|See Sidebar “Graphic-Artist Gotchas” |
You’ve sweated over your creations, investing time and energy in them. Then someone comes along and rips them off. Your effort is disregarded, and your reputation as an artistand your incomemay even be threatened. You can defend yourself if you’re aware of your rights. You need to understand copyright law.
Copyright law is complex, but knowing a few basics can help you protect your creations. It’s important to understand the legal rights of a copyright owner, the types of work copyright law protects, and how to protect your work.
If you come up with ideas and illustrate, design, compose, or otherwise create original work, you might be what’s called an author under copyright law. Authors are automatically copyright owners (until they sell those rights to others). Copyright owners may prevent others from reproducing their work, distributing copies of their work to the public, performing or displaying their work to the public, and making derivative works from their original creations.
A recent court case provides an example. The symbol denoting The Artist Formerly Known As Prince is a famous design. Someone thought the symbol was so cool that he made a guitar in its shape. He allegedly showed his guitar to The Artistand then sued him for copyright infringement when The Artist made his own guitar in a similar shape.
A court ruled that the first guitar was derivative of the original symbol design, because it recast the copyrighted design in a new work. The Artist, as owner of that copyright, may prevent other people from making derivative works. Therefore, The Artist could sue the guitar designer for infringementnot the other way around.
What Copyright Law Protects
In the United States, copyright law protects only certain types of work that meet certain specific requirements. For one, the work must be expressed and fixed in a tangible medium.
A Good Idea Is Not Enough You may have a phenomenal idea, but copyright law doesn’t protect ideas. It protects only your expression of an idea.
Say you want to make a digital video of people talking about Internet privacy. You plan to shoot your subjects in unusual locales and use uncommon camera angles and lenses to enhance the movie’s emotional effect. Copyright law doesn’t protect the idea of filming people talking about privacy; however, it may protect the detailsthe original way you express your vision.
To buy a camera, you have to sell your idea to potential funders. You tell them your plan in a face-to-face meeting because you never know where a written plan might circulate. Guess what? You just blew your copyright protection.
Before copyright law protects your expression, you must fix the expression in a tangible medium where it can be perceived, reproduced, or communicated. In this case, you could save a description of your digital-video project’s locations, lenses, and camera angles in a word processor. If you’re composing music, you could record it on digital audiotape (DAT). Or you could create art in an illustration or image-editing program and save it as an electronic file.
Once you fix your expression in a tangible medium, you can determine whether it’s the type of work that copyright law protects: an original work of authorship.
No Copying Allowed A work of authorship is essentially an original creative work. Originality in this context means that the work must be an independent creationnot a copy of someone else’s work. Spending a lot of time or using mechanical skills to create something does not necessarily make it “original.” The work must be an expression of an individual’s personality or distinct talent.
In the United States, copyright law protects only the following original works of authorship:
Pictures, graphics, and sculptures: two- or three-dimensional works such as maps, charts, diagrams, models, technical drawings, fine art, graphic art, and photographs. (See “A True Original” for an explanation of why mere snapshots don’t count.)
Motion-picture and other audiovisual works: series of related images, with sounds, to be shown by means of machines or devices such as projectors and electronic equipment. Music and other sounds are considered part of an audiovisual work unless they become separate works (for example, part of a soundtrack album).
Musical works: music with lyrics, or instrumental music that has rhythm, melody, and harmony.
Sound recordings: the result of fixing a series of musical, spoken, or other sounds onto something tangible, such as DAT. (The copyrighted recording is the sound you hear, not the physical tape.)
Compilations: original arrangements of a number of other works. For example, a ten-track music CD is a compilation of ten separate musical works and sound recordings. A Web site could be a compilation of many pages of individual works of authorship.
Derivative works: new original expressions created by recasting, transforming, or adapting an existing work. Transforming a photograph into a graphic illustration may make it a derivative work. For an example of this transformation, see the sidebar “Graphic-Artist Gotchas.”
Also protected by copyright law are literary works (including computer programs), dramatic works, pantomimes and choreography, and architecture.
| A True Original Not every photograph is copyrightable. To create original works of authorship, photographers must add their vision. This photo’s unique lighting, posing, and expression make it an original. Courtesy of Bernard Matussiere, Studio Muller, Paris, Copyright B. Mattussiere. |
If your work doesn’t fall into one of these categories, federal copyright law won’t protect it. For example, the law won’t protect ideas, titles, facts, data, and common sounds because they don’t fit the legal definition of an original work of authorship.
When you create an original work of authorship, your rights begin at the moment you fix your creation onto a tangible medium of expression. But there are additional steps you may want to take, such as registering your work and embedding digital watermarks.
Although you don’t have to register your work with the U.S. Copyright Office to own a copyright, you can’t sue anyone for infringement of your copyright in the United States until you register it. You also receive other legal benefits if you register your work.
The registration process is fairly simple: just complete an application and pay a filing fee of $30 to the U.S. Copyright Office. You can get instructions and proper forms for free from the Copyright Office (202/707-3000 for general information, 202/707-9100 for forms;
https://www.loc.gov/copyright ). Some companies try to sell these same copyright packetsbut don’t fall for the scam.
If you plan to post your work on the Web, you should also consider digital watermarking, which “fingerprints” your files. Should you then find unlicensed copies of your watermarked creations elsewhere, there’s a good chance that you can track them to the purchaser who made the illegal copies. Two digital watermarking companies are Digimarc (800/344-4627,
https://www.digimarc.com ) and Liquid Audio (
When you post your copyrighted work on a Web site, everyone in the world can admire it. Anyone can also make a copy with one mouse-click. Are you out of luck when the thief is working outside your country? Global copyright protection is a little more complicated than domestic protection, but in most of the world you still have rights.
For example, a photograph created by a Parisian photographer recently appeared on the Web site of a Seattle company that sells posters. However, the photographer had authorized the photograph for use only in a promotional portfolio and for postcards sold in Paris.
Even though he shot the photograph in Paris and it never legally left French soil (because it didn’t do so with his permission), United States copyright law protects the work when it’s on U.S. soil. Therefore, the photographer could prevent the Seattle company and its Web site from displaying the image in any form on the Internet and from distributing (selling) the photograph as a poster.
Practically every country is a party to international copyright treaties; that is, national governments agree to protect copyrights for citizens in other nations. Usually the law of the country in which someone rips you off applies. Under some circumstances, you can sue the thief in a court in your own country.
Thanks to these treaties, copyright laws around the world are basically similar. However, laws vary on the specific rights and how long protection lasts for certain types of works, such as photographs and sound recordings. The World Intellectual Property Organization provides basic international copyright information at
https://www.wipo.org. For legal advice, contact a copyright lawyer who practices internationally.
Protecting your copyright internationally can be a hassle, but at least you’re spared one bit of paperwork. Unlike the United States, very few other countries require you to register your copyright before filing a lawsuit; few even have a registration office.
Renown without Rip-off Few artists prefer to labor in obscurity. Recognition is sweetas long as it doesn’t open the door to theft. Know your rights, and you can protect your work. SUSAN P. BUTLER is a new-media and entertainment attorney in Northern California. She writes a monthly legal column for ZDNet and is currently completing The E-business Legal Kit for Dummies (IDG Books Worldwide), due out this fall.
July, 2000 page: 113
Designers may find it hard to determine where the legal definition of originality begins. Copyright doesn’t protect the formatting, layout, or arrangement of material on a page; the selection of graphic elements such as typography and typeface, calligraphy, color, and lettering; or selection and creation of standard ornamentation or familiar designs and symbols.
That’s why the cover of Ryuichi Sakamoto’s Discord music CD is not copyrightable (see “Not Legally Original”). The cover is visually appealing, but the law says it doesn’t have sufficient original creativity to be copyrightable in the United States. Copyright laws in other countries may allow protection, however, depending on their definition of a work of authorship. The Discord cover’s creative director was Norika Sky-Sora, the art director was Hideki Nakajima, and the designer was Yoshinori Ochiai for Nakajima Design.
Even if you added a photo of the musician, drew the letters for the CD’s title, and combined the elements in a layout, the cover still wouldn’t include enough creative content to be a an original work of authorship according to U.S. law.
On the other hand, transforming the likeness of Sakamoto into an original expression, as Giles Dunn of Punkt did with the cover of Sakamoto’s Cinemage CD (see “Copyright This”), establishes it as a work of authorship because it’s more than a layout or selection of material. The designer altered the photo by softening the outlines of the face, making the background part of Sakamoto’s face, and adding colors. The face becomes more than a photographic image. As an entire piece, it’s an original artistic work.
Not Legally Original U.S. law says that, despite its powerful design, this CD cover is not protected by copyright because it is not sufficiently original in its expression.
Copyright This This CD cover is protected by copyright because it transforms the likeness of a musical artist into an original expression. It appears courtesy of Ryuichi Sakamoto and KAB America.