Answers to Frequently Asked Copyright Questions from a Copyright Lawyer

Is there copyright protection for something that I have created? Do I have the copyright to this? Have I infringed someone else’s copyright by paraphrasing this section of the document? Whether you are an author, teacher, lawyer, blogger or student, almost everyone is involved in creating and using copyrighted works. There are new issues popping up whenever you change the circumstances copyright materials are being created and used.

This guide gives practical copyright solutions to people before approaching a copyright lawyer. This is not intended to be extensive but would allow people to identify copyright issues in advance in a systematic fashion:

1. Is there a copyright to the work?
2. Who is the copyright owner? 
3. What are the rights of the copyright owner?
4. When does copyright expire?
5. Is there an infringement of copyright?
6. Is “Fair Use” or other exceptions to copyright available?

1. Is there Copyright to the Work?

Copyright law is the easiest type of intellectual property to create and apply since it does not require registration. Copyright is automatic and immediate. It is created as soon as the original works of authorship are fixed in any tangible medium of expression. To determine if there is a copyright to a work, we need to look into each element of copyright.

1.1  Is the work original?

There are 2 components to the notion of originality in copyright: inspiration and creativity. This means you thought of the idea yourself and did not just copy from someone else’s work and added some elements of creativity to it. This is not difficult to satisfy in new books, articles, blogs, music, painting, art, photo, software etc. It is more difficult to show when a work is a derivative of someone else’s work.

For example, who owns the copyright if you make a painting from someone else’s photo? Strictly speaking, only the owner of the copyright in a work has the right to prepare, or authorize someone else to create, a new version of that work. So the safest route is to obtain the permission of the photographer before making a painting.

What about Andy Warhol? Doesn’t he make art out of other people’s photos? Arguably, a work on requires a minimum amount of creativity to be considered original. As Andy has included other creative elements into the work instead of directly replicating from the original, the work would satisfy the creativity and original elements to be protected by copyright. 

If you are taking photos of paintings at a gallery, there may be a copyright issue if the painting is not in the public domain (see below) and it is the sole component of the photo. On the other hand, if you are taking a photo of a section of the gallery with more than one artwork, and you selected the camera, angle, lighting, shades and distance. These are all creative elements that would give you the copyright of the photo. 

The court has also held that even compilations and databases would have sufficient originality for copyright protection (through the collection and classification of data). However, copyright does not necessarily protect the investment of labour, equipment and know-how. You must show a minimum amount of creativity and originality. 

In addition, facts and discoveries are not protected by copyright law unless it is a compilation or an original writing about the facts. This encourages people to build on existing knowledge and share information on facts and discoveries.

1.2 What is a tangible medium?

To be granted copyright protection, work must be fixed in a physical form that is capable of identification and last more than a “transitory duration”. Graffiti, sandcastles and ice sculptures are deemed to have copyright even though they do not last very long. You may have infringed on someone else’s right to the property by spray painting on a wall, but that is a different legal issue and does not affect the copyright to your work.  

Tangible does not necessarily mean that it can be seen or read by humans. Copyright is extended to sound or video recording, computer, and information on the cloud and on the internet. So long as a work that is saved and can be seen, watched, used or heard on a device would allow for copyright protection. 

The common categories of copyright-protected works are as follows:

• Literary works
• Musical works and accompanying words
• Dramatic works and accompanying music
• Pantomimes and choreographic works
• Pictorial, graphical and sculptural works
• Motion pictures and other audio-visual works
• Sound recordings
• Architectural works
• Computer programs and software

What about other works like makeup, hairstyle or dances published on social media? 

• To gain copyright protection, first, you need to fix them on a tangible medium, like taking photos or videos of the work. 
• To bring a lawsuit to protect your right in the U.S., you will first need to register your copyright.
• Registration may be the difficult part. For example, to register a dance as a choreographic work, the dance will need to have six additional elements:
• Rhythmic movements in a defined sequence and spatial environment 
• Series of dance movements organized into an expressive compositional whole 
• A story or theme conveyed through movement 
• A presentation before an audience 
• A performance by skilled individuals 
• Musical or textual accompaniment

2. Who is the Copyright Owner?

Copyright protection is created automatically and vested with the copyright owner. So how do you identify who the copyright owner is? In many cases, it is easy. I, as the author of this article, is the copyright owner. The photographer is the copyright owner of the photo, and the artist is the copyright owner of the painting etc. This rule would generally apply to most creators of copyright works.

However, things get trickier if I employed someone to write this article for me. I am still the copyright owner as the employer of the author. However, if the author is not an employee but an independent contractor, it may depend on the terms of the contract. The agreement may only transfer some rights to me, with the author keeping other rights. The owner of the copyright may not necessarily hold all rights to the work.

The general rule is that the copyright rests with the creator(s) of the work. As a result, there may be more than one creator for people working together with joint copyright ownership. 

2.1 Joint ownership 

Joint ownership occurs when the work is prepared by two or more creators with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. The intention must be to work together to create a single product. 

Each joint owner holds an undivided share in the copyright and may use or license the entire work to others. However, that joint owner must account for profits from the use of work to the other owners. This makes the entire copyright management process extremely complicated. 

Joint ownership also comes with the right of survivorship. This means that the last person to outlive the other joint owners will own the copyright as a whole. So joint owners may want to plan for the management of their work and enter into a copyright ownership agreement in order for their family to inherit a fair share of the copyright.

2.2 Work made for hire

For work made for hire, the basic doctrine is that the employer of the creator of the work is considered the author and the copyright owner. The employer may be a company, organisation or individual. The clearest situation that gives rise to work made for hire is where an employee produces a work within the scope of the employment. The copyright of the work would belong to the employer.

What if the work is made by an independent contractor? It would constitute work for hire if it is “specifically ordered or commissioned” and is amongst the types of works itemised under law. So the copyright of work done by an independent contractor may not necessarily rest with the person paying money for a job. An employee and an independent contractor may be doing exactly the same work, but who gets to retain the copyright may be different.

This also leaves open the age-old question of whether someone is an employee or an independent contractor, especially in the era of the gig economy, where remote working, freelance and slash jobs are becoming the norm. Definitions of employees vary between different jurisdictions. Below are some common distinguishing factors: 

• control over work procedures, working time and method 
• ownership and provision of work equipment, tools and materials 
• whether the person is carrying on business on his own account 
• whether the person is properly regarded as part of the employer’s organisation 
• whether the person is free to hire helpers to assist in the work 
• the bearing of financial risk over the business
• responsibilities in insurance and tax 
• traditional structure and practices of the trade or profession concerned 

For the protection of the employer, it is important to state in the employment contract that all intellectual property rights for works for hire created belong to the employer:

https://docpro.com/document-form-select/Employment%20Agreement%20%28Junior%20Employee%29 

It is even more important to state the ownership of the copyright under an independent contractor agreement. For an independent contractor agreement where the customer gets the copyright, please see the below:

https://docpro.com/doc1534/freelance-independent-contractor-agreement-simple-job-customer 

For an independent contractor agreement where the copyright is retained by the contractor, please see the below:

https://docpro.com/doc1532/freelance-independent-contractor-agreement-simple-job-contractor   

2.3 Government as the copyright owner

If the copyright owner is the government, the work may be original and fixed, but they are generally not protected by copyright. The works of the U.S. government are generally in the public domain, and most states have waived their claims to copyright. Many works of government are produced for public interest and are accessible by millions of people around the world. Even if the government has not explicitly waived its copyright, reproducing such work may well fall under the “fair use” exemption.

2.4 Copyright ownership relating to Banksy and NFTs

Banksy often does his work on someone else’s wall without permission. So who owns the right to Banksy’s graffiti? The property owner would own the physical artwork itself, as part of the wall of the property. The owner has the right to remove the mural and even sell it. For Banksy, he owns the copyright to the mural as he is the creator. So he has the right to make copies and sell them to the public. 

A similar concept applies to NFT, which stands for a non-fungible token. NFTs use blockchain technology to represent items such as photos, videos, audio, and other types of digital files. Buyers of NFT would buy from the creator and track on blockchains as proof of ownership that is separate from copyright. 

The status of the NFT owner is similar to that of the owner of the wall of Banksy’s mural. NFT owner owns the original digital work, which cannot be copied (but the original file is open for access by the public). However, the artist can still retain the copyright and reproduction rights, just like Banksy. 

Access to any copy of the original file, however, is not restricted to the buyer of the NFT. While copies of these digital items are available for anyone to obtain, NFTs are tracked on blockchains to provide the owner with proof of ownership that is separate from copyright.

For a copy of the NFT license agreement, please see below:

https://docpro.com/doc2284/nft-art-licence-agreement-digitialized-non-fungible-token 

2.5 Transfer of copyright

Copyright can be transferred, bought and sold or simply given away. Copyright is separate from the ownership right of the physical art form, just like the example of Banksy. Selling a work does not normally include the sale of the copyright to the work unless it is specifically agreed. Therefore the copyright would still reside with the creator, who would still have the right to make copies and sell them to the public.

Any transfer or assignment of copyright should be made in writing. For an example of a copyright assignment agreement, please see below:

https://docpro.com/document-form-select/Copyright%20Assignment%20Agreement 

2.6 Open Access and Copyright Policies

Many organisations have copyright policies to share the rights that would normally vest with one single owner. Instead of placing all rights with the organisation or its employee, it seeks to allow the work to be used by different people effectively and equitably. For an example of copyright policy, please refer to:

https://docpro.com/doc2038/copyright-policy-company-copyright-policy 

Many creators choose to share their works with the public under a Creative Commons license. This grants permission to use the work for certain purposes, such as non-commercial use. This is also a great way to share and distribute the work to the public with attribution to the original creator.   https://creativecommons.org/

Another way is to allow for open access by copyright owners to make their work easily accessible. For example, making the work available online to global readers. This does not mean that the copyright is relinquished but as a way to boost traffic and forgo subscription revenue in favour of potential advertising revenue. A good example is online content made for Search Engine Optimisation.

3. What are the Rights of Copyright Owners? 

The copyright owner(s) normally has the following exclusive rights to the work:

• Right to reproduce the work
• Right to distribute the work
• Right to make derivative works
• Right to display the work in public
• Right to perform the work in public

Derivate work is work based upon one or more pre-existing works. For example, making a movie out of a book. The copyright owner usually wishes to retain some rights over the derivative work and to approve it if necessary (to prevent a poorly made derivative work from affecting the image of the original work). 

4. When does Copyright Expire?

The current rule of copyright is that it exists automatically when the work is created in a tangible medium. For most works, it lasts for the lifetime of the creator plus 70 years. So the copyright of the Sherlock Holmes novels has expired, but books written by Ernest Hemingway still have 10 years to go. 

For work made for hire, how do you find out when the original creator has died if you don’t know who the person is? If the work is made for a company, does it mean that it never expires since a company doesn’t die? A work made for hire has copyright protection for the shorter of 120 years from the creation of the work or 95 years from the publication of the work. 

5. Is there an Infringement of Copyright?

5.1 Reproducing and Distributing Copyright Work

If you have reproduced a copyright-protected work without the permission of the owner that is not within the fair use or other exceptions, then it may constitute an infringement of copyright. Not only would the person making the infringing copies be liable, but the organisations that oversee the individuals infringing the copyright may also be liable.

In relation to DocPro, whilst you are permitted to create documents for your own use from our library of legal templates, you are not allowed to reproduce and distribute the documents to others. Doing so would be infringing on our copyright.

For an example of a copyright permission letter, please refer to:

https://docpro.com/doc2360/copyright-permission-letter-copyright-owner

5.2 Making Derivative Work

In general, only the copyright owner has the right to prepare, or give authority to create, a derivative of the work. So you will need the permission of the owner before making a derivative work of the original. 

What about parody shows such as “Saturday Night Live”? 

Many countries provide an exception to copyright “for the purposes of caricature, parody or pastiche”. This means you can make derivative work to create parodies without the permission of the copyright owners, who may not otherwise be willing to give consent. Please note the use for parody purposes is limited insofar as it can be considered “fair dealing” (see below). 

Can I use the photo of a public figure for promotion?

If you take photos of public figures, you are the copyright owner of the photo. However, you can only use the photos of public figures or celebrities for non-commercial purposes. Privacy or right of publicity laws may prevent the commercial use of the person’s names, image or likeness without their consent. 

To use the image of a public figure for promotion, not only would you need to get consent to use as a derivative work from the photographer, but also permission from the public figure. The easiest way to do so is to buy the right to use such a photo from a photo library like Stockphoto.

5.3 Public Performance and Display

A performance and display of copyright work may become an infringement if it is public. It is okay to perform in private to a circle of friends, family, and social acquaintances. It would only constitute a public performance or display if it is offered to a substantial number of people beyond the above.

What about school plays or performances? 

In most jurisdictions, there are exceptions for classroom instructions or other educational purposes. So a teacher can recite poems, read text, sing songs or even show a movie with students without infringing copyright.  

Can the owner display the original work in public?

As discussed above, the owner of the original work may be different from the owner of the copyright. If a museum purchased a painting without the copyright, can the painting be displayed in public? There is an exception to allow the owner of the original work or a lawfully made copy of the work (e.g. book, photograph, painting, poster or print), to display the work where it is physically located. So an art gallery can display art publicly, and a library can recommend books on its display shelf.

6. Is “Fair Use” or other Exceptions to Copyright available?

It would be difficult or even impossible for a modern society to function if you need to get consent from owners for all use of copyrighted works. That is why the law has catered for many exceptions to the rights of owners, which are vital to the advancement of knowledge and the economy. The most important exception is “fair use”.

6.1 Fair Use

Fair Use is a limited right to use a copyrighted work without permission from the copyright owner for specific purposes. For example, education, news reporting, research, commentary or criticism. The use of the work would otherwise constitute infringement and be converted to lawful use, often for the growth of knowledge or advancement of social objectives. 

Fair use does not mean the unlimited use of the copyrighted work, even if it is for social purposes. There are four balancing factors that fair use is based on: 

(a) Purpose and Character of Use

The first question to ask in determining whether “fair use” can is applied - is the use of a copyrighted work of a commercial nature or is it for non-profit, educational purposes? Obviously, photocopying materials for a classroom is much more likely to be fair use than photocopying materials for a business meeting.

However, commercial use does not necessarily mean that it is fatal for the purpose of fair use. A parody of “Star War” on a late-night talk show can still be regarded as fair use. Even though it is a commercial product, it is also a commentary or criticism of the movie. This can also be seen as a transformative use of the copyrighted work, which is the second question to consider if a specific purpose does not apply. 

A transformative use happens when the work is altered or used in a new manner or context so that it is transformed into a new work. For example, Picasso created modern variations on Las Meninas by Diego Velazquez would be considered transformative use.

This notion of transformative change is increasingly important with the rise of the internet. With posting and sharing social media, cutting and pasting online photos and images, online blogs and commentaries etc., one could lean toward transformative use even if the use of online media is for commercial purposes. 

(b) Nature of the Copyrighted Work

One will also need to examine the nature, characteristics and qualities of the copyrighted work to see if it is more worthy of protection than others. For example, it is generally held that “fair use” does not apply since the copyright owners should be able to decide on whether, when and how to publish the work. 

In addition, copyright generally offers greater protection for fiction than non-fiction. This is because non-fictional works are more likely to advance human knowledge than fictional work, which is exactly how the “fair use” exception is being applied. 

For consumables such as a workbook, copies may undermine the value of the copyright works and harm the market. As such, this may weigh on whether reproducing materials even for educational purposes would constitute “fair use”. On the other hand, if a copyrighted work is out of print, then it may not be harmful to the copyright owner’s market and replicating it for educational purposes may be considered “fair use”.

(c) Portion Used in relation to the Work as a Whole

There are no hard and fast rules on the allowed percentages and word counts on what would constitute “fair use”. The portion will need to be measured on both on a qualitative and quantitative basis. Quality is evaluated relative to the length of the original work and the amount needed for the purpose under the first factor. Generally, the smaller the portion that is used, the more likely it would constitute fair use. Yet if a short excerpt is copied from the heart of the work (e.g. a key finding or a formula), it could still be outside of fair use.

In relation to the original work, the appropriate amount is different for different types of work. For articles in a journal, each article constitutes an entire work, so copying one article out of a journal with 30 articles would still constitute copying the whole article. 

For images, courts have allowed the use of low-resolution images (e.g. search engine results) as fair use since they are unlikely to compete with the original high-resolution images, even if Google is copying a large number of images in its search results. 

(d) Effect of Use Upon Potential Market or Value

This may be the most important factor in considering “fair use” – whether the use is likely to harm the value of the work and its market. If your use is likely to harm the copyright owner’s sales or potential markets, then the court may decide against “fair use” even if the first 3 factors are satisfied.

For example, using pirated educational software in classrooms would not be a “fair use” even if the purpose is to teach. Similarly, the sharing of movies/music online would also be detrimental to the market of the copyright owner, which was an important determining factor in the case of Napster.

The market effect can be very different depending on the situation, and the ultimate question is whether the use would inhibit sales if it becomes widespread.  Some users of the work may actually increase the value, for example sharing it on social media. It is generally easier to prove market harm if it is for a commercial purpose than that for an educational purpose. 

Fair Use is ultimately a question of good faith. We have developed a Checklist on the Fair Use of Copyright to help you determine whether the fair use exception applies in light of the four factors.

6.2 First Sale Doctrine

This exception allows others to transfer lawfully made copies of a work to others after the first sale. These copies can be passed through sale, rental, loan or gift. This exception allows for a library or a DVD rental service to operate. There are questions on whether this applies to digital copies, since they are much easier to distribute than analogue copies, and may pose a serious threat to the market.

6.3 Computer Program

The owner of a copy of computer software also has the right to make an extra copy in case of damage to the original copy. The owner can also modify the original software to suit his/her need. 

6.4 Non-commercial performance

Non-commercial performances such as school choirs, musicians or poetry readings may be done so long as they are conducted without commercial purposes or payment of fees to the performers. Please note that this exception does not allow for the reproduction of the performance. Thus to make copies of the performance via your phone or camera, you may need to go back and rely on fair use.

7. Conclusion

Whether you are a copyright owner, licensee or user, ultimately, it is about managing your use of copyright to your advantage. You will need to understand whether the copyright exists, whether an infringement has occurred, how to take control and whether there are any exceptions such as “fair use”. If copyright is managed properly, it can be a win-win situation for both copyright owners and users, as well as for society as a whole in the advancement of knowledge and education. 

Please note that this is a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may wish to consult your lawyer.