What is copyright and what constitutes fair use? Do I need to register a copyright for my creative work to be protected? How long is a work copyrighted, and when does it enter the public domain? Are there advantages to using creative commons licensing or copyright?
In a recent course I took at the Brooklyn Brainery, our class took these questions head on to discuss the need to protect creative work and limit the exploits of copyright trolls. Sometimes referred to as intellectual property, copyright is a kind of property right (and a Constitutional Right in the US) which protects the use of creative work. Of course creative work is unique compared to other kind of property, so copyright is created whenever it’s “fixed in a tangible form of expression” by its creators, whether it’s a written novel or a music recording. Copyright gives its owners the exclusive right to reproduce the work, derivative works, and public performances of it.
There’s a careful legal balance between protecting the intellectual property rights of their owners and promoting the free expression which is guaranteed as a constitutional right. For example, in the music recording industry many musicians don’t profit from sales of their recordings after they cede to their labels/distributors ownership to copyright for their work, sometimes waiting years to regain the copyright to their own songs. Likewise the creators of mash-ups and remixes such as Girl Talk make a legal balancing act necessary to avoid infringing on copyrights while using elements of old recordings to create something new.
While media law is a continuously evolving field and largely a matter of interpretation for the judges, over time some precedence has emerged that provides some legal framework. As we learned in our class for general purposes, here’s the four requirements you need to meet for Fair Use of copyrighted works:
- The Purpose and Character of the Use
- Use should be transformative, meaning it adds new value or changed the original expression. For example, some music sampling or mashups/remixes meet these requirements
- Is the purpose to make money? Is the work a parody or satire (or something else)?
- Nature of the Copyrighted Work
- There’s a need to protect works of fiction and promote authorship, but courts generally agree use of historic facts should be available for public use.
- Does the work need protection? Until a work is published it’s less of a “fixed object” than those already created.
- Amount and Substantiality of portion used
- While you can’t copy the whole work or the “heart” of it that makes it most valuable, it’s generally acceptable to excerpt small parts of a copyrighted work
- Effect on the Market
- Will the use negatively impact the market for the original work? If people are likely to buy it instead of the original, it could cause damage against the copyright holder
- Sometimes a parody can become more popular than the original, but it shouldn’t count against it’s use because it’s not meant to replace the work it’s based on
On the internet where anything can be copied, pasted, and published in a matter of minutes, copyright becomes confusing to many who’ve had little prior experience in publishing, not to mention difficult to enforce for copyright holders. On the other hand musicians and photographers should be able to decide how their work can be used, whether by individuals working on their own websites or by companies/organizations who want to use their work.
So what can writers/photographers/designers/programers do to protect their work? Although creative work is automatically copyrighted through the very act of it’s creation, you should consider registering your creative work which will create a public record of who owns it and provides a legal reference that will provide some protection. The good news is our class instructor told us registration is cheap, as little as $35 to register 1000 photographs for instance. It’s a small price for a little piece of mind that will help identify you as its owner/creator, and best of all you maintain the option to share your work with whoever you’d like.
Another option for those who want to share their work even more openly is using Creative Commons licensing, a framework made popular by Lawrence Lessig to help the Internet generation continue sharing remixes and mash-ups. Like with Fair Use, Creative Commons provides a framework for appropriate use of intellectual property, and has the added benefit of making the copyright more transparent and hence easier to share creative work. For instance I share my photographs on Flickr under a CC-license, so that bloggers and creative professionals who find my pictures useful can use them to illustrate their own stories and ideas. As a result my photos are featured on websites as diverse as Wired, the Consumerist, and even RocketBoom, not to mention this site. Ultimately it’s the responsibility of the copyright holder to ensure a work is protected, and where and when it can be used by others.
Extra credit: Explore my photos published on other websites using the Creative Commons licensing. But keep in mind I retain all rights to the blog posts I write on this website.