Basic Questions
A: No. Once your work is in a fixed form (i.e. a photograph, video, sound recording, document, written down on a sheet of paper, painted on canvas) then you hold the copyright. Nonfixed mediums such as sand sculptures and chalk art are a little trickier since they are only arguably fixed. If there is a question about the fixed nature of your work, it is probably best to photograph it. However, it will be the photo that is copyrightable.
Q: How long does it take for the Copyright Office to process my copyright application?
A: If you are e-Filing, you should receive your certificate within six months. If you are mailing your application, it could take up to twenty-six months. However long it takes to process your application, the effective date of registration for legal purposes is the day the Copyright Office received your completed submission.
Q: If I don’t have to register my copyright to hold the copyright, then why bother?
A: Registering your copyright is like having a witness for your work. If you ever have to file a lawsuit, the chance that you’ll receive damages is greatly improved by having had your copyright registered before the infringement occurred.
Q: Do I need to put a copyright symbol © on my website, blog, or documents I create to own the copyright?
A: No, but it doesn’t hurt. In fact, if you have a website or blog, it is a good idea to note somewhere that the material is under copyright. If you ever go to court, the defendant won’t be able to claim that they didn’t know your website was under copyright and you could probably claim more damages.
Q: I heard that sending yourself a copy of your work through the mail grants you copyright protection. Is this true?
A: No. You don’t need to mail it to yourself to have protection. You already have copyright protection for your work once it is in fixed form.
Q: Does my work have protection in other countries too?
A: Yes. The federal Copyright Office has a list of the particular relations that the United States has with other countries regarding copyright. So your copyright is protected with most countries. Some countries the U.S. does not have copyright relations with include, but are not limited to: Afghanistan, Eritrea, Ethiopia, Iran, Iraq, San Marino (Copyright Office, January 2010).
Q: How do I ask for permission to use something?
A: Get in contact with the party with which you seek permissions and find out if they have a permissions form that they would like you to fill out. If they don’t have a form, you can write your request in a short letter that indicates the exact portions of the copyrighted work that you wish to use, including page numbers, track time, amount of code, etc, and the copyright information. Also include all uses for the intended copyrighted work, how your work is going to be used (classroom, commercial, personal), when you intend to release your work, and how many copies you expect to make. Make sure you begin the permissions process long before you intend to release your finished product because it may take a while, and be sure to give proper credit in your final product.
Q: Anything on the internet is public domain, right?
A: Although a lot of content on the internet is copied and pasted from other sources, it does not mean that the practice is legal or that the content is in public domain. On the contrary, the internet is not public domain but is made up of millions of different copyright holders.
Q: Can I copyright my website?
A: Yes. Only the portions of the website that belong to you, are copyrightable material, and are not in public domain may be registered to you.
Q: I update my website frequently. Do I need to register every time it is updated?
A: The unfortunate answer is yes, that if anything is created and uploaded on separate days then each revision needs to be filed separately with a separate filing fee. The new copyright only applies to the new material. Some automatically updated websites can be considered databases, and only have to be registered as “new copyrightable material” every three months.
Q: Can I copyright my domain name?
A: No. Words or short phrases are not considered original enough to be copyrightable. This also includes titles, the name of a company (if not trademarked), the name of a band, a slogan, or even a person’s name.
Q: A coworker stole my idea! How can I sue for copyright infringement?
A: Unfortunately you can’t. Ideas are not protected under copyright, only the creative expression of them.
Q: I am a minor. Does that mean my parents own my copyrights until I turn 18?
A: No. Minors can own and register their own copyrights, but there may be state laws regulating the business dealings involving copyrights owned by minors.
Reference:
U.S. Copyright Office website: http://www.copyright.gov/
Does my use of this work meet the requirements of the TEACH act?
The TEACH Act, which became law in 2002, expands the scope of educators’ rights when it comes to employing the use of copyrighted works, particularly when a class is held online or through digital distance learning, making the rights close to those that exist for face-to-face teaching. Although it is entirely up to each educator to ensure that s/he is not violating any copyright laws, the following offer helpful questions to consider when determining if activities fall within the scope of protection under the TEACH Act.
- Is your institution a nonprofit accredited educational institution or a government agency?
- Does your institution have a policy on the use of copyright materials?
- Do you provide accurate information to faculty, students, and staff about copyright?
- Are the materials you’re using specifically for students in your class?
- Will only the students in that particular class have access to those materials?
- Will those materials be provided under your direction during the relevant lesson?
- Are the materials directly related and of material assistance to your teaching content?
- Is your class part of the regular offerings of your institution?
- Will you use technology that reasonably limits the students’ ability to retain or further distribute the materials?
- Will you make the materials available to the students only for a period of time that is relevant to the context of a class session?
- Will you store the materials on a secure server and transmit them only as permitted by this law?
- Will you include a notice that the materials are protected by copyright?
- Will you refrain from making any copies other than the one you need to make the transmission?
- Are the materials not among those the law specifically excludes from its coverage (materials specifically marketed for classroom use for digital distance education; copies you know or should know are illegal; textbooks, course packs, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session)?
- Are the materials of the proper type and amount the law authorizes (entire performance of non-dramatic literary and musical works; reasonable and limited parts of dramatic, literary, musical, or audiovisual works; displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching)?
- If you are using an analog original, did you check before digitizing it to be sure that you only copied the amount that you are authorized to transmit and that there is no digital copy of the work available except with technological protections that prevent you from using it for the class in the way the state authorizes?
Sources: http://copyright.lib.utexas.edu/teachact.html and http://www.copyright.gov/docs/regstat031301.html
Does my use of this work constitute Fair Use?
Fair use is acceptable use of a work in particular circumstances without being required to ask permission. Fair Use is only relevant if something is copyright-protected. Although it’s not always clear if you are able to use work under Fair Use, you can generally determine the answer if you individually examine the 4 Factors of Fair Use:
- Nature of the copyrighted work: What type of work is it that you’d like to use? Is it political or social commentary? Is it an academic article? Did the government produce it? All government documents are free and automatically public domain.
- Nature of use (Transformative vs. Derivative): Is the nature of your use for non-profit or educational purposes? If so, you’re likely covered under Fair Use. If it’s parody, it’s also fair to use.
- Amount used proportionate to the total work: This is complicated. While there are loose standards and guidelines, they are not exact. If you are citing a paragraph from a 400-page book, you are probably fine. If you are citing 2 lines from a 10-line poem, you have probably exceeded Fair Use standards.
- Commercial impact: This is the most important factor under Fair Use. Does granting Fair Use compete with the loss of potential sales? If so, you will not be covered under Fair Use. For example, if a professor photocopies articles to distribute to her students instead of having students buy an anthology that contains those articles, she is violating copyright law since her actions compete with the loss of potential sales of the anthology. Consider any financial harm you may be causing. If there is financial harm, you’re infringing on the original author’s rights and will not be granted Fair Use, and could face damages and/or legal repercussions.
Copyright Law: General Notes
Although technically an original work is copyrighted the moment it’s adhered as a tangible means of expression upon creation or publication and you do not need to officially register your copyright, it is highly recommended that you do; in any legal situation you will have the burden of proof. Copyright makes no aesthetic judgments and protects expression—it never protects ideas. Here are some substantive requirements for copyright protection:
- Fixation: A work must be fixed in a reasonably permanent form.
- Tangible means of expression: This must be a physical rendering of a work of expression. There must be a particular amount of boundaries cordoning the artistic expression as yours.
- Originality: Must be original to the author; does not necessarily have to be original to the world. Copyright doesn’t make aesthetic distinctions about a work being novel or new to the world, and a work being new to you; quality determinations can’t be made.
Is my work separable?
Separability
A "pictorial, graphic, or sculptural work" is protectable only if its aesthetic features are separable from its useful qualities. According to 17 U.S.C. §101., a "useful article" is "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." A work passes the separability test if its aesthetic elements can be separated from its function.
Separability Test
There are various ways a court could determine separability. If the work meets one of the following criteria, it would likely be deemed separable.
- Can the work be physically separated?
- Though the article may have a useful function, is it also appreciated for its aesthetic appeal?
- Does the creator think of the aesthetic aspects as separate from the functional ones?
- Is the designer of the work able to make aesthetic choices that are not affected by functional needs?
Does my work meet the minimum requirement for creativity?
Creativity
An integral part of originality requires some level of creativity on the author's part. An author must show an almost shocking lack of creativity in order to fail this test. Creativity may arise out of intention or accident, but must "...possess some creative spark, 'no matter how crude, humble or obvious' it might be" (499 U.S. at 345). There really are no hard-and-fast rules for determining creativity, as long as the author has not created a work in which something is presented in the exact same way it has long been done.
