KNOW YOUR CREATIVE RIGHTS

by Joelle Steele

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When most artists or writers think about their rights, one of the first that comes to mind is that of their "first amendment" rights, their constitutional right to free speech as guaranteed by the United States Constitution in the Bill of Rights.

CONSTITUTIONAL RIGHTS

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That's one of your rights, but there are other rights too, and it helps to understand them to make sure that those rights are protected and that you don't infringe on someone else's rights when you are in the process of creating your own works.

INTELLECTUAL PROPERTY

Let's start by talking about intellectual property, since that's what creative people create. Intellectual property is essentially the intangible creation of the mind made tangible in the form of a book, an illustration, a screenplay, a recording, etc. How and to what degree your intellectual property is protected by law depends largely on where in the world you live. International laws are governed in part by the 1994 General Agreement on Tariffs and Trade (GATT), which makes commercial copyright piracy a criminal offense. In the United States, as well as in other countries, intellectual property may be copyrighted, and that is discussed elsewhere in this article.

OWNERSHIP AND POSSESSION

Before you can copyright anything or take out a patent on it, you will need to establish its ownership. For example, let's say you found a copy of your grandmother's diary in the house you inherited from her. Do you own the diary? Simply having possession of something does not automatically make you its owner. To establish ownership of something you possess, you must to be able to prove that you obtained it legally. In other words, you either were given it by its legal owner, bought it, made it yourself, or inherited it. Since you inherited the house and its contents from your grandmother, you own the diary.

According to the U.S. Copyright office:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright. Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself.

So, you can register a copyright for the diary since you established your ownership by inheritance. Likewise, if you wrote a book, you own it, and you can copyright it.

What about that beautiful photograph of your Aunt Evelyn? Do you own it? Can you copyright it? Probably not on both counts. Unless you took the photo yourself and still have the negatives, it would be pretty difficult to establish your ownership of something that probably exists in duplicate somewhere else in the world.

COPYRIGHT

Your work is copyrighted as soon as it is created in a fixed tangible form — painted, printed, burned on a CD, filmed, etc. According to the U.S. Copyright Office:

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

The Copyright Office further states that you can place a copyright notice on any unpublished work that may be in the hands of others at some time prior to its publication or release. And, any work that you create should have your copyright notice on it. While not required, it is advisable, since it indicates that a work is protected, that you are its rightful owner, and it shows the date of the first publication of that work. If someone tries to infringe on your copyright, it is not so easy for them to say they didn't know it was a copyrighted work they were stealing.

You can use one of the following copyright notice formats, and it doesn't matter whether you use the copyright symbol or spell out the word:

© Mary Jones, 2005
Copyright 2005, Mary Jones
Copyright 2005, Mary Jones. All Rights Reserved

The term of copyright protection — how long it lasts or endures — varies according to when the work was created. If you created something on or after January 1, 1978, it is protected from the moment you created it, and that protection lasts for the length of your life plus 70 years after your death. If you created the work with another person, that 70 years begins after the death of the last surviving creator. If you created a work for hire (e.g., as an employee), the copyright lasts 95 years from its publication or 120 years from its creation, whichever is shortest.

If you created a work before January 1, 1978 and it was not published, it received protection under those same terms above. The term of the copyright for those works did not expire before December 31, 2002 and works published on or before December 31, 2002 will not expire before December 31, 2047.

And lastly, if you created a work and published it or registered it with the Copyright Office before January 1, 1978, the Copyright Act of 1976 extended its renewal to 47 years for copyright subsisting on January 1, 1978 or for pre-1978 copyrights that were restored by the Uruguay Round Agreements Act (URAA), an international copyright treaty. This makes them eligible for 75 years of copyright protection. These renewal terms were additionally extended in October 1998 to a total renewal term of 67 years, and a total protection of 95 years.

COPYRIGHT REGISTRATION

To make your copyright a matter of public record, it must be registered with the U.S. Copyright Office. It can be registered at any time during the life of the copyright. However, registration is not required for copyright protection. It is a requirement, however, if there is ever a legal action being taken to prove/disprove copyright infringement. In that regard, the timing of the registration is significant, since it determines, in part, any damages that may be awarded in such a lawsuit. Also, if a copyright is registered, it allows its owner to record that registration with the U.S. Customs Service, which strives to protect you from having illegal copies of your work distributed.

INTERNATIONAL COPYRIGHT PROTECTION

Unfortunately, there is no system of international copyright laws to protect your work worldwide. According to the U.S. Copyright Office:

Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.

If you publish your work outside of the United States, you can still have your work copyrighted by the U.S. Copyright Office if:

The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA).

PUBLIC DOMAIN

Since there have been so many changes to copyright laws in the last 30 years or so, it is easier to just quote you the words of the U.S. Copyright Office circulars:

Certain works that were neither published nor registered for copyright as of Jan. 1, 1978, entered the public domain on Jan. 1, 2003, unless the works were published on or before Dec. 31, 2002.

Under the 1909 Copyright Act, works that were neither published nor registered did not enjoy statutory protection, although they were protected under common law in perpetuity as long as they remained unpublished and unregistered. But under section 303 of the 1976 Copyright Act, works that were created but neither published nor registered in the Copyright Office before Jan. 1, 1978, lost their common law protection and acquired a statutory term of protection that was the life of the author plus 50 years, amended in 1998 to life plus 70 years.

As a result of the 1976 Copyright Act, any of the works in question whose author had died over 50 years prior to 1978 would have entered the public domain after Dec. 31, 1977. To provide a reasonable term of copyright protection for these works, and in light of the fact that these works had enjoyed perpetual protection under common law, Congress extended their term by at least 25 more years. Congress also encouraged publication by providing an additional 25 more years, extended in 1998 to 45 more years, of protection if the work was published on or before Dec. 31, 2002.

That first 25-year period expired on Dec. 31, 2002. Any work that was neither published nor registered as of Jan. 1, 1978, and whose author died before 1933 entered the public domain on Jan. 1, 2003, unless it was published on or before Dec. 31, 2002. If the author died in 1933 or later, the work will be protected for 70 years after the author's death, due to the passage of the Sonny Bono Copyright Term Extension Act in 1998.

DERIVATIVE WORKS AND PLAGIARISM

With any kind of intellectual property you must obtain permission from the creator and owner of a copyright in order to use their work. For example, if you use an image created by an artist to create a collage or some multi-media piece of art, your art becomes a "derivative work." In other words, you either used someone else's work as a basis for your art or as an element incorporated into your art. If you do so without obtaining the permission of the artist whose image you use, you may be infringing on their copyright. With regard to writing, it is likely that Alexandra Ripley, the author of "Scarlett," a sequel to "Gone With The Wind," probably sought permission from Margaret Mitchell's heirs before writing the bestseller based on Mitchell's original novel.

The following are definitions of derivative works:

DEFINITION: 17 U.S.C. §101: A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'.

DEFINITION: U.S. Copyright Office Circular 14: A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable. Who may prepare a derivative work? Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

DEFAMATION: LIBEL AND; SLANDER

Defamation is broken down into slander (spoken aloud) and libel (written word). To defame someone means that an individual makes a false and/or malicious statement or accusation that maligns the character of another person and injures their reputation and standing in the community by humiliating or disgracing them publicly. It is usually adjudicated at the state level, where local laws determine whether the defamation was intentional and punishable.

PUBLISHING RIGHTS

There are other rights in addition to copyright. There are publishing rights too. When a work is published, the publisher does not own the copyright as that still belongs to the author, but they buy or are given the publishing rights, and if it is the first time a work is published, the publisher is most likely to be buying/exercising "first rights" or "first serial rights," which means that publisher is the first to publish the work. Usually publishing rights are further defined as "first national rights," "first North American rights," or "first international rights." If a work has both never been published and has fallen within the public domain, then anyone can publish it without infringing on anyone's copyright or requiring any publishing rights.

The rights license period is the length of time during which a publisher owns the publication rights to a book. Sometimes if the book goes out of print, those rights revert to the author. If you create a "work for hire," meaning you are an employee when you created the work, all rights go to your employer.

SUMMARY

As you can see, there are a lot of complexities surrounding the rights of a creative person. This article is by no means the definitive reference for such rights, and it is highly recommended that you regularly and frequently visit your state and federal Web sites, including the one for the United States Copyright Office, to find out about all the latest happenings with regard to copyright law.

This article last updated: 12/23/2015.