The Cyberlaw Guide to Protest Art: Copyright Part 1 — What It Is and What It Protects (and Doesn’t)

This is the Copyright section of the Cyberlaw Guide to Protest Art. It covers what copyright protects (and what it doesn’t) and how to deal with copyrighted works. To get an overview of the complete Guide, visit the Roadmap, or link to the other sections here:

  • Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
  • Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
  • Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
  • Rights of privacy and publicity: legal rights of privacy and publicity, which are implicated when protest art features real people
  • Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

What Is (and Isn’t) Protected by Copyright?

Most people are familiar with the term “copyright,” but there are a lot of misconceptions about what it is and what it protects. Some of these misconceptions come from how the law has changed over the years, while others come from people who are promoting their own viewpoints — or selling their goods or services — rather than giving an unbiased representation of the law. Let’s start at the beginning.

What is copyright?

Copyright protects original intellectual and artistic expression in various genres, including:

  • Writing (prose and poetry, fiction and nonfiction)
  • Music
  • Visual work (drawings, paintings, photographs, graphic design, sculptures)
  • Film and video¹

When we say copyright protects, we mean that it gives owners certain exclusive rights. The copyright owner alone can copy, sell, lend, display, or perform a copyrighted work or make a “derivative work” from it.² Anyone else who wants to use that work has to get the owner’s permission to do so. If someone does one of these things without getting permission, the copyright owner can sue them for copyright infringement. On the other hand, if the owner of the work does give permission, we call that permission a “license.” The owner can ask for a fee in any amount they choose in exchange for the license.

When we say copyright protects expression, we mean that copyright does not protect an idea, just the way it’s been expressed. For example, if you have an idea for a protest image that shows a man in a red cap and you tell your friend about it, she doesn’t need to get your permission to make her own image of a man in a red cap, inspired by your idea.

Say you design your own drawing of a man in a hat, add some text, and post it to Instagram, but your friend’s drawing skills aren’t as good. If your friend takes a screenshot of your post, crops it, and adds her own text, according to copyright laws, she must get your permission before she posts or she would be violating your exclusive rights.

Instagram logo and menu: screenshot from www.instagram.com

If, instead, she takes a photograph of her father wearing a red cap, she will be free to post that image to her own Instagram page (and she’ll have her own copyright in the photo!). Copyright doesn’t give you or anyone else control over the idea of a sign with a guy in a red cap, but it does give creators some control over what happens to a picture they have made.

What’s the Point of Copyright?

Copyright is actually written right into the U.S. Constitution. The Constitution empowers Congress:

To 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.

As the Constitution frames it, the point of copyright is to incentivize people to make new things that will benefit our society as a whole, and the way the Constitution does this is by giving the creator a set of exclusive rights to their work for a period of time. While those rights last, creators can recover their investment of time and resources in making the work by charging others who want to use it. When exclusive rights expire, the work enters the public domain, which means the work is free for the public to use and adapt as they like (more on that in the next section).

Dealing with Copyrighted Works

How do I know if a work is protected by copyright?

A work receives copyright protection automatically from the very moment it’s made. The creator of the work is the owner of the copyright, unless an employee creates the work while on the job (in which case their employer is the owner of the copyright). Since the 1970s, registering³ a work with the U.S. Copyright Office hasn’t been required. So if a work fits into one of the categories listed in the “What is Copyright?” section (writing, visual works, music, etc.), it’s fair to assume it’s protected by copyright.

However, there are some big and important exceptions:

1. Works in the public domain do not have copyright protection. When we say “the public domain,” we mean all the works that copyright law does not protect. If a work is in the public domain, you do not need to get permission to use it. So what’s in the public domain?

Anything that’s been “dedicated” to the public domain. You’ll know if this is the case because you’ll find a notice on or near the work saying so. Look for specific language like “Everything on this site to which we own copyright is hereby released into the public domain” or the Creative Commons Public Domain Certification.

And anything for which the term of copyright has expired. This includes:

  • Anything published before 1923. Keep in mind here that it’s only the stuff that was produced before 1923 that’s public domain: for example, you can freely use the text of a 19th century novel, but if a publisher released a new edition of it last year with a handsome brand-new painting on the cover, that painting is not in the public domain. Similarly, a new photograph of an ancient Greek sculpture might be copyright protected, even though the sculpture itself wouldn’t be.
Mona Lisa (public domain); “banksy-graffiti-street-art-mona-lisa-bazooka” image courtesy of Flickr user Bruce Krasting, CC-BY-2.0
  • Anything that was published between 1923 and 1977 if it was published without a copyright notice.
  • Lots of other stuff. How long the term of copyright protection lasts is more complicated than you might think. For new works by individual authors or artists working today, copyright will generally last 70 years after the author or artist’s death. But the rule is different if the author is a corporation instead of an individual, or if the work is older (because the law has changed over time). Cornell maintains a chart people often use to check whether copyright has expired on a particular work.

2. Facts can’t be copyright protected. You are free to use the score from a football game, a phone number, or the number of people at a protest.

  • CAUTION: Sometimes compilations of facts can be copyright-protectable if they’re arranged in original or creative ways (like the layout of an infographic: the layout could be copyright protected, even if the facts contained in it are not).

3. Works created by the federal government can’t be copyright protected. Examples:

  • Federal judicial decisions
  • Federal statutes
  • Speeches of federal government officials (including senators, members of Congress, presidents, etc.) given in the course of their employment
  • Federal government press releases
  • Federal government reports (e.g., Census reports)
Dorothea Lange (public domain); NASA (public domain)

4. Ideas, concepts, and principles can’t be copyright protected. See the section “What is Copyright?” above. However, specific creative expressions of ideas, concepts, and principles can absolutely be copyrighted.

5. Single words, simple phrases, or familiar symbols can’t be copyright protected…most of the time. The key here is creativity: a single word or very short phrase on its own (“Resist” or “We stand united”) will likely never be protected, but a graphic design superimposing a common word or phrase on an image in a creative way might well be. Similarly, there’s no protection for a plain geometric shape, like a stop sign (octagon), but an interesting pattern made of stop signs might be creative enough to qualify for protection.

What if I want to use a work that’s protected by copyright?

Say you want to use something — a photo, a song, a drawing — and after a little research, you think it’s protected by copyright. Don’t give up! You have a few options. You can:

1. Figure out whether the way you want to use it is a fair use (skip to Copyright Part 2 - Fair Use)

2. Get permission from the copyright owner (skip to Copyright Part 3 — Licensing and Getting Permission)

3. Find an alternative work:

Read More!

  • Roadmap: an overview of the complete Guide
  • Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
  • Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
  • Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
  • Rights of privacy and publicity: legal rights of privacy and publicity, which are implicated when protest art features real people
  • Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

[1] Copyright also protects other types of work, like architecture, but we’re focusing here on the kinds of creative works that people use most often for political protest.

[2] “Derivative work” is a technical term in copyright, but don’t fear! In essence, a derivative work is an adaptation of a copyrighted work: it includes some of the original content to make something creative and new. The Copyright Act gives some examples: translations, musical arrangements, movie versions, and condensations are all considered derivative works. A classic example is Marcel Duchamp’s take on the Mona Lisa (in which he added a mustache, goatee, and a crude caption). If Duchamp had just taken a photograph of the Mona Lisa and put it in a plain modern frame, he would have created a copy and not a derivative work.

[3] Although unregistered works are protected by copyright, there are still some reasons you may want to register a work: registration creates a public record of your ownership claim, and only the owners of registered works can get statutory damages (read: big money) in an infringement suit. Most people now prefer to use the online registration system because it has lower fees ($35 for an author/artist to claim ownership of a single work) and faster processing times. To access the online registration system, go to http://www.copyright.gov/ and click on “Register a Copyright.”

This website also has a search function that allows you to see if a work has been registered. You can search by title, owner name, or keyword, but the online database only covers material from 1978 to the present. Older records are available on-site in Washington, D.C. only.

[4] CAUTION: Don’t confuse “public” with “public domain,” which is a technical term. Just because a work is easily accessible (i.e., through a Google search, or in a library) does NOT mean it’s in the public domain.

[5] CAUTION: Copyright isn’t the only category of law that applies here. Words, phrases, or symbols associated with brands (the Nike swoosh, or L’Oréal’s “Because You’re Worth It” tagline) may receive protection by trademark law (see below).

The information in this guide is intended for background educational purposes and its authors are not your lawyers. For more information, please click here.