As technology constantly changes and creates new avenues for creating, sharing, and disseminating creative works, it’s more important than ever to be aware of copyright laws, as well as the consequences of violating them.

After learning what exactly is a copyrighted work, what is copyright infringement, and what is “fair use”, you might think twice about using someone else’s content for your business.

We’ve all seen the above © or copyright symbol, but what exactly does it mean? Many might assume that the use the copyright symbol means that a work has been registered with the government in some way. Although some copyrighted works are indeed registered with the federal government, the use of the copyright symbol does not require federal registration.

Pursuant to United States copyright laws, a work is immediately copyrighted once it is in a “fixed tangible medium,” meaning that although ideas cannot be copyrighted, physical, tangible works can and are copyrighted once they have been created. In particular, the kinds of works that can be copyrighted include literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.

Once a work is created and copyrighted, copyright protection provides the owner of the work with a number of exclusive rights, which include:

●right to reproduce the copyrighted work in copies or phono records;

●right to prepare derivative works based upon the copyrighted work;

●right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

●in the case of literary, musical, dramatic, and choreographic works, pantomimes, and

motion pictures and other audiovisual works, to perform the copyrighted work publicly;

●in the case of literary, musical, dramatic, and choreographic works, pantomimes, and

pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

●in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

If you look closely at the exclusive rights listed above, you’ll notice that these rights are very significant; however, there are both exceptions and required licenses that have the effect of limiting these rights substantially.

Copyright Registration

Although not required, registering a copyrighted work is a simple process, and in addition to allowing copyright holders to file an infringement claim for money damages, copyright holders may consider registering their works because it creates a public record. Those who register their work also receive a copyright certificate.

Copyright Infringement

Copyright infringement, in its most simple form, means that an individual has infringed on the exclusive rights provided to copyright holders by U.S. Copyright laws. It is important to note that while individuals do not need to register a work with the U.S. Copyright Office, they are required to do so before filing a copyright infringement claim.

If a court finds that a particular use of a copyrighted work infringes upon the exclusive rights of a copyright holder, the court may issue an injunction to stop the infringing act and may impound the infringing work.

In addition to an injunction, copyright holders can often seek either actual or statutory damages; damages could exceed $1 billion, depending upon the case. Beyond financial consequences, infringers could face jail time.


If creative works are automatically copyrighted, how is it that the public has access to so many copyrighted works?

Copyright holders can license their work to others, and in some instances, they are actually required to license some of the exclusive rights listed above, either for a fee or some form of attribution.

For example, movie studios have the exclusive right to publicly show their copyrighted movies, but the studios license this right to movie theaters for a fee so that the public can purchase tickets to see them.

Although there are many ways for copyright holders to license their copyrighted works, the various Creative Commons licenses are perhaps the most widely-used licenses today.

Fair Use

Although the exclusive rights granted to copyright holders may seem quite broad and potentially oppressive, there is a fairly large exception to these exclusive rights, called “Fair Use.” One of the primary objectives of the concept of fair use is to allow criticism, comment, news reporting, teaching, scholarship, or research.

In determining whether a particular use of a work qualifies as fair use, the courts use the following factors:

●the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

●the nature of the copyrighted work;

●the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

●the effect of the use upon the potential market for or value of the copyrighted work.

Although some federal courts of appeals have placed most emphasis on the last two factors despite the existence of the first two, such courts in other parts of the country place equal weight upon each of the four factors. Unfortunately, this difference of interpretation by federal courts in different parts of the United States, which is called a circuit split, means that what is considered fair use in one part of the country may not be considered fair use in another part of the country. This discrepancy will not be more definitely resolved until the U.S. Supreme Court rules on the issue.

Claiming fair use may seem like a proverbial “silver bullet” to rebut a claim of infringement; however, the analysis involved with a particular claim of  fair use is fairly nuanced, quite sophisticated, and requires a fairly objective perspective.

Make Smart Choices Regarding Copyrighted Works

While copyright infringement extends beyond the online world, it is remarkable how frequently it happens online. David Price conducted the NetNames Piracy Analysis in September 2013, revealing that copyright infringement is running rampant online. His study showed that “Worldwide, 432.0m unique internet users explicitly sought infringing content during January 2013.” Just because something is posted on the internet doesn’t necessarily mean you can use it just by crediting the author or creator of the work. Hopefully with the information provided in this article, you can make smart choices regarding copyrighted works.

About the Author(s)

Steve Cook, Cook & Cook

Steve Cook is an attorney at Cook & Cook in the Phoenix, AZ area. He represents individuals, for-profit businesses, and charities in the capacity of outside/concierge general counsel. Steve also has experience as a co-founder of a digital marketing startup that received significant venture capital during his undergraduate studies. Cook & Cook| @sw_cook | More from Steve   

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