Today information can be transferred and shared around the world in a mater of seconds, with a click of a button on the Internet. The information that is transferred can be anything from family photos, song clips, to funny cat videos and quotes from text.
However, what many average Internet users do not realize is that this information is someone else intellectual property. In other words it belongs to the original creator.
As a creative professional it is just as important to understand the rights of others when using their works as it is in protecting your creative endeavors.
Intellectual property is defined as a work or invention that is the result of creativity. Intellectual property is protected by a number of laws; the which law depends on the type of property and usually falls under one of the following:
A copyright is form of legal protection for original authors of works, published or unpublished, and gives them exclusive rights to control reproduction and commercial exploitations.
Copyrights usually cover literary and artistic works, as well as architectural design. Copyrights protect works such as novels, films, music, drawings, photography and sculptures.
The primary basis of the copyright law in the United States is The Copyright Act of 1976.
When is a work copyrighted
The copyright protection only applies to the creator of original works. Once the original work is created (tangible) it protected by the copyright law; whether it is published or unpublished.
It is not required to register your work to benefit from the copyright protection. However, in the US it is necessary to receive certain benefits when suing a copycat in court.
Works are protected by the copyright for the life of the author plus an additional 70 years.
The longevity of the copyright protection has been extended over the years, primarily pushed by the movie industry, which are eager to retain the copyrights to films and characters indifferently.
Copyright Holders Rights
As owner of a copyright author has the exclusive rights to control how the work can be used. These rights are known are referred to as a bundle of right and allow authors to:
- Publish it.
- Reproduce it.
- Distribute it.
- Display it.
- Make “derivative works.”
- Perform it (in the case of music, plays, movies, etc.)
A copyright notice is a symbol or phrase that identifies the work is protected by the copyright protection.
Copyright notices should always be placed on your work in obvious spots, and should include the copyright symbol. The following is an example of a copyright notice:
Copyright © 2009 [COPYRIGHT OWNER’S NAME]. All Rights Reserved
Whether a copyright symbol is present or not, one should assume that any content on the Internet is copyrighted. When in doubt always ask for permission to use.
When distributing or publishing digital works, it is important the copyright notice be included in the metadata.
Metadata is data (information) that describes other data. Metadata information usually describes how data was created, the author, creation data, date modified, file size and format.
Metadata is created automatically. For example when taking a photo on a digital camera, the camera will create the metadata regarding the creation data, type of camera, camera settings, camera model and so forth.
However manually adding metadata tends to be more precise. By manually adding metadata authors can identify any copyright notices and other information.
Metadata can be edited using a variety of software applications. Adobe Bridge for example is a file management application that offers custom metadata creation. There are also online resources for editing and viewing metadata of digital photos, these include:
Metadata come in different types and formats. For example the metadata from a camera is called EXIF data. Most graphical software applications save metadata in one of two formats, either IPTC or XMP.
Understanding Work for Hire
Generally speaking copyrights belong to the author of the work, however many employees higher individuals under a work for hire contract.
The work for hire policy states that employer and not the employee, is considered the legal author. In some countries this is known as corporate authorship.
Work for hire usually applies to full-time employees or if specified in a contract of an independent contactor. The employee within the scope of their employment must prepare the work and work must be ordered or commissioned for use.
Creative professionals should always check their contract before including any work for hire projects in their professional portfolio, because it may be infringing on the copyright.
What is NOT Copyrightable?
Not everything can be copyrighted. The following is an example of works that cannot be copyrighted.
- Titles, names, short phrases, and slogans
- Familiar symbols or designs
- Variations of typographic ornamentation, lettering, or coloring
- Listings of ingredients or contents
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices
- Common information such as calendars, measurement charts, TV guides
Furthermore it is important to note that not all works are copyrighted. Works whose copyright has expired are considered to be in the public domain. Works in the public domain can be modified, copied, and disturbed.
Beyond Basic Copyrights
Besides traditional copyrights there are a number of other laws and resources available to original authors to protect their work.
Many of the items that cannot be copyrighted may be protected under trademark laws.
Trademarks are a sign (word or mark) that indicate ownership of product(s) or service(s).
Logos of major brands, such as the Nike® swoosh, the McDonalds® arch, or Apple Computers ® apple logo are all protected by trademark laws. Trademarks can also protect terms, titles and short phrases; like Chick-fil-A® “Eat Mor Chikin” ® slogan.
There are a number of symbols that can be used as a trademark notice, these include:
- ™ symbol can be used to denote unregistered trademarks (service or good)
- ℠ symbol can be used to denote a service mark, and can used instead of a trademark to denote an unregistered service
- ® symbol are used to denote trademarks that have been officially registered
Another form of licensing is the copyleft, which allows for works such as computer software, documents, music and art be used, modified and distributed for free, and any derived works must also be free.
Copyleft uses existing copyright laws to ensure that certain works remain freely available. The first copyleft license to gain extensive use was the GNU General Public License; which is a software license that allows users to use, study, distribute and modify the software.
The term open source refers to software that can be freely used, changed and shared by anyone and is made by a collaboration of many people under a license that meet the terms the open source definition. One such license is the GNU General Public License.
In some cases copyright holders want to share their works with others and allow them the ability to build upon the work, at the same time they do not want to give up all their rights.
The Creative Commons, a non-profit organization, which has developed easy-to-use copyright licenses, provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice.
These licenses are known as the Creative Commons licensees, and vary by the level and types of permissions you allow and include the following:
The Creative Commons also provide the tools that work in the “all rights granted” space of the public domain. On such tool allow authors to waive their rights and place their content in the public domain.
Understanding Fair Use
Using works without the copyright holder’s permission is considered copyright infringement. However, there are instances where individuals’ infringement may make limited use of a copyrighted work without asking for the permission of the original copyright.
Copyright infringement a violation of one or more of the copyright holder’s rights. Infringement occurs when one illegally uses the work such as by:
- Reproducing the work
- Publicly displaying the work
- Distributing over the Internet
- Taking photos of the work
- Create new samplings of the work
- Download an copy of the work
- Uses the work as their own
Plagiarism refers to the act of quoting another’s written work, without citing the source, and thereby passing it of as their own.
What is Fair Use
Limited use of copyrighted materials can be used without the requiring permission of the right holders, under the Fair Use doctrine.
The Fair Use allows for works to be used for certain purposes, such as for education, research, criticism, and open press. There is however, no one set rule on what may be considered Fair Use.
When determining Fair Use, there are four factors that the courts acknowledge:
- The purpose and character of the work
- The nature of the copyrighted works
- The amount of substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use on the market or potential market for the copyrighted work.