Copyright clarity

published in McAfee & Taft tIPsheet | April 1, 2019

Most of us have at least a basic understanding of the laws that impact our daily lives. We understand, for example, that drivers are supposed to carry vehicle insurance and that they shouldn’t run a red light. We might be less aware of laws that don’t apply to what we do on a daily basis, like the fence height needed to surround a privately operated domestic sewage lagoon within the City of Tulsa. (It’s 6 feet, by the way.) So now that so much of our time is spent online looking at or manipulating content, it seems like we ought to have a little better understanding of basic copyright law than we have.

It’s not surprising that there is so much misunderstanding of this topic. After all, it’s hard to understand why you should follow a law if you don’t understand why it’s there or what the consequences for violating it are. I get why I shouldn’t run a red light — I’ll cause a traffic accident. But what happens if I cut and paste some content I found online into something I’m working on? Lots of people are sure that if they find it online, or don’t charge for it, or only use a little of something, or give “credit” to the original source, then what they are doing is fair use and thus not copyright infringement, even though none of those things are true. Online materials aren’t “public domain,” and questions about fair use are resolved with a test that is way more complex than giving credit or charging for materials. A more baseline understanding of what copyright and copyright infringement really are may serve you better than a “Fair use!” incantation.

How do you get a copyright? First, you create original copyrightable subject matter: images, choreography, architectural drawings, text. Second, you “fix the work in a tangible format.” In other words, you write it down, draw or paint it, or save it to your hard drive. What does it mean to have a copyright? Copyright is really a bundle of five rights that belong ONLY to the creator of a work or his/her/its designee. ONLY the author or designee can:

  1. Reproduce the work
  2. Distribute the work
  3. Make derivatives (like sequels) from the work
  4. Display the work
  5. Perform the work

So anyone who does any of those things without the copyright holder’s permission is committing copyright infringement, unless they can raise a legitimate fair use defense. What that means is that a couple of right clicks to copy and paste is all it takes to infringe. And now we come to the consequence part for both the copyright holder and the infringer — registration. A creator who takes the simple step of registering a work at the U.S. Copyright office can sue for copyright infringement and collect damages according to the statutory scheme in the Copyright Act — ranging from $750 to $30,000 for innocent infringement, and up to $150,000 for intentional infringement. But if you don’t register your work, you can’t sue. While you can register your work later after the infringement occurs, that registration will only allow you to bring suit, but you can’t collect anything but actual damages, which are harder to prove.

Let’s look at that from both sides:

If you’re a creator — let’s say an author or photographer — and you host a website where others can access your content, you may post a notice, like © McAfee & Taft 2019, all rights reserved. This is fine — it’s a little like putting an alarm company sticker by your front door. It may warn off a would-be thief, encouraging them to move along to rob the house that doesn’t appear to be monitored. You’re allowed to use a notice like the one above without securing a copyright registration. While U.S. law does not prohibit putting the notice on unregistered works, it also doesn’t require copyright holders to put the notice on registered works. In other words, you can use the notice to inform people that you consider the work yours, but it’s not an indication that you’ve registered the work. So you can’t really rely on the notice as an indication of registration one way or the other.

We’ve already said that you can’t sue for copyright infringement without a registration. Do you have to get that registration right away? Before you make the work public? No, but there’s a good reason to do it early. This March, the U.S. Supreme Court decided Fourth Estate Public Benefit Corp. v., LLC, ruling that before you can sue, your copyright application must be approved, i.e. you can’t just file an application and then try to slap someone with a lawsuit.

From the other side of the coin, if you use someone else’s content and then receive a demand from the copyright owner to pay a fee for using some online content, there’s a threshold question you should ask: is the work in question actually registered? Fourth Estate makes it clear that until there’s a copyright registration, threats of suit are empty. Furthermore, if the work is registered after the infringement occurs, statutory damages aren’t available, and it’s up to the creator to prove actual damages.

So, if you’re a creator, register early and often.
If you’re an infringer, hands off the registered works.
If you’re not sure if it’s registered, might be best to move along…