Copyright provides the creator/author of an original, creative work – such as a musical composition or recording, a literary work, or work of art – the sole right to control and exploit that work, including the right to publish, make copies, and otherwise generate revenue from the work, including the right sell or license the work to others. Copyright law’s purpose is to incentivize creators to create by providing the creator with the exclusive right to control the use and exploitation of their creative works for a period of time.
Copyright Frequently Asked Questions
What can be copyrighted?
Three things are necessary for a work to be copyrighted: (1) fixation, (2) expression, and (3) originality.
(1) Fixation: a work must be “fixed” in/on a tangible medium for copyright protection. Among many other examples, this can be a literary work fixed on a piece of paper or computer hard drive, a musical recording fixed on a tape or digital medium, a photograph fixed on a piece of film or a work of visual art on a canvas. A live, impromptu speech would not be capable of copyright protection because it is not fixed in a tangible medium, however, if that speech is placed into a teleprompter (and thus fixed in a tangible medium) and read, the fixed work, as written into the teleprompter, is capable of copyright protection.
(2) Expression: Ideas alone cannot be copyrighted but the particular expression of an idea, as it exists in a tangible medium, can be. Thus, the expression requirement works hand-in-hand with the fixation requirement. Only the expression of an idea as it is fixed on a tangible medium can be copyrighted. Thus, if someone comes up with an idea for a show about a workplace with a clueless manager and a bunch of lazy, practical-joking employees, that idea cannot be copyrighted. But the script for The Office and each recorded episode of that show certainly can be protected by copyright.
(3) Originality: For copyright protection, a work must have a basic level of originality. A copy of another person’s work will not meet the originality requirement. Likewise, facts, short phrases, and titles do not have the required level of originality for copyright protection. For example, the mere alphabetical listing of names in a phonebook does not rise to the level of originality necessary for copyright protection, but the photo or graphic design on the front cover of that phone book is capable of copyright protection.
I have an idea for a business plan [or a tv show, or a book, or a song…..], can I protect it with copyright?
No. As noted above, ideas are not protectable by copyright. Write down your business plan [or the script for your tv show, write the book, or record the song] and, assuming it has the requisite originality, that affixed expression of your idea may be protected by copyright. This does not mean that nobody else can have a similar idea and also protect it with copyright. But it does mean nobody else can copy your expression of the idea.
Can words or short phrases be copyrighted?
No. Generally, words, titles, names, URLs/domain names, short phrases, or slogans cannot be copyrighted. However, you may be able to secure trademark protection in such items (i.e., Nike®, for athletic shoes and apparel; Coors®, for beer; M&M’s® for candy; and Louis Vuitton® for suitcases, apparel, and accessories are all registered trademarks) and unfair competition law may also provide some protection in these non-copyrightable words/slogans as well.
Can I copyright a recipe?
Generally, no. A recipe is a statement of the ingredients and procedure required for preparing a food dish. The Copyright Office will not register recipes consisting of a set of ingredients and a process for preparing a dish. Of course, if you prepare a cookbook that includes recipes, pictures, illustrations, and perhaps, for example, some original commentary about the region or culture from which the recipe comes, all of these elements other than the recipes are copyrightable.
How do I get a copyright?
You have a copyright as soon as your original creation is affixed in a tangible medium of expression. You do not need to register your copyright to have a copyright in your original work. Without registration you have what is called a common law copyright. However, registration provides significant benefits in the event your work is infringed (used without your permission). If your work is infringed and you’d like to file a lawsuit for infringement, it is necessary to secure registration of the copyright in the work you claim was infringed before filing suit. In fact, there are very specific timelines regarding when you must register in order to bring a lawsuit for an unauthorized use of your work. You also cannot obtain statutory damages if your work is not registered. As such, you should register your work as soon as possible.
What are the benefits to copyright registration?
There are several, including:
+Copyright registration creates a public record of copyright ownership as of a certain date. Further, registration typically requires the deposit of a copy of the work you seek to register. This is beneficial since ownership and date of creation are often at issue in copyright disputes. Registration provides prima facie evidence of the information contained in the registration certificate, which is important since the asserted copyright owner carries the burden to prove that he/she/it is, in fact, the valid copyright owner.
+The publicly-available copyright register lets would-be infringers know that you care enough about your work and believe it has value that justifies copyright registration. A sophisticated infringer will also know that, with registration, you will have a significant advantage in the copyright infringement suit in which he/she/it may be named a defendant.
+If your registration exists prior to an infringement, (or within three months after publication of the work), you, as a registered copyright owner become eligible for an award of statutory damages as well as an award of the attorneys’ fees and the costs you incurred in bringing the suit. All of this is extremely valuable. An award of statutory damages allows the copyright owner to recover the statutory damage amount listed in the Copyright Act, instead of pursuing (and having to prove) actual damages. The option to pursue statutory damages is exceptionally valuable because proving your actual monetary damages in a case of copyright infringement is often a very difficult task. As with the ability to seek and secure statutory damages, the ability to seek and secure an award of the reasonable attorneys’ fees and costs you incurred in bringing your successful infringement action provides, of course, significant settlement leverage for a viable claim.
How do I register a copyright?
Is music sampling copyright infringement?
Yes, with some exceptions, sampling without the consent of the copyright owner of the original recording will constitute copyright infringement. In the music realm, sampling is the act of incorporating a portion of a previously recorded track into a new recording. Sampling can include taking, for instance, a five second portion of a recording and incorporating it into your new recording, or just taking the drum track or bass track. Sampling can also include repeating a sampled section of an existing recording over and over, to form a loop, and/or it can include manipulating the speed or pitch of an existing track and including that manipulated sound in your new track. Since most popular, recorded music incorporates two separate copyrights – one in the composition (the lyrics and melody), which is typically owned by the songwriter and/or his/her publishing company, the other in the sound recording, which is typically owned by the recording artist and/or their record label – it may be necessary to secure a sample license from both of these parties, which can be painstaking and expensive, though likely not as expensive as a copyright infringement suit. Of course, clearing a sample of a recording by a popular artist and recording will be much more expensive than securing one from an obscure artist or song. To avoid necessity of securing a sample license from a recording artist or record label, some music producers will, instead, record a new version of a particular composition, in which case only the composer’s/publisher’s permission is required.
Should I copyright my logo?
If it has the requisite level of originality, yes! Your logo and other branding elements may be capable of both copyright and trademark protection, which will give you an advantage if there is an infringement of your design.
How long does copyright protection last?
It depends on several factors, including whether the work has been published, and, if so, the date of first publication of the work. Generally, for works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.