Copyrights for Creators and Entrepreneurs

What is a Copyright?

A copyright is a collection of rights that are automatically conveyed to someone who creates an original artistic, literary, or intellectual work. This includes novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital format.

When someone has a copyright, they have the right to reproduce the work, create derivative works, distribute copies, perform and display the work publicly, and authorize others to do the same.

You can think of how copyrights can be used or licensed like a toolbox. You can keep all of your tools together and use them yourself, let someone borrow just a screwdriver or just a wrench, let someone borrow your entire toolbox, sell each tool individually, sell the entire toolbox, or let someone use some or all of your tools to create something unique. So a copyright allows the owner to choose the ways in which their copyrighted works are made available to the public.

The idea behind copyright protection comes from the U.S. Constitution. The Framers believed that securing the exclusive rights of authors to their writings for limited periods would “promote the progress of science and useful arts.” Copyright law encourages people to produce original creative works by rewarding them with certain exclusive rights to profit from their intellectual property.

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What Qualifies for a Copyright?

You can copyright almost any type of creative work, including

Website downloads
Videos
E-books
Social media posts
Books
Pictures
Cartoons
Downloadable PDFs and templates
Virtual courses, agendas, and trainings
Product listing descriptions
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Motion pictures and other audiovisual works
Sound recordings
Architectural works

Some things you can’t copyright include

Single words or short phrases
Book titles
Headlines
Slogans
Typefaces
Improvised performances
Non-scripted live speeches

So from our list above, single words or short phrases (like the name of a product or company), slogans, and typefaces would be more appropriate for trademark protection than copyright protection.

As an example, J.K. Rowling couldn’t trademark her first book, Harry Potter and the Sorcerer’s Stone, but she could copyright the content of the book. Down the road, when the book became part of a series, she was able to trademark ‘Harry Potter’ because it had become a brand.

Digging in a little more, for something to qualify for copyright protection, it has to meet certain criteria for originality and fixation.

So what does that mean?

Originality means that the content has to be created through the “fruits of intellectual labor.” That just means that the author (or creator) has not copied the work from another, and that it took some minimal level of creativity to make it. A work can qualify for a copyright even if it is identical to another work just so long as it wasn’t directly copied. The “creativity” element sets an extremely low bar - it only requires that the work possess some creative spark, no matter how crude, humble, or obvious it might be. That being said, single words and short phrases don’t meet the bar because anybody could have (and many people likely have) put them together that way.

So for Example, the name Frozen isn’t copyrightable. Other people are allowed to use that word without Disney’s permission. However, if someone else tried to make a movie about an ice princess and call it Frozen, Disney may have a case for trademark infringement.

In copyright law, the requirement for fixation means that the work must be recorded in a form that can be perceived directly or by means of a device “now known or later developed.” That’s a stuffy way of saying it can’t be a one-time thing. So writing, drawing, sculpting, recording, and making notations all count as fixation, whereas improvisational or unrecorded performances of music, dance, or drama don’t. An ice sculpture doesn’t meet the criteria for fixation, but data saved on a computer harddrive does. If you type something into a Word document but don’t save it, it isn’t fixed. Once you save it, it is.

A work can be considered fixed regardless of whether it’s in a physical or digital form. For example, a literary work such as a book or magazine article may be fixed in:

Printed paper format, viewable directly by the reader
A digital e-book file, viewable only with an e-book reader, computer, or similar device

The fixation must be made by the author or with the author's permission.

Should I Register My Copyright?

Copyright protection is for all business owners, but those who rely on the Internet and social media to keep their business generating revenue are particularly susceptible to copycats, scammers, and counterfeiters. You should definitely be thinking about copyright protection if…

You or someone you employ creates online media content that you use to market your brand or make money - like someone who creates and sells Instagram templates or who earns ad revenue off of Youtube videos
You sell online PDFs or other downloads available instantly for a small fee
You offer an online course, training or service
You use a lead magnet - like an e-book or free guide - to build your email list
You are selling a product and have a lot of manuals and informational materials

Registering your copyright can have a few benefits. First, while it can’t totally prevent people from stealing your content, it can deter them. It can also provide recourse if someone does end up stealing your work. Another advantage of a copyright is it can make your content - and your business - seem more established, trustworthy, and professional to the public.

What Doesn't Qualify for a Copyright?

Some things you can’t copyright include

Single words or short phrases
Book titles
Headlines
Slogans
Typefaces
Improvised performances
Non-scripted live speeches

So from our list above, single words or short phrases (like the name of a product or company), slogans, and typefaces would be more appropriate for trademark protection than copyright protection.

Copyrights and Online Media

The main cause of copyright confusion happens online. Can I copy a social media post? Is reposting a copyright violation? Do I need a source for this material?

These are all valid questions that business owners face from both sides of the coin, trying to follow copyright guidelines while marketing their business, and also monitoring and enforcing their own brand.

The last major revision of copyright law was The Digital Millennium Copyright Act of 1998 (DMCA), which allows copyright holders to send a notice to their internet service provider (ISP) to start the process of removing the offending content.

If you have questions about your rights as a copyright owner, or concerns about how your practices may violate copyright law, feel free to reach out to us. We love helping entrepreneurs and small business owners like you get a grasp on their intellectual property rights and secure and protect their business, success and livelihood.

To Regram or Not to Regram: Copyright Ramifications of Social Media

Instagram allows users to share images and videos of themselves or others for public viewing and, hopefully, recognition. Very generally speaking, users of social media applications like Instagram typically post original material, so they have little concern about infringing on someone else's copyright.

However, copyright concerns do arise whenever someone else's original content is reposted by another user. Essentially, "reposting" refers to the act of taking someone else's original posted content and posting it again on your own social media account, and "regrams" are reposts of Instagram content specifically.

How to Comply with Copyright Law on Social Media

It is fairly clear that by copying another person's pictures or other creative content and using those pictures or content for your own gain, copyright infringement is occurring. The question is, how can authors protect themselves from an honest mistake that resulted in a copyright violation?

Use Only Original Content. Post original content, or, if possible, change the copied content to the extent that you can claim a "modicum" of creativity.
Ask for Permission. Remember that the definition of infringement includes the language "without...permission." If you have permission, you're not infringing.

Consider Permitted Uses. Copyright law allows even otherwise infringing use if that use qualifies as "Fair Use." Whether a use qualifies as fair use depends on balancing four factors: the purpose of the use, the nature of the work, the amount used, and the effect upon the potential market.

What to Do When Someone is Copying Your Work?

We hope you never know that sinking feeling when you realize someone is riding on your coattails and taking away from the success of your business by copying your materials, but, as a successful business owner, it’s likely you’ll experience this problem, and maybe even more than once.

If you think your work is being copied you should ask yourself two questions: (1) is your work entitled to copyright protection? (2) Is your work really being copied? If you can answer “yes” to both of those questions you can take legal action to stop the copycat.

If you’re not sure if you meet their criteria, call The Boutique Lawyer. Your job is to grow and run your business. Our job is copyrights. We can review the details of your current situation and advise on an appropriate action plan, which may include the following steps based on the severity of the infringement:

A friendly letter or email - A letter to the copycat advising them of their breach of copyright and asking them to remove the material is sometimes enough to stop the issue before it gets out of control. Sometimes the copying isn’t malicious, but from an uninformed action of a fan or student who doesn’t know any better.
Cease and desist letter - The Boutique Lawyer can draft a letter demanding that the infringement stop.
DMCA takedown request - You can file a request with the website controller to have the online content that is allegedly violating a copyright removed.
File a lawsuit - You have the legal right to file a lawsuit and take the infringer to court over the issue.