IP Legal
Copyright basics for bloggers and content creators
March 16, 2015
3

My in-depth guide to understanding the basics of copyright law

I posted a quick intro to all of the important types of intellectual property a few weeks ago. Now, I’d like to go a bit deeper into each one. This post will focus on copyright basics for bloggers and other Internet entrepreneurs.

As usual, this is only about US copyright law, since that’s all I really know about. For international issues, check with a lawyer in your country.

Let’s get started!

Why does copyright matter for me and my business?

There’s a tendency to not care about copyright or to believe misinformation out there on the Internet. I’m here to tell you, though, that this could be a big mistake.

If you are creating content on the Internet, you should know your rights and the rights of others under copyright law for two main reasons:

  • People’s infringement of your copyright can costs you A LOT of money; and
  • Infringing on other people’s copyright can cost you A LOT of money

What do I mean?

Well, if others are stealing your content or your copyrighted material, you could be losing out on sales, they could be messing with your SEO, they could be stealing potential audience members or customers – the list goes on. Not knowing what rights you have and how to exert them could damage your business.

Not knowing what rights you have and how to exert them could damage your business. If you infringe on others’ copyrights, this could be even worse.

If you infringe on others’ copyrights, this could be even worse. Taking the copyrighted works of others, even inadvertently, could lead to a lawsuit that could end up costing you your business (or personal assets, if you don’t have a separate business entity!).

Look at the recent case involving the Blurred Lines song – more than $7 million in damages for copyright infringement. While not every case will reach those monetary levels, even a smaller amount of damages can cripple you financially.

What kind of things get copyright protection?

So, let’s start at the beginning: What can you copyright and how does it happen?

Any original work of authorship that is fixed in a tangible medium of expression is copyrightable. That was a mouthful of legal jargon, wasn’t it? Let’s break it down.

An “original work of authorship” is any work that is created with at least some spark of creativity. This means that a book, an essay, sheet music, dance choreography, a drawing and a computer program would qualify. It just has to be original to YOU, the author – copyright law allows for “independent creation” of similar things by two different authors, as long as there wasn’t access to the other similar work (more on that later).

Now, the thing that is created has to be more substantial than just a slogan or a book title – those things may be more eligible for trademark protection. However, the bar for something to have copyright protection is really, really low.

What about “fixed in a tangible medium of expression”? This just means that the copyrighted work can’t be in the “idea” stage – it has to have been written down, saved on a computer or recorded by a camera. SOMETHING tangible, more than just being inside your brain, usually qualifies.

An “original work of authorship” is any work that is created with at least some spark of creativity.

The good news is that copyright exists as soon as the work is “fixed” in that tangible medium. So as soon as you write down your story or save your file, you’ve got protection. You can’t really do anything about it, since suing someone requires a federal registration, but the date of protection does start then.

Who owns the copyright in content that I pay others to make?

What if you hire someone to write a blog post or take a photo for you? Who is the author, then?

This really depends on the employment and contract relationship between the two of you. This is where the concept of “work for hire” in copyright law comes into play. If the person creating that work is categorized as your employee, then you are the author of that work for copyright purposes. It is known, legally, as a “work for hire.”

If the person creating that work is categorized as your employee, then you are the author of that work for copyright purposes. It is known, legally, as a “work for hire.”

On the other hand, if that person is an independent contractor, the situation gets more complicated. In order for work done by a contractor to be considered a work for hire, three things must happen:

  1. The work must be specially commissioned (it can’t be paying for something that’s already been created);
  2. There must be a written agreement between the employer and the contractor BEFORE the work starts, stating that it’s a work for hire; and
  3. The work must be one of nine specific types of works.

Those nine types of works are:

  1. a translation,
  2. a contribution to a motion picture or other audiovisual work,
  3. a contribution to a collective work (such as a magazine),
  4. as an atlas,
  5. as a compilation,
  6. as an instructional text,
  7. as a test,
  8. as answer material for a test,
  9. or a supplementary work, meaning that it is “a secondary adjunct to a work by another author” like a foreword to a book.

Look, I didn’t write the law. I know it seems complicated, but it’s really not that bad. You can probably fit what you’re doing in one of those categories.

When I write agreements for people hiring independent contractors, I also add a backup assignment of copyright, just in case a court would find that the work for hire section doesn’t apply. It’s best to be prepared.

Want to learn more about employees versus independent contractors? I will write a post about it soon, but in the meantime check out what the IRS has to say about it.

When I write agreements like this, I also add a backup assignment of copyright, just in case a court would find that the work for hire section doesn’t apply. It’s best to be prepared.

One other issue is getting work created by someone on Fiverr or eLance. Is there a written agreement? Does it comply with work for hire laws?

Fiverr’s terms of service do point this out – the works created there do fall under work for hire doctrine, though of course I would say you should have a separate agreement between you and the author. eLance, on the other hand, does not specifically state that it is a work for hire, though it does have terms that say that the person commissioning the work is the author. I don’t entirely trust it, but it’s better than nothing.

What rights do you have as an author?

Under US copyright law, you have certain specific rights as a copyright owner. These are:

  • the right to reproduce the copyrighted work;
  • the right to prepare derivative works based upon the work;
  • the right to distribute copies of the work to the public;
  • the right to perform the copyrighted work publicly; and
  • the right to display the copyrighted work publicly.

If anyone is doing that with YOUR copyrighted works without a valid defense, they may be infringing on your copyright. Valid defenses might include that they have a license or permission to do so, or that their use is a fair use, which we’ll cover in a bit.

How do you know if you’ve infringed someone’s copyright?

Basically, copyright infringement requires two things:

  1. access to the copyrighted material; and
  2. substantial similarity to the copyrighted material.

Remember before I said that things could be independently created. This means that two people CAN have copyright protection for having the same idea, if they don’t know about the other.

However, if something has been released out in the wild, such as published on your website or made available to the person you’re claiming infringed your copyright, the access requirement will probably be met. If you haven’t published or released the material, though, the party you claim infringed on your work cannot be liable – they never saw it in order to copy it!

Just because they come up with something similar does not make it copyright infringement (patents and trademarks are different on this point).

As always, the real analysis is more complicated than this, but this is the basic way that they determine copyright infringement.

The second part, substantial similarity, is a little more complicated. Essentially, the court looks at it two ways.

First, they look at how close the two things are, the original work and the supposedly infringing work. Are the characters similar? Are the colors similar? You get the idea. If it’s a direct copy of a photograph, then this is a slam dunk. But if you are claiming that Avatar ripped off your story just because you had some jungle planet with aliens and a human falling in love, it demands a closer look. This is the “objective” part of the test.

The second part of the analysis involves imagining what the average person would think if they saw both works. Would they believe that it was a copy? This is the “subjective” part of the test.

As always, the real analysis is more complicated than this, but this is the basic way that they determine copyright infringement.

What is this “fair use” thing I’ve heard about?

Fair use is what lawyers call an “affirmative defense” to copyright infringement. Basically, this means that you’re admitting to infringing, but saying that you have an excuse that makes it okay.

In the case of fair use, this means that you are making use of someone’s copyrighted material in a way that meets a certain legal test, when a handful of factors are balanced out. These factors are:

  1. the purpose and character of your use.
  2. the nature of the copyrighted work.
  3. the amount and substantiality of the portion taken, and.
  4. the effect of the use upon the potential market.

Fair use is kind of complicated, so I’m not going to delve too deeply here. Stuff like this is how us lawyers justify charging large legal fees.

Luckily, I have an entire eBook dealing with it and (hopefully) explaining it in a way that makes sense to non-lawyers. Just sign up over on the sidebar or at the bottom of this post to get a link to the free eBook sent to you!

Where can I learn more about copyright?

You’d like to know more? I’m impressed by your insatiable thirst for knowledge!

Seriously, though, even after over a thousand words, I feel like we’ve only scratched the surface of copyright law. I’ll keep writing posts covering specific situations that bloggers and Internet entrepreneurs have to deal with in their businesses. Until then, here’s a few links that can help you learn more about copyright law:

About author

Zachary Strebeck

I'm a solo practice lawyer and full-time digital nomad. I run my law practice at www.strebecklaw.com, representing Internet, mobile software and gaming entrepreneurs. I also blog about digital nomad travel at A Lawyer Abroad.

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There are 3 comments

  • […] discuss legal issues that bloggers and Internet businesses face, A Lawyer Abroad. Recently, I wrote a lengthy post going over the basics of copyright law over there, and I thought that my readers here would enjoy […]

  • AmusingMaria says:

    This is very informative, thank you!

  • Awesome! Glad you enjoyed it!

  • Leave a Reply