How Many Times Have You Broken the Law? What You Need to Know About Copyright
Small business owners have a lot on their plates. Inventory and invoicing. Customers and employees. Revenue and taxes. Updating your website. One of the last things you are likely thinking about is copyright law.
But copyright issues often arise in small businesses. Especially in the context of websites and other marketing efforts. As a small business owner, copyright may affect you as both a creator and user of protected work.
Looking for pictures for your home page? Need some content for your blog? If you are just copying and pasting from other sites, you are violating copyright law. And that could get very expensive.
If you run a creative business, you need to make sure you protect the work you post on your website. Or you could be losing valuable revenue.
Like many areas of the law, copyright rules are extensive and complex. But this article will cover the basics to help you steer clear of infringement.
What Is Copyright?
Copyright law governs one’s rights and ability to use another’s creative work. It including writings, drawings, photographs, paintings, music, and software codes.
Copyright law promotes creation by giving authors exclusive property rights in their works. If you own the copyright to something others may not use it without permission.
Copyright usually belongs to the creator of an original work. The author who writes the book. The artist who sculpts the vase. The musician who writes the score.
But copyright can be sold, traded, or inherited. Works created on commission often vest the copyright in the patron, not the creator. Publishing companies and recording agencies often hold the copyrights to works they produce.
What Can You Copyright?
Copyright protection extends to an “original work of authorship”. There are three requirements for works to copyrighted. They must be:
- “fixed in a tangible medium of expression,” and
- possessing a modicum of creativity.
Original means that work did not exist before the artist created it.
Copyright protects works of artistic creation, including:
- Music — songs, arrangements, scores, recordings, etc…
- Writing — novels, poems, stories, journalism, plays, blog posts, etc…
- Visual art — painting, drawing, photography, sculpture, etc…
- Dance choreography
- Computer software
Copyright protection only applies to works that have been set into a “fixed and tangible” form. You cannot copyright thoughts and ideas. You must reduce amorphous concepts to a tangible expression.
What Does “Fixed in a Tangible Medium of Expression”?
Suppose you own a bakery. You make Tik Tok videos about cupcakes to market your products. You always create your dance moves in your head before you perform them. At this point, the dance is an idea. You cannot copyright it.
Then, you practice your dance in front of the mirror making sure you get it right. This practice is not in a “fixed and tangible form” either.
While you rehearse your baking competitor watches through the window. She copies your exact moves and beats you to Tik Tok. You want to sue.
Not so fast... Yes, she stole your idea. Yes, she is evil. But no, she did not infringe on your copyright.
Your dance is not protected until it is in a tangible form. For dance, this is a video recording or a precise written description in text or dance notation. A performance or rehearsal is not protected until it is recorded.
Let’s look at another example. You own an Occult book store. You have an idea to write a poem about ghosts you encounter throughout your day. You title your poem “A Dance with the Shadow People” and post it on your website. Copyright protection attaches to your work.
Two days later, a rival bookstore owner publishes a poem on her website. It’s called, “The Spirits Within Me,” and it’s about ghosts she sees in her shop every day. You see her poem and are steaming mad. You want to sue for copyright infringement.
As a legal matter, you can’t sue unless you registered your copyright. See How Do You Get a Copyright? below. But even if your work were registered, there is no violation here.
Although you both wrote about the same idea, ghosts in our midst, you each wrote different poems. You own your poem. Not the idea. There are lots of poems about ghosts.
What Isn’t Protected?
The following things are not subject to copyright protection:
- Works of the federal government (memos, rules, documents, reports)
- Website names (which is why you should always buy .com, .net, .org, .ca)
- Blank forms
- Lists of ingredients, like recipes or formulas
- Names: individual names, group names, business names (may have Trademark protection)
- Slogans, mottos, catch-phrases
- Laws: cases, constitutions, statutes, regulations, court decisions
- Clothing, including fashion design
- Things with utilitarian purposes, like appliances or tools (Trademark or Patent protection may be available)
How Do You Get a Copyright?
It’s easy to get a copyright. In fact, you don’t have to do anything to protect your creative work. Copyright is automatic.
There is a myth that copyright is something you must apply for from the government. This is not true.
Copyright happens automatically. Once you set your work into fixed form copyright attaches. This is true even if your tangible form is doodled on a legal pad or jotted on a napkin. You do not have to do anything more.
What about that © symbol?
You no longer need to use the © symbol. The copyright symbol carries no legal weight. It is not required to protect your work.
The purpose of the symbol and dated copyright notice is to let others know that the work is protected. The notice provides information about the date and owner of the copyright. This information is helpful for someone seeking permission for use.
Copyright notices are not required, but they are useful. The proper way to include a copyright notice is:
© Date of creation, name of the copyright holder
You can include additional information after the notice. Some add “All Rights Reserved” to let others know they cannot use the work without permission. Others might include “Creative Commons release”. This allows works to become part of the public domain.
Should I Register My Copyright?
You do not have to register your copyright, but you may wish to do so.
There are three reasons to register copyright:
- establish yourself as the copyright owner;
- establish the date of creation; and
- to take legal action against someone who infringes on your copyright.
In most jurisdictions only registered copyright owners may sue for infringement.
Whether this is important to you will depend on the nature of your business and your work. If you sell original paintings or write bestselling novels, you’ll want to register your works.
If you are writing blogs about shampoo or producing flash fiction every day, you don’t need to.
You may also want to register your copyright if you can’t otherwise prove the date of your creation. This often applies to unpublished works. The date of creation is important for copyright disputes.
Remember, copyright only protects original works. If two people claim to have written the same movie, the person who did it first owns the copyright.
It is easy and inexpensive (only $35) to register a work online.
You do not have to register copyright right away. If an infringement occurs and you want to sue, you can register at that time.
The processing time for copyright registration filings can take a year. So, if you go this route you need to act quickly. The statute of limitations for copyright infringement is three years. You must file suit within three years of when the infringement occurred.
What is an Infringement?
When someone uses your work without permission they have infringed on your copyright. Examples include:
- downloading music
- sharing software
- posting photos
- photocopying books or lessons
- singing someone else’s song
The unauthorized use of images is a common example of copyright infringement. And one that many business owners commit.
To win a claim of copyright infringement you must prove the following:
- You are the owner of a valid copyright in the work or have the legal authority to bring a lawsuit;
- the defendant actually copied the copyrighted work; and
- the copied sections are protected by copyright (not merely facts that exist in the copyrighted work).
Evidence of actual copying of the work can be proven directly or indirectly. It’s uncommon to have proof of someone directly copying your work. Instead, you can show the infringer had access to the work and their creation is “substantially similar to the copyrighted work.” Access is easy to prove in the case of a public website. You can show that the defendant’s work is “strikingly similar to” the copyrighted work.
There must be a tangible loss to recover money. You have to show that by copying your work the defendant caused you to lose money. If you prove a financial loss, like lost profits, you can recover actual damages.
Most copyright cases settle out of court. The typical remedy is an order to remove unauthorized material.
What About Fair Use?
Fair Use is a defense to a copyright infringement charge. In the U.S. we have a First Amendment guarantee to free speech. This means, subject to some restrictions, we can say what we want.
Copyright law restricts free speech. Fair Use is the solution.
Fair Use allows the use of copyrighted material for commentary, criticism, or parody.
Unfortunately, there are no bright-line rules governing Fair Use. This is a gray area of the law. Judges use a list of four criteria to determine whether a specific instance is a Fair Use. They consider:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
The context of the use is important. If you use copyrighted photos on mugs and t-shirts that you sell for a profit that is likely an infringement. You are illegally using someone else’s work for commercial use.
But, if you use copyrighted photos in an article celebrating local photographers that may be Fair Use. Especially if you include links to their portfolios.
The “nature of the copyrighted work” considers the cultural importance of a work. It also evaluates its newsworthiness, and whether it is a published or private work. If the news is doing a story on art theft, they may show photographs of stolen paintings.
The amount of the work used also matters. A snippet of a poem or a paragraph or two of a 300-page novel or a 15-second clip of a performance is usually permissible. But if someone records all but the first five minutes of a movie and releases it on YouTube, that is likely infringement,
The last factor asks if the unauthorized copy diverts sales away from the original. Small excerpts included in a positive review may increase the work’s value. This is Fair Use.
Negative criticism can also be Fair Use though. If the review uses a small part of the work for critique or commentary it is permissible. Even if it adversely affects market value.
The criterion asks whether the copy is a valid substitute for the original work.
Fair Use is a confusing and complicated area of law. You should never rely on Fair Use to excuse your unauthorized use of others’ work.
Instead, you should search the public domain for content.
What is the public domain?
The “public domain” refers to creative materials that are not protected by copyright. No individual author or artist owns these works. Rather, they belong to the public.
Anyone can use a public domain work without obtaining permission, but no one can ever own it. Work falls into the public domain in one of four ways:
- The copyright has expired. As a general rule, copyright lasts for the life of the author plus 70 years. It expires at the end of the calendar year.
- The author failed to follow the copyright renewal rules.
- The author intentionally assigned the work to the public domain. This is called “dedication”.
- The work is not protected.
As a small business owner, the public domain is your best friend. If you don’t want to pay for images or other content, make sure you are searching in the public domain.
Take your time. Do your research. Make sure you have the right to use images, text, video, and audio clips. Don’t rely on Fair Use to absolve you of liability.
Disclaimer: This article does not constitute legal advice. This Q & A provides general information on the issues covered. It is not intended to be a comprehensive summary of all laws which may apply to your situation. Please consult your own legal advisor regarding the specific application of the information to your business.