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I have had several clients recently ask about copyright, so I thought this summer we could discuss copyright and creativity! Copyright protection is a common law right earned the instant an artistic or intellectual creation is fixed in tangible form. This means when you write a poem on your computer, it is copyrighted. When you draft the notes for your song, it is copyrighted. It is that simple.
A drawing, a recording, a writing, a photograph, et cetera, can have copyright protection. Your journal. A song. A photo. A sketch. Your novel. This essay! All copyrightable.
The issue (as with all intellectual property) is possession: If two creators show up at the courthouse saying they each created a particular work, the court can only try to establish who “had it first” because that would be THE creator, right? It’s very hard–and expensive–to prove.
Copyright registration, with the United States Patent and Trademark Office, is recommended to provide that time stamp for the creator as copyright infringement or misappropriation suits typically involves possession or access to the art. Copyright registration also provides the registrant with the right to collect statutory damages if his or her creation should be the subject of infringement – meaning, you do not need to register your creation (but you should).
To be copyrightable, the work must be original and, according to the U.S. Supreme court, “possess at least some minimal degree of creativity.” Unlike patent, it does not need to be “novel.” It does not need to be unique.
Copyright also does not protect “ideas.” For example, the “idea” of a story cannot be copyrighted – but a particular version can be copyrighted.
Facts cannot be copyrighted; presentation of facts can be copyrighted (like a designed database). As an example: Boy and girl fall in love, but circumstances keep them apart (family, war, the dark side of the force…). You cannot copyright that idea. However, think of the hundreds of books, plays and movies that express that trope – those are copyrighted.
We should also reflect on AI assisted creations: In most cases, the creation can be copyrighted. However, the law has made clear the creation must have significant human creativity and effort. Also, some AI providers do not permit content generated through their model to be copyrighted. I’m going to treat this issue in a separate article.
A copyright holder has the right to copy, sell, lease, loan, display, perform, use and destroy his or her work. The copyright holder may mark his or her work with his or her name (or names), the date and word “copyright.”
A registered copyright is marked with “©.” This mark is a notice to the world that that individual or individuals owns that creation. Again, registration only provides a time stamp, notice to the world and the right to federal statutory damages in the event of successful infringement or misappropriation action. Registration is inexpensive but must be done correctly to properly document the work.
Clients often ask me about the “poor man’s copyright:” Mailing the work to yourself and then not opening the envelope. This provides a date-stamp and a sealed envelope – demonstrating the work was in the sender’s possession at the time of mailing. Although this is not a bad idea and will do no harm, it does not give you the protection that registration does. Registration tells the world that the work is your creation – and puts the world on notice that no one is to use it.
The Federal Copyright office can be accessed through http://www.copyright.gov/.
And, yes, while I will not provide legal advice, I can help you secure a registered copyright through the US Copyright office.