With 2017 almost here, I have noticed people posting reminders to update the copyright notices on website footers. And while this is not “wrong,” it shows a common misconception of what copyright law is, what it does, and how it works. So, I thought this would be a good time to review copyright law in general.
Be sure to read Number 12 for a free independent contractor agreement that will protect your copyright rights!
Here are 17 things you should know about copyrights:
- The copyright notice in your website footer is not required to obtain copyright rights. In fact, it is purely optional. The copyright notice…puts people on notice of your rights. From a legal point of view, this can remove a defendant’s ability to claim innocent infringement (which could reduce available damages). But, this is the only real impact of not using the copyright notice.
- It wasn’t always this way. Under the 1909 Copyright Act, failure to use a copyright notice resulted in total loss of copyright rights. Yikes! The notice became truly optional in 1989.
- The proper form of the copyright notice is to use the ©, the word Copyright, or the abbreviation “Copr.”, the year of first publication, and the name of the copyright owner.
- In fact, if you use tools that automatically update your footer to 2017, you may actually be using the incorrect year of publication (although it really doesn’t matter). The year within the footer should be the year the content was published, not just the current year. If you have been adding content since 2012, you could put 2012-2017. But again, this is completely optional, so you can’t really mess this up.
- If you are working in the online space, you really need a basic understanding of copyright law. Not only will it protect what you do, but it will keep you out of trouble.
- Copyright rights vest automatically in the “author” without any formal registration when the “work” is “fixed in a tangible medium of expression.” Normally, the “author” is the person that actually created the “work.” But there are some important exceptions. See Numbers 11-12.
- A “work” that is subject to copyright protection falls into one to the following categories: literary, musical, dramatic, pantomimes and choreographic, pictorial, graphic, and sculptural, motion pictures and audiovisual, sound recordings, and architectural.
- “Fixation” is an important concept in copyright law. A “work” is considered “fixed” when it is stored on some medium in which it can be perceived, reproduced, or otherwise communicated. So, when you record a movie, draft and save code, or save a digital picture, you have fixed your “work.”
- Copyright law does not protect ideas. But, it does protect the expression of those ideas. A good way to understand the difference between an idea and an expression of an idea is to think about a cookbook. The idea of making a homemade cast iron pizza cannot be protected by copyright. But, if you expressed your ideas of the perfect cast iron pizza making-method in a book, the expression of that idea within your book (which is fixed) is protected by copyright.
- Owning copyright rights means you have the exclusive right to reproduce, distribute, perform publicly, and create a derivate work of your work. In other words, if you own copyright rights to high quality pictures of the items you sell, anyone that uses those pictures without your permission is committing copyright infringement.
- If you hire an independent contractor to write code, write content, take pictures, design graphics, record a movie, record music, or anything else that can be considered a “work,” and you do not have a WORK FOR HIRE agreement, that independent contractor is the author and owns all copyright rights. In other words, if you hired an independent contractor to take those high quality photos on your website, the photographer owns the exclusive right to display the images, not you.
- If you have a WORK FOR HIRE agreement in place, the copyright rights vest in you, not the photographer. I have made a sample Independent Contractor Agreement containing work for hire provisions available here. Feel free to download and share. Although, you will need to sign up for our mailing list.
- Now let’s talk about user-generated content. If your website allows posting of user generated content that infringes on another’s copyright, can you be liable for copyright infringement? Not if you comply with the DMCA’s safe harbor procedures AND designate a DMCA Agent. This is an often-overlooked step to obtaining DMCA protections. Until very recently, this had to be done in paper, but it is now available to submit online here.
- While registration is not required to obtain copyright rights, formal registration does bring additional benefits. First, it opens the courthouse doors. You cannot sue anyone for copyright infringement until you have obtained (or in some cases applied for) copyright registration. Second, your registration is proof that you are the true owner the defendant must rebut. And finally, you can obtain statutory damages (which can provide you significant leverage in any negotiations).
- The type of copyright damages available depends on the timing between the registration and the infringement. If the infringement happens, and then you register, you are limited to recovering “actual damages” which are the defendant’s profits plus your losses. But, if you register first and then the infringement happens, you have the choice between actual damages and statutory damages. Statutory damages do not require any math or computation of how much money the defendant made. Instead, the court can award up to $150,000 per infringement.
- It’s not practical to file for copyright registration for everything, but consider it for important works that can be easily copied. You can probably handle the registration yourself. Here is a link to the Copyright Office’s Circulars, which provide detailed instructions on the registration of different types of works. Plus, the filing fee is only $35.
- A monkey taking a selfie cannot obtain copyright rights in his or her picture.
Happy New Year!