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Wherefore Thou Art #23
Concentrate on the Fundamentals

I've been writing this column for two years now. The mission of this column has been to demystify intellectual property law for creative and curious people. After twenty-plus articles (all of which can be seen at my website, the basics of this stuff have been covered in abundance. But some of it I wrote about two years ago. And so we're faced with a fundamental question, eloquently framed by David Byrne in the Talking Heads' classic 1977 song Psycho Killer:

"Say something once, why say it again?"

The answer, as we all know, was supplied with equal aplomb some twenty-five years later by Jack White of White Stripes in the song Fell in Love With a Girl:

"And I said it once before, but it bears repeating."

So let's circle back to the git-go and look at some of the fundamentals of copyright law. It bears repeating.

1) Copyright protects original creative expression.

In this context "original" means something that's original to the creator. It doesn't have be novel or unique. So long as a creator doesn't copy too much of something that already exists, the new work can be protected by copyright. Even identical works can be protected independently, if the creation of each was independent of the other.

There has to be some a creative spark involved in the work for which copyright is claimed. Words, short phrases, symbols, and titles aren't protected. That's the realm of trademark law. The Supreme Court decided that the white pages of the phone book weren't protectable, finding them to be an obvious arrangement of names, numbers and addresses, lacking the requisite creativity to receive copyright protection.

Copyright won't protect things that are purely functional. That's the realm of patent law. As a very general matter, if you can't separate form from function in something, you're not going to be able to rely on copyright law to protect it.

Copyright doesn't protect ideas, methods or concepts. What is protected is the expression of ideas, methods and concepts, captured in a tangible form. Copyright only protects things.

2) Copyright arises automatically

There is no such thing as "copyrighting" a work. Copyright protection in a work begins automatically and immediately as soon as the work is in fixed, tangible form, like when the brush leaves the canvas, when the "save" button is pushed on your computer, or when a song is recorded. Then it's up to the creator to decide whether to enforce the copyright.

3) Registering a copyright with the Copyright Office is not mandatory

Whether or not you register your copyright in a work with the Copyright Office (part of the federal Library of Congress) does not affect the validity of your copyright. However, if your work is going to be sold, duplicated, published, posted on the web or otherwise placed in public view, registering the work is a real good idea. Registration (which costs $35, and in many situations you can register multiple works with one application) (a) provides a public record of your claim of copyright in a work; (b) is required before you can ask a court to enforce your copyright; and (c) provides dramatically enhanced potential remedies from an infringer if you register prior to the infringement.

4) Mailing yourself your work doesn't do squat

The so-called "poor man's copyright" is not remotely the same as registering a work with the Copyright Office. Don't bother.

5) If you sell a work you keep the copyright

That's right. Selling the work, the object, the thing is not the same as selling the copyright in the work, the object, the thing. Unless you are an employee creating something for your employer as part of your job, you will keep the copyright in the work unless you sign a piece of paper that says explicitly that you are transferring your copyright. This is fairly obvious for some types of works (if you buy a copy of Tom Wolfe's new book, you probably aren't thinking you own the copyright to it) but less-than-obvious for other types of works. For instance, someone buying an original piece of fine art, like a painting or a sculpture, may well assume that since the purchased work is unique and one-of-a-kind, that what has been bought is the whole enchilada, including the right to duplicate and publish the work. Someone specially commissioning a work may assume the same thing. But it's not the case. The copyright stays with the creator unless there's a writing signed by the creator that says otherwise.

6) Just because there's no (c) notice on a work doesn't mean it's not protected by copyright

Copyright notice used to be mandatory in the United States, but not anymore. While it's no longer required, I always recommend that clients include the copyright notice ((c), year of creation or publication, name of copyright owner) for works that are going to be publicly visible, especially works posted on the web. Which segues nicely into my last point:

7) Just because it's on the web doesn't mean you can use it

The web is like everywhere else, only faster. In other words, copyright applies in cyberspace just like it applies on terra firma. So, just because you can see an image, read a text, listen to a song, etc. on the web, this doesn't automatically give you a license to take the image, text, or song for uses other than garden-variety personal uses. The web is not the world's biggest clip-art gallery. And this is true whether or not the cyber-work carries a copyright notice (see number 6, above).

These are a few copyright basics. Beware: every one of these statements has qualifications and huge grey areas around the borders. If you've got an issue dealing with copyright for which the answer isn't crystal clear, you should consult an intellectual property attorney or other artists' advocate who knows the landscape.

(c) 2004 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.