This is a short list of questions we’re asked all the time. You can find a more complete copyright FAQ at the U.S. Copyright Office’s website at www.copyright.gov.

HOW DO I OBTAIN A COPYRIGHT?

You probably already have one. Copyright protection is automatic. As soon as you create a work and fix it in tangible form, copyright law protects it. You don’t need to register your copyright or apply to a government office for approval. At one time, U.S. law required authors to affix a copyright notice to their works, but Congress eliminated that requirement in 1989. However, there are many great reasons to register a work with the U.S. Copyright Office. See below for how to do so.

WHY SHOULD I CARE ABOUT COPYRIGHT?

When you spend a lot of time and energy creating something, aren’t you proud of your work? How about that social studies report you finally finished, that poem you composed for your mom that made her smile, that cool logo you came up with for your soccer team, the great song you wrote for the school play, or even your journal that you don’t have to do but you enjoy it so much, and it’s special to you? Well, all these are your creations, and you’d probably be pretty upset if someone just copied any of them without your permission. That’s where copyright comes in. Copyright law gives you a set of rights that prevents other people from copying your work and doing other things with your work that you may not like.

As the creator of your work, you should have the right to control what people can and cannot do with your work. In the United States (one of the world’s biggest sources of creative works like movies, television shows, books, computer games, etc.), this right to control your work has actually turned into big business. but that’s what allows all the creative people around us to get paid for coming up with all the wonderful songs, shows, books, paintings, movies and other great works that we enjoy. Just think of all the cool songs your favorite band wrote; the great books you love reading; the plays, movies and television shows you love to watch again and again. These talented musicians, authors, illustrators and screenwriters deserve our respect and appreciation, and they deserve to make a living from the hard work they put into their creative works. Otherwise, most of them wouldn’t be able to produce as many (or any) of the songs, books, plays, movies and TV shows that you like. That’s what copyright is all about. It reflects our appreciation for all the hard work that goes into creating “original works of authorship,” as well as our respect for the right of creators to control what others can and cannot do with their works.

WHO OWNS THE COPYRIGHT IN A WORK?

The copyright in a work of authorship immediately becomes the property of the author who created it at the moment it is put into fixed form. No one but the author can claim copyright to the work, unless the author grants rights to others in a written agreement (such as to the author’s publisher or record company) or is an employee creating the work as part of their job. Usually, you can tell who the author of a work is–the person who created it. But sometimes, it is not quite that easy.

 

Two or more authors

When two or more people intentionally create a work together, each of them is an author: they are called “joint authors” and the work is called a “joint work.” Joint authors are co-owners of the copyright in the work, unless they agree otherwise. For instance, if your art class paints a mural together, each of the students who painted part of it is a joint author and a copyright owner.

 

Works made for hire

Works made for hire (a work “made for hire” by an employee and certain kinds of commissioned works) are considered to be authored by the employer or the commissioning party. So if your boss asks you to write a report as part of your job, the company you work for gets all the copyright protection that would otherwise have been available to you.

WHAT WORKS ARE PROTECTED BY COPYRIGHT?

Copyright protects “original works of authorship” that are Fixed in “a tangible form of expression.” The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or other device. Copyrightable works fall into the following categories:

 

  • literary works (which includes computer software);
  • 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.

WHAT IS COPYRIGHT INFRINGEMENT?

Anyone who exploits any of the exclusive rights of copyright without the copyright owner’s permission commits copyright infringement. If an infringement lawsuit brought in court is successful, the infringer will have to pay the copyright owner the amount of money the infringer made from using the work or that the owner would have made if the infringement had not happened. If the copyright is registered with the U.S. Copyright Office, the infringer may also have to pay the copyright owner what’s called statutory damages–an amount set by the judge that will usually be higher. In addition, an infringer may be found guilty on criminal charges and have to pay criminal penalties. Moreover, the infringer will also be stopped from making any further use of the work.

 

Proving Infringement

In order for a court to determine that a copyright in a work has been infringed upon, it must find that: (1) the infringing work is “substantially similar” to the copyrighted work, and (2) the alleged infringer had access to the copyrighted work–meaning they actually saw it or heard it before the infringement occurred. There are no clear rules for deciding when “substantial similarity” exists between two works. Courts look for similarities in appearance, sound, words, format, layout, sequence, and other elements of the works.

 

Fair Use

The exclusive rights of the copyright owner are not unlimited. The copyright law establishes some limitations on these rights. One of the most important limitations is the doctrine of “Fair Use.” The “Fair Use” doctrine allows limited copying of copyrighted works for several purposes, including transformative, educational and research purposes. The copyright law provides that reproduction “for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement of copyright. The law lists the following factors, which courts must consider together in determining whether a particular use of a copyrighted work is a permitted “Fair Use,” or is instead an infringement of the copyright:

  • the purpose and character of the use, including whether theuse in question transforms the work such that it gives the work a new and different purpose or character, is of a commercial nature, or is for nonprofit educational purposes: noncommercial educational use is more likely to be a fair use;
  • the nature of the copyrighted work: the more factual and less creative the work, the more likely it will be afair use;
  • the amount and substantiality of the copyrighted work used in relation to the copyrightedwork as a whole: the more taken the less likely to be a fair use; and
  • the effect of the use upon the potential market for or value of the copyrighted work: in other words, is the use taking away from the copyright owner money that s/he might have been making from the work?

No case will be decided on just one of these factors. Courts are supposed to look at all of the factors and balance them together. Courts may consider some factors more important than others in a particular case.

WHEN DO I NEED PERMISSION TO COPY WORKS?

Unless you are absolutely sure, relying on the doctrine of “Fair Use” to avoid seeking permission to copy a work is risky. Despite what you may have heard, there are no set rules about what kind of use is “fair” and what is “infringing.” For example, using less than a certain number of words from an author’s work does not automatically constitute fair use. Courts apply the four factors described above on a case-by-case basis, and one court’s interpretation of the factors could easily differ from another’s. Thus, it is often impossible to predict whether or not a court would find any given unauthorized use to be “fair.” The best course of action is simply to seek permission for all copied material you intend to use.

To obtain permission, you must determine who is the copyright owner of the material you intend to use, contact the owner, obtain permission to use the work in the territory and format you intend, and, in some cases, pay the owner a fee. Permission fees are negotiable and will vary depending on the amount and nature of the material you intend to use. If the use is not commercial–meaning no one is trying to make money from it [owners of plays charge schools royalties almost across the board – wouldn’t use this example – perhaps you could say a photo for a teacher’s lesson PowerPoint presentation or something], then you may be able to get the rights for free. The publisher or distributor should be able to provide you with ownership information or even obtain and provide the permission. The records of the Copyright Office, if kept up to date, should tell you who owns the copyright if the owner has chosen to register her work. These records are open to the public, and the Copyright Office will search its records on request for an hourly fee.

HOW DO I OBTAIN COPYRIGHT PROTECTION?

Beyond creating a copyrightable work, an author need do little else to gain copyright protection. Neither publication, nor registration with the Copyright Office, is required today to secure copyright.

 

Copyright Exists Automatically Upon Creation

Copyright exists immediately and automatically when the work is created, that is, when it is fixed in a tangible copy for the first time. A “copy” is a material object from which a work can be read or visually perceived, either directly or with the aid of a machines or devices, such as books, manuscripts, sheet music, film, videotape, or microfilm. A song can be fixed in sheet music (a “copy”) or in a CD, or both.

 

Notice of Copyright

The use of a copyright notice has not been required under U.S. law since March 1, 1989. Prior to that date, U.S. law did require notice to obtain copyright protection, and the use of notice is still relevant to the copyright status of some older works. Use of notice is still important, however, because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year that it was first sold or distributed to the public.

 

Form of Notice

The notice for visually perceptible copies (like books and posters) should contain all of these items:

  • The symbol © (the letter “C” in a circle), or the word “Copyright,” or the abbreviation “Copr.”;
  • The year of first publication of the work; and
  • The name of the copyright owner.

Example: © 2001 John Doe

 

What if the work isn’t published? See above. It could be unpublished but still visible to the public (i.e. put on a website with a warning not to download or use in any way)

WHEN AND HOW DO I REGISTER A COPYRIGHT?

Registration of a copyright with the U.S. Copyright Office creates a public record of the basic facts about a particular copyright. Registration may be made any time before the term of copyright expires. Registration is not needed for copyright protection, but there are many good reasons to do so.

  • Registration establishes a public record of the copyright.
  • Completingthe registration process is necessary before an infringement lawsuit may be brought.
  • If registration is made within 3 months after selling or distributing the work to the public or prior to an infringement of the work, a copyright owner will be eligible for Statutory Damages and attorney fees if he or she sues for infringement and wins.

Please see the U.S. Copyright Office’s registration webpage for information on how to register a copyright.

 

Effective Date Of Registration

A copyright registration is effective on the date the Copyright Office receives an application with all the required items in acceptable form, no matter how long the office takes to process the application and mail the certificate of registration.