copyrights protect original works of authorship fixed in a tangible medium of expression and this really speaks to what kinds of things are “eligible” for copyright protection. But to put it more simply, copyrights protect the expression of ideas. If we want to have a firm grasp of what copyrights really are, we’re going to need to filter out some of the legalese in that first sentence; what does it mean in plain English?

Original” is ascribed it’s plain and ordinary meaning and can be defined as “present or existing from the beginning.” Another more suitable definition, at least for our purposes is “created directly and personally by a particular artist; not a copy or imitation.” Now, with this definition in mind, let’s take a look at the term “Work.”

The copyright statute provides a list of items and types of works that are eligible for copyright protection[1]. There are eight distinct types of works: (1) literary works (2) musical works (3) dramatic works (4) choreographic works (5) pictorial, graphic, and sculptural works (6) motion pictures and audiovisual works (7) sound recordings (8) architectural works. At this point I should note that it is possible that there could be multiple copyrights associated with one particular piece of work. Think of your favorite song. There is the actual sheet music or musical notes that would possess its own copyright as a “musical work.” There are the song lyrics that could be considered a “musical” or “literary work” (or both) depending on who you ask. And finally, there is the person recording the song in the studio and that recording would also have its own distinct copyright as a “sound recording.” What about performing the song live at a concert? Yes, that performance would have its own distinct copyright. Another possibility is that there could be multiple works that together form your favorite song. If person A wrote the music, person B wrote the lyrics, and person C sang the song in the recording studio, each of these persons would be considered the “author” of their respective contributions that come together in the form of your favorite song. While it may seem pretty obvious as to what an author is, “who” an author is or can be is a different question which we will address further down in this post.

Fixed in a tangible medium of expression” is also defined in the statute. “Fixed” essentially means created. A work is fixed when “its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”[2] In other words, as soon as I make the last stroke of my landscape oil painting, its fixed. As soon as I chisel out the last stripe of my marble tiger sculpture, its fixed. But what about that last part pertaining to audio visual performances? According to the statute, the play you are watching isn’t fixed unless it is simultaneously being recorded in some form; so there needs to be a video or audio recording of it before it can be protected by copyright. The legal definition also requires that a work be fixed “by or under the authority of the author.” So it’s entirely possible that a person reading my mystery novel could simply re-write it word for word and sell it for their own monetary benefit but doing so without my authorization would mean that they have infringed my copyright; they have committed copyright infringement.

So assuming that all of the above criteria are met, what exact bundle of rights does the copyright holder[3] receive? The copyright holder may reproduce, publicly display, publicly perform, distribute, and adapt the copyrighted work.[4] With respect to adaption, this is also referred to as the right to “prepare derivative works.” Think of your favorite song. Now think of that song remixed with another one of your favorite artists; this is a derivative work to the extent that the remix is an adaptation of the original song.

Where: Not unlike patents, copyrights can be registered and enforced on a jurisdictional basis. In the United States, the US Copyright Office manages all copyright registration matters; no surprise that other countries have their own copyright offices. Unlike patents, however, there is no mechanism for international registration/application of copyrights. Recall that an international patent application (via the Patent Cooperation Treaty) can be filed before deciding in which of the international countries (jurisdiction) the applicant would like to pursue exclusive rights. While there is no counterpart mechanism for copyright registration, most countries do offer protection for foreign works under certain conditions and these protections have been effectively streamlined by two international copyright agreements known as the Universal Copyright Convention and the Berne Convention.

Who: Typically, the person(s) who created the work is the author and can therefore pursue copyright protection and registration. But what about works created by authors for their employers? These types of works are referred to as “works made for hire (WMFH).” The author of a WMFH is the person or entity who commissions the work. It is typical of most employment agreements/policies that the employee “assign,” or transfer their ownership as authors or inventors to their employer for works or inventions made during the course of their employment. The same can be said for artistic works that are commissioned. If I hire a world renowned sculptor to create a sculpture of a unicorn for my front lawn, I would personally be the author and not the sculptor assuming that the unicorn sculpture was indeed a WMFH.[5] What about animals? Can they be authors? In 2015, PETA filed a lawsuit on behalf of a macaque monkey who happened to take a few selfies on a nature photographer’s camera that was left onsite overnight; asserting that the macaque, Naruto, was the author of the photograph and not the nature photographer who left the camera overnight.[6]  Earlier this year, a pair of Emperor Penguins took a joint selfie video but so far no legal action has been taken on the penguins’ behalves and it is believed that this is due to the fact that the camera was already rolling whereas Naruto actually took his own snapshot[7]. Naruto’s case settled out of court but it will be interesting to see if PETA takes another bite at the apple in an attempt to pave the road for animals as authors and copyright owners.

How, When, and Why: A copyright vests as soon as the work is fixed in a tangible medium of expression and this is a very important distinction from the world of patents. An invention is created but the patent rights must be applied for and ultimately negotiated with the patent office. A work is created and, concurrently, the copyright is vested in the author.  So what’s the point of copyright registration? Registering the copyright to a work affords the copyright holder a number of benefits. For starters, it puts the public on notice that the work is protected by copyright and that further permissions or licenses may be required if someone intends to further exploit the work. The biggest benefit afforded to the holder of registered copyright is enforcement. The copyright statute explicitly prohibits bringing a lawsuit for copyright infringement without federal registration.[8] Registration also entitles the plaintiff to pursue attorneys’ fees and statutory damages so long as the effective date of copyright registration occurs on the earlier of: (a) 3 months after the first publication; or (b) 1 month after the copyright holder has learned of the infringement. As you can see, registration is well worth these benefits and only requires that a copy of the work be submitted to the Copyright Office along with the applicable registration fees. However, registration shouldn’t always be the “go-to” strategy for protecting copyrightable IP as the registered work will be published in the Library of Congress. Let’s say your work is a new piece of software that has highly lucrative commercial potential. Do you really want to publish the source code for the benefit of your competitors? While the law allows for the possibility of submitting a redacted copy of a work for registration, a savvy coder or software engineer can probably fill-in the gaps of the redacted pieces of source code with their own original created and functionally equivalent source code. Thus, registration should be considered on a case-by-case basis for copyrightable material and will highly depend on the product, business, or industry that is looking to leverage the copyrightable material for commercial and/or competitive purposes. Like patents, copyrights can be highly lucrative for business ventures of all phases so long as they are managed appropriately and deployed in strategic fashion.

I’d love to have feedback or questions on the topic of copyrights. Let me know if I can add insights and advice, what you want to know more about and any challenges you’re having.

I look forward to hearing from you!

[1] 17 U.S.C § 102

[2] 17 U.S.C § 101

[3] Like other forms of IP, copyrights are transferrable. The copyright holder (owner) may not always be the original author.

[4] 17 U.S.C § 106

[5] Works made for hire are also defined 17 U.S.C § 101. With respect to commissioned works, the parties must expressly agree in writing that the work being created is such.

[6] https://www.npr.org/sections/thetwo-way/2017/09/12/550417823/-animal-rights-advocates-photographer-compromise-over-ownership-of-monkey-selfie

[7] https://www.npr.org/sections/thetwo-way/2018/03/09/592232204/penguins-mug-for-camera-take-a-pretty-great-selfie

[8] 17 U.S.C § 411