Copyrights

Any work of authorship can be eligible for a copyright. Works of authorship take various forms, but generally include art, writing, media, and digital works. Some examples include literary works (e.g., books, poems, or letters), visual arts (e.g., paintings, photographs, sculptures, or clothing designs), performing arts (e.g., plays, choreography, or pantomimes), sound recordings (e.g., musical compositions, songs, speeches, or podcast episodes), audiovisual works (e.g., films, animations, TV, video games), computer programs, web pages, and architectural works.

Keep in mind that works of authorship have a human author. Thus, products of nature or machines are not eligible for copyright. For example, a plant or a bird call are not eligible because they are produced by nature, not a human author. On the other hand, imitations or depictions of nature are eligible for copyright. For example, a photograph of a plant or a recording of a bird song made by a human may be copyrightable.

How do I know if the work is mine to copyright?

The work must be an original work that was independently created by the author.

The work is not original if it is merely something copied from other works. It is, however, possible to copyright a work that was inspired by or incorporated elements from previously works. For example, a reproduction of a well-known folk tale that has been passed down over time may not be eligible for copyright. However, an adaptation of the folk tale or a new story that borrows elements from the folk tale is still copyrightable. The copyright will protect the aspects of the work that are original to the author.

Originality also requires at least a minimal degree of creativity. This is an exceptionally low standard, but some things may not meet this threshold. For example, short sets of words like names, nicknames, titles, or slogans lack the requisite creativity for a copyright (but trademark may apply). 

Likewise, a discovered fact (such as a natural phenomenon) is not copyrightable.

Also consider the following exceptional cases:

Works Made for Hire: While the author is generally the creator of the work, an exception is a “work made for hire,” which occurs when an individual creates a work as part of their employment or as part of a written agreement to create the work. In this case, the employer or the party that ordered the creation of the work is considered the author and the owner of the copyright.

Derivative Works: This is a work based upon one or more preexisting works. Examples include a translation of a written work, a new edition of an earlier publication, an art reproduction, a motion picture based on a novel or play, or a new version of a computer program or website. Derivative works may be eligible for their own copyright, but the copyright covers only the additions, changes, or other new material in the derivative work that did not appear in the original work. Keep in mind that in order to create a derivative work, you will most likely need to obtain the rights for the underlying work from the owner as well.

What form does the work need to be in to be copyrighted?

The work must be fixed in a tangible medium of expression. A work is considered fixed when it is captured in a form that is permanent enough to be perceived, reproduced, or communicated for more than a short time. While most works will meet this requirement, things like live performances (e.g., a speech, storytelling, a song, or other performance) are not fixed because you had to be there to perceive it. Once the performance is recorded (e.g. audio, video, photo) or captured in a written form, then it may be considered fixed.

This means that an idea or concept is not copyrightable if it’s still in your head. So that idea for a film that you’ve had for years is not protectable – you must write the screenplay or script to protect it!

What protections does a copyright provide?

For most works, copyright protection lasts for the entire life of the author(s) plus 70 years, but it may be longer in some cases.

In that span, U.S. copyright law provides the owner with the following exclusive rights: 

1. The right to reproduce the work. This right is infringed if someone substantially and materially copies your work – even if they do not copy the entire thing.

2. The right to prepare derivative works based upon the work. For example, if you author a novel, you also hold the right to making a film based on the novel.

3. The right to distribute copies of the work. For example, you hold the right to sell your novel. However, you cannot prevent a copy you sold from being shared or re-sold.

4. The right to publicly perform and/or display the work (for certain types of works). Your work cannot be shared publicly without your permission even if a copy of it was purchased from you. For example, someone cannot show your film at the park (even if they bought a copy) without obtaining a license from you.

What steps should I take to copyright my work?

Basic copyright protection exists automatically when the work is fixed. Registration is not required.

However, to enhance your protection further, you may register the work with the U.S. Copyright Office. In addition to the above rights, the registration may provide:

1. A public record of the copyright claim, and a legal presumption that the copyright (including all facts stated on the registration certificate) is valid.

2. The right to enforce your copyright in federal court against infringers and, in some cases, recover additional types of monetary damages (e.g., statutory damages and attorney’s fees) in the lawsuit.

3. The right to record the registration with U.S. Customs to protect against knockoffs or infringing copies being imported.

In order to register your copyright, you must:

• Submit a copyright application on the Copyright Office’s website or by mail, including filing fees (<$100).

• Submit a copy of the work. You may submit a digital copy with the application or submit a physical copy by mail.

• Await a response from the Copyright Office after examination of your claim. On average, applications are processed within two to four months.

  • The Office may contact you to address any deficiencies or inaccuracies with your claim.

  • If there are no issues with the claim, the Office will issue a registration certificate.

What do I do if I have a dispute over my copyright?

If you feel that someone is infringing your copyright, you should contact an attorney. Likewise, if you are accused of infringing a copyright, you should also contact an attorney. An attorney is best equipped to assess the situation to advise on whether infringement has occurred, whether there are viable defenses or exceptions to copyright infringement, and how to resolve any dispute.

Some things to consider:

• You can generally enforce your copyright within the U.S. If the infringing activity is outside the U.S., it will depend on the copyright laws of that country and whether the country has a copyright agreement with the U.S.

• Don’t wait too long! There is a statute of limitations. If the copyright holder waits too long to try to enforce your copyright, it could void the claim.

• Many common websites and social media platforms (e.g., Google, X, or YouTube) will assist in sending a DMCA takedown request to an alleged infringer. 

  • If you receive such a notice from an online platform, take the request seriously. Consider removing the material and/or contacting an attorney.

  • Likewise, consider contacting the host if you believe your copyright is being infringed online.

• Aside from stopping or removing the infringing activity altogether, a useful remedy may be to negotiate a license that allows use of the copyright in exchange for compensation.