How Copyright Works and What Protections It Grants

How do you protect the creative work you create? The primary function is through copyright law, but it’s an extremely complex area of law, with exceptions and gray areas.

If you plan to profit from your work, you may want to register your works with the U.S. Copyright Office. This is important for businesses that have valuable creative assets or products.

We’ll explain the basics of what you own and how to protect it, as well as how you might get licenses to use other work. It’s a good idea to get legal advice before pursuing action on copyrights, and before you use any creative work you don’t own.

What is copyright?

Copyright is an intellectual property right that covers many forms of expression, from visual art to writing to music. Almost any work that satisfies the requirements of being original and tangible is copyrightable.

An original work of authorship

The U.S. Copyright Office defines authorship as something independently created by a human author without copying something else. The work must also have a “minimal degree of creativity,” although this doesn’t have a clear threshold.

Not all works are creative enough to be copyrightable. Lists of ingredients, titles or slogans, and generic symbols may not qualify.

A tangible form of expression

The expression should also be in a fixed form. This means you have recorded the work in a “sufficiently permanent medium.” According to the USPTO, a permanent medium means that the “work can be perceived, reproduced, or communicated for more than a short time.” Fixed forms could include digital publishing, paintings and sculptures, photographs, videos, and recordings, among many others.

The protection doesn’t include intangible or non-expressive things such as these:

• Ideas or concepts
• Systems or procedures
• Principles or discoveries

For example, if you improvise a speech in public, copyright may not be able to apply to the act of you speaking the words because there’s no fixed record of them. But if you wrote down or recorded the speech, you may be able to copyright those, because they are fixed expressions.

Human authorship

In recent years, the “human” part of copyright has become the subject of debate. The U.S. Copyright Office issued a report on artificial intelligence, stating that works entirely generated by AI cannot be copyrighted.

Some people have nonetheless attempted to copyright AI-generated works without success (so far). Acceptance or denials are case by case and may depend on how much input humans had in the creative process.

Copyright law is distinct from trademark law and patent law. Each type of intellectual property right protects something different and has different rules. For example, trademarking a phrase may give you some control over how that phrase is used in commerce, but it doesn’t typically grant you ownership of the words themselves.

Copyright registration

While copyright protection is automatic, your options for enforcing it may be limited unless you officially register the work. Registering copyrights with the U.S. Copyright Office creates a public record and is a required step before you can file an infringement suit over a U.S. work.

With registration, you can bring an infringement claim in court if you believe that someone has unlawfully copied or profited from your work. If you’re selling or otherwise profiting from your work, registering it might be particularly important to you.

What rights does copyright grant?

The basics of copyright are in the name. At the core, it grants you the right to determine who can create copies of your work. If someone creates a copy of a protected work without permission, that could be copyright infringement.

Creating a copy could mean a digital copy, like posting an existing blog post onto another website or uploading a file for other people to download. Physical copies might include photocopying an art piece or the pages of a book.

With copyright protection, you may be able to limit this activity through the courts. Or you might be able to provide licenses that permit people to use your work.

You have a lot of choice in how you license your work, and many different types of licenses exist. You can sell limited rights to other people or grant general licenses that let people use your work for free under certain conditions. Alternatively, you can sell the copyright itself.

Copyrighted work and fair use

“Fair use” is a doctrine that may protect some uses of copyrighted works without permission. It generally exists to limit and balance copyright law so that it doesn’t unnecessarily limit expression.

The rules governing fair use are complex and situational. There are general situations that courts check in fair use:

• Critique: Courts might find it fair to use copyrighted material in limited amounts in critiques of that material.
• Educational: Courts might find it fair to use copyrighted material in certain educational contexts or contexts in which it serves a public interest.
• Nonprofit: Courts might find it fair to use copyrighted material if it isn’t for a commercial purpose.
• Transformation: Courts might find it fair to use copyrighted material if the resulting work is significantly different and contains new original authorship.

Every case is unique, and just because a piece of work falls under one or more of these categories doesn’t mean that fair use applies. When making fair use decisions, federal courts typically consider four factors:

1. Purpose and character: How is the work used and why?
2. Nature of work: What is the copyrighted work, how “creative” is it, and what is its original purpose?
3. Amount used: How much of the original work was used?
4. Market impact: How likely is it that the new work will harm the existing or future market for the original?

Remember that fair use is a defense against infringement accusations, not blanket permission. If you’re planning to use someone else’s work for your business, get legal advice to understand the risk.

Who owns the work when someone else creates it?

People often sell temporary or limited rights to their work, not exclusive ownership. This distinction is important for you as a business owner because you need to use the correct language in your contracts.

Works can be defined as “work for hire” if specified in an employment or contractor agreement. In this case, you, as the business owner, gain the copyright if the person who is working for you creates intellectual property.

Rights and licenses aren’t things you should navigate without legal advice. You might not discover an issue until you find out someone has been using work you thought you owned.

LegalShield® Small Business Advanced and Premium Plans include limited consultations for copyright matters. Plans also include services for general legal review of contracts, and you can consult with provider lawyers when you need advice.

Finding works you can use for your business

If you don’t have the budget to hire employees or contract new works, there are other options you can use, depending on the source. You can get affordable or even free work you can use in your business if you look carefully and follow licensing rules.

These are some potential ways you could source existing works with a lower risk of infringement:

• Use works that are in the public domain.
• Look for special open licenses that permit commercial use.
• Purchase licenses to use works commercially.
• Purchase stock images or assets from people or websites that offer them.

A LegalShield Provider Lawyer can help you understand licenses and how to comply with them.

Get legal advice for your business with a LegalShield Advanced or Premium Small Business Plan

Copyright law is complex, and disagreements may require going to court to resolve. For these reasons, it can be helpful to register works that you care about and create clear contracts. Records and clarity help to avoid accidental disagreements.

With a LegalShield Advanced or Premium Small Business Plan, you can get limited consultation about your business’s intellectual property, including copyrights and trademarks. Provider lawyers can review employment and contractor agreements to help clarify your rights. With your small business membership, you can also get help with debt collection, billing disputes, IRS audits, and other common legal matters.

With a LegalShield Business Membership, you can focus on growing your business knowing that a provider law firm is just a call away.

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