WHEREFORE THOU ART # 52
THE ESSENTIALS

Every year or so I like this column to double back and explain some of the fundamental basics of copyright law. The stuff is basic and important, and for some people, it's not obvious and may be even counter-intuitive. There's a ton of misunderstandings and myths about copyright that I find myself having to dispel over and over again. So, once more, with feeling. And if you've heard this one before, well, we'll see you next month.

Copyright is the law of creative expression, which includes things like literature, music, film, fine art, not-so-fine art, and choreography. Copyright does not protect titles, names, short phrases, lists, instructions, or, usually, databases. There needs to be some originality, some creativity, for copyright to attach. A Midwestern telephone company found this out in the 1990's when the Supreme Court decided that assembling names alphabetically with phone numbers lacked the "creative spark" required to invoke copyright law, and invalidated the company's copyright registration for its telephone book.

Ideas and facts aren't copyrightable. The expression of the ideas or facts are copyrightable, but not the ideas and facts themselves. Historians hate this; they spend years in deep research digging out the roots of history, only to find that after they announce their findings, somebody in Hollywood makes a movie based on their research. The historian doesn't get a piece of the movie. Why? Because history is fact (or alleged fact), and while it might be a good idea to reward historians for good work well done, it would be a terrible idea to let someone own history. So, historians don't get a copyright on the facts they dig out of history.

Copyright doesn't reward effort or craft, just creativity. If you spend five minutes making a minimalist sculpture out of clay, and it's original, you've got a copyright in the sculpture. If you spend five years slavishly making an exact reproduction of Michelangelo's David out of marble, you'll have a nice sculpture, but no copyright.

Something doesn't have to be unique to get copyright protection, just original. If two identical works were independently created, i.e., one didn't copy from the other, both would be entitled to copyright protection. So if you spend five years and just happen to create a marble sculpture that looks exactly like Michelangelo's David, and you'd never seen Michelangelo's David (you would have to be able to say with a straight face "Michelangelo who?"), then you would have a copyright in your sculpture. And probably some 'splainin' to do.

You don't get a copyright for something that's purely functional. That's the province of patent law, the law of inventions. If form can't be at least conceptually separated from function, there's no copyright. For example, furniture designers only get copyright to the extent that the design isn't driven by functionality. And what exactly this really means has been confounding courts for decades. But that's the general idea.

Your copyright is a thing onto itself. It doesn't reside in the work, the thing you created. If you sell a painting, you still keep the copyright to the image of the painting, and can continue to sell prints, notecards, and lunchboxes with the image of the painting. The buyer of the painting doesn't get anything other than the painting and the right to display it. This surprises some people, but it's the way it is. It's easier to understand, I suppose with music or literary works, where only copies are generally sold. No one buys a book or a CD thinking they somehow now own the copyright to the book or CD.

You don't have to do anything to get copyright protection for your work except create it. Copyright arises upon creation in fixed form. So a song you came up with in your head, while nice, doesn't count. It has to be notated or recorded somehow. Whistle your song into a voice recorder, bingo, you've got copyright.

This means you don't have to register with anybody to gain copyright protection in your work. So, what does the Copyright Office do? Well, the Copyright Office (which is part of the Library of Congress) will accept and file your copyright registration, which are nothing more than your sworn statement that you created a work. That's really about it. They take your word for it until somebody comes along and tells them otherwise.

So why bother registering? Lots of reasons. Congress decided a long time ago that registering copyrights was something to be encouraged because it promotes order by having a public record of ownership, and at one time, it was thought that a huge national mega-library could be made by offering incentives to people to register their stuff. So there are some powerful incentives built into the law to get people to register their copyrights. For one, if you ever need to go to court to protect your copyright, say somebody rips you off by selling toilet paper printed with the image of your painting, you'll need to be registered before the court will hear your case. Registration is an admission ticket to court.

As a further incentive to register your copyrights, if you are registered before any infringement of your work takes place, the law provides you with a shot at enhanced damages and an award of attorneys' fees if your court case is successful. Because of this, an infringer is much more likely to come clean and settle with you if you have a registered copyright. And an attorney is infinitely more likely to take your infringement case if you walk in with a registration certificate. By the same token, when somebody accuses a client of mine of infringement, I usually first ask to see the accuser's registration certificate. Quite often, that's the end of it.

I tell clients that if they are producing and distributing copies of their works or putting their stuff up on the internet that they ought to register their copyrights with the Copyright Office. And you can do it yourself-it's only slightly more difficult than, say, subscribing to a magazine. All the forms and instructions you need are available at www.copyright.gov. Registration costs $45, and one day very soon you'll be able to register online for $35. And you can register unlimited numbers of unpublished works on a single registration, which is a bargain and a half.

And no, mailing stuff to yourself (the so-called "Poor Man's Copyright") doesn't accomplish anything except for filling up your mailbox. Don't bother. It ought to be called "Stupid Person's Copyright." And don't let anybody convince you otherwise.

Since the late 1980's it has not been a requirement to put a copyright notice on your work. Before that, if you published something without the notice (the "c in a circle", your name, and date) your work fell into the public domain. Not only was that a little harsh, but it was out of step with the rest of the world, which had long dropped the notice requirement. But it's always a good idea to have a copyright notice on or near copies of your works, just to let people know that you're actively claiming copyrights to them. We live in a cut-and-paste world where works get recycled, recontextualized, and often just plain stolen, and sticking a notice on a work is a gentle reminder that will make somebody think twice before illegally appropriating your work.

There you have it. This is obviously the tip of the iceberg. I spend entire semesters teaching law school students this stuff and by exam time wonder if I've only scratched the surface. There's a ton of nuance. But leave nuance to the lawyers, or grab it when you need it. These are the basics that creators, along with everybody else, really ought to know.

© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.