Copyright Law :: Protected or Not?

Copyright Law is indeed a slippery slope.  Over at Vitamin, Stephan Nipper, writes on March 2nd, 2007 a post entitled Copyright: Get to know the Facts but having read the article I really must ask Attorney Nipper what exactly are the facts please?  According to Attorney Nipper, his article encourages the purchase of US copyright registration (at $45/a pop) in order to avoid

"...a common misconception about copyright law that still exists today, some thirty years later. This misconception often serves as a trap that many a copyright owner, including web developers and designers, unknowingly falls for. What is it? Its the belief that “a copyright owner does not have to file a copyright application to protect its works…rather, copyright protection forms when the works are created.”

While technically true (copyright protection begins at the ‘publication’ of the work), taking a “I don’t need to file copyright applications” attitude can often come back to haunt you. The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.”

I would first like to point out that Mr. Nipper is incorrect when he states that copyright in a work is created at ‘publication.’ The current U.S. law creates a copyright when a work is fixed in a tangible form of expression. US Copyright Office states the following:

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.

Houston We Have a Problem!
So from what I read of all this is... that copyright is indeed bestowed upon a work at its creation BUT in order to ACTUALLY be protected in a court of law (which is frankly in my eyes the whole point of copyright protection) for statutory rights and attorneys fees, that work MUST be registered.  Therefore to ensure compliance with these laws all artists, writers, developers etc MUST REGISTER each piece of work or you're screwed. That means each photograph, each website, each graphic, each illustration, painting or sculpture.  Are you kidding me?

So if Jane the Artist creates a masterpiece for which she hasn't registered a copyright and the masterpiece is sold to a collector, that collector/buyer could conceivably go forth and reproduce that masterpiece into coffee mugs, tshirts, greeting cards etc...make a fortune and Jane the Artist has NO LEGAL STANDING??

Additionally Attorney Nipper points out:

Finally, web developers should remember that in the US the author of the work is the owner of the work unless the author has assigned his/her rights in writing, has a duty to do so based upon an employment agreement, or the work is one of the few other “works for hire” exceptions.

(Please see ArtLOOK's May 13, 2006 post on Work for Hire Situations and why it's a bad idea for creative freelancers.)

Mr. Nippers article and the info at the US copyright office therefore begs the questions... does a artist or creative own a work upon creation or not? Is it 90 days or 5 years? And if a work is being stolen or misused, does that creator have protection and rights under US copyright law and/or WIPO and/or the Berne Convention or not?  If not, what is the point of bestowing copyright upon creation in the first place, and who then is really benefiting from the registration process?  If these questions can not be answered clearly then we have some mighty big problems folks and I'm going to have to go and re-mortgage my house in order to protect my rights! (of course it might be too late according to the 90 day time limit...for heaven's sake)

WIPO - World Intellectual Property Organization
Now I am not an attorney.  I am simply a designer who wishes to figure this all out. I encourage you to all read Mr. Nipper's article as well as the comments made by numerous designers, artists, writers and EU visitors all questioning such things as "I've created 100's of sites/layouts/articles/paintings or illustrations and registering each one is going to get expensive."  and how does Creative Commons work into all this.  Many EU visitors also wished additional information regarding intellectual property in their countries.  I have done a little bit of research and have provided links below which will direct readers to information regarding US copyright law, WIPO, Creative Commons and other resources.

Interesting comments that some readers point out over at Vitamin are the comments regarding UK law whereby copyright does not need to be filled and that UK creatives are protected regardless of registration as Rick Curran's research points out '

"So long as you have created a work that qualifies for copyright protection, that is it falls into one of the categories of material protected by copyright, you will have copyright protection without having to do anything to establish this. It is a requirement of various international conventions on copyright that copyright should be automatic with no need to register.

To help protect your copyright work, it is advisable to mark it with the © symbol, the name of the copyright owner and the year of publication. Although this is not essential, it will let others know when the term of protection started and hence whether it is still covered by copyright, and indicate who to approach should they need to ask permission to use the work."

Kevin Rapley comments:

"...you will be covered regardless! If a country is part of the WIPO (which the UK and US are) Add the copyright and your covered. Save your dollars America, would be interesting to see where Stephen Nipper got his information from."

Obviously clarification is needed here.  Many of us rely (heaven forbid) on our government and legal system to protect some semblance of our rights as creatives who contribute in vast and rich ways to our society.  Clearly this is an issue that should be examined and recified by our legal system and those who represent us. It seems quite clear to me that if copyright is bestowed upon creation that all rights and legal protections should follow that entitlement.  Additionally, it has been my experience that when an artist creates a work the artist usually has all preliminary sketches, layouts, and files supporting dates and progress of the work.  This should be evidentiary and significant in a court of law.

According to the WIPO website - How are copyrights and related rights protected on the Internet:

Both treaties require countries to provide a framework of basic rights, allowing creators to control and/or be compensated for the various ways in which their creations are used and enjoyed by others. Most importantly, the treaties ensure that the owners of those rights will continue to be adequately and effectively protected when their works are disseminated through new technologies and communications systems such as the Internet. The treaties thus clarify that existing rights continue to apply in the digital environment. They also create new online rights.

And with regard to what rights does copyright provide:

The creator - or the owner of the copyright in a work - can enforce rights administratively and in the courts, by inspection of premises for evidence of production or possession of illegally made - "pirated" - goods related to protected works. The owner may obtain court orders to stop such activities, as well as seek damages for loss of financial rewards and recognition.

And do you need to register to be protected?:

Copyright itself does not depend on official procedures. A created work is considered protected by copyright as soon as it exists. According to the Berne Convention for the Protection of Literary and Artistic Works, literary and artistic works are protected without any formalities in the countries party to that Convention. Thus, WIPO does not offer any kind of copyright registration system.

However, many countries have a national copyright office and some national laws allow for registration of works for the purposes of, for example, identifying and distinguishing titles of works. In certain countries, registration can also serve as prima facie evidence in a court of law with reference to disputes relating to copyright.

Please see the following sources of information regarding copyright law and please tell me your thoughts.

Bitlaw - A Resource on Technology Law:: Obtaining Copyright Protection
Legal Information Institute - Cornell Law :: Copyright Act
AIGA - TheCopy Left Is Not Right by Brad Holland
Creative Commons

Comments

[Mark Randall Kilburn]

Obtaining the one copyright that I have was as easy as filling out a form and sending it with a picture of my sculpture (and a check)to the office of copyright in D.C.
Three months later I had a certificate of registration signed and sealed from the office of copyright.
Copyright is automatic once the work is in a fixed state, or finished. Proving it is yours is all the registration is about. Others can still challenge your copyright but will find it much harder if you have a registration with Uncle Sam. These rights are set forth by the constitution.

[Rick Curran]

Very interesting, I can see the proposed value and protection of this kind of registration. However, I wonder if it will result in a similar situation to that of software patents (or patents in general) whereby parties register copyright on something without actually creating something? That may not be that easy to do perhaps but the way that the patent system (esp. in the US) has been abused is not something I'd like to see happen in regards to copyright registration.

[Software developer]

As long as there is proof that the author created a work first I guess the case will win in any court of law.

[Mark Randall Kilburn]

Patents and copyrights are two different things. The U.S. Government has nothing to do with your RIGHTS under the constitution.
Copyright is AUTOMATIC when the work is done. If nothing was created, then there is
no copyright, and it would be impossible to register something that does not exist.

[Dan Ward]

The relevance of copyright is greatly diminishing in the era of digital media (for those, unlike Metallica, who have the cahones to read the writing on the wall). I am in love with alternative approaches to managing intellectual properties, such as the Creative Commons License. It's an approach that really works, and it's more human and sensible than copyright. And

For a remarkably insightful analysis, check out John Perry Barlow's essay on selling wine without bottles, in the book Exposure.

It's available as a free PDF at http://www.lulu.com/content/348725 (among other places).

[Mark Randall Kilburn]

" The relevance of copyright is greatly diminishing in the era of digital media"..
I disagree wholeheartedly. If anything it is MORE important and relevant to people who seek to protect Intellectual Property. Contemporary or "NEW" media may make it easier to become a theif for those so inclined, yet that does not preclude the theif from prosecution under current law, it just makes it easier to steal stuff (Specificaly, other peoples idea's ) The American concept of copyright is so simple and self evident that some people have a hard time grasping it. Perhaps because their professors only taught them what to think and not how to think. "Yep, the personal computer is going to make life so much easier...." Unknown quote 1980

[Mark Randall Kilburn]

The one thing not discussed here is that a human person had to make a mindful decision to steal someone else's property. Blaming an antiquated system or lack of personal experience on the part of lawyers and judges
is just a cheap way to dance around a theif.
That is like blaming a gun for a bank robbery. So, if all these mental gymnastics are valid, then lets take it up a notch. I was always taught that thoughts have form and can manifest in the physical world. If this is true, then ANY idea is in the "fixed state" as soon as you think of it, and digital media takes a back seat to metaphysical truths.

[Dan Ward]

Good comments, Mark - and thanks for the tip, Lisa! This is a huge, hot topic and I'm glad to have the chance to discuss it with people.

When I said copyright is increasingly irrelevant, I meant that quite specifically, and was talking only about "copyright" as a legal device. I probably should have added that the issue of appropriately handling people's intellectual property (to include assuring they are appropriately compensated) is more important than ever, because we're in such new territory. Specifically, I think we need to come up with new laws / approaches / methods, because the old ones are demonstrably unsuitable for life in the digital domain.

But I agree - people shouldn't steal other people's property, no matter how easy the internet makes it.

Having said that, I think we need to rethink copyrights. IMHO, copyright is all about "protecting" or "controling" IP. That approach made sense in a hard copy world, full of records and books, but now that people can make an infinite number of copies of my work (song, movie, book, etc) *without* any copies leaving my possession, well, the control-oriented copyright approach quickly devolves into absurdity (like musicians suing their fans). Nothing good can come of that, for the artist, the fan or the economy.

As Marko Ahtisaari describes the new situation nicely (in the book Exposure), "Previously when you “consumed” a record there was one less left for others to enjoy. Today a person enjoying music does not decrease the supply."

Personally, I believe the value of an idea increases the more people are exposed to it. The value of a song increases the more people are familiar with it, etc. Also, I don't think creative minds will suddenly stop writing songs and books just because it becomes less lucrative to do so. The arts will certainly survive the digital era.

I could go on, but I'll end with a little quote I found in Exposure (you can download the free PDF - I highly recommend it):

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking
power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.

Its peculiar character, too, is that no one possesses the less, because every other
possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
–Thomas Jefferson

[Lisa]

Hi All, Thanks for the wonderful and insightful comments here. Truly this is a hot topic and open discussion about such subject matter is always welcome.

Dan... love the quote from Thomas Jefferson. Thanks for sharing.

[Mark Randall Kilburn]

I beleive we all share the same passion for
protecting our work. My new question is this: I created a fabricated metal sculpture, called it "The Flux Capacitor"
and it is the aforementioned peice that I have a registered copyright on. Do I now own the name "The Flux Capacitor" ?
is it only for that specific design?

[Dan Ward]

Good question - but I think we've left copyright and moved into trademark. You can copyright the sculpture, but I think the only way to restrict use of the name is to make it a trademark.

I'm not an expert in this area by any means, but I'm pretty sure people can't own words - we can use "Dominoe's" as a trademark for our delicous pizza, for example, but if a sugar company comes along and sells Domino's sugar, that's alright (because pizza and sugar are sufficiently different). But nobody else can do pizza named Dominoe's.

Howeve, with art, books and music, it's a little differnt. I can scream my way through a song titled Wild Thing, and the same summer my good friend Tone Loc can rap a completely different song with the same title. No infringement on either of our parts. I can write a book named Love, and Leo Buscaglia can't sue me... unless the text of my manuscript looks just like the text of his.

So, other people can still make movies about flux capacitors, write books about it, or even make a sculpture and give it that name... unless it looks a lot like yours. As JP Barlow said in Exposure, point of view (i.e. your unique voice) can't be stolen.

[Mark Randall Kilburn]

Dan, I like the good clear definitions between trademark and copyright in that post. Remember also that copyright is automatic as soon as the work is finished.
I have spoke with others (elsewhere) on this and it seems that some people have a very difficult time digesting this concept. They continually want permission/validation/gaurantees from the government for copyright, when in reality it is already done as a right of U.S. citizenship.

[Mark Randall Kilburn]

O.K., here is a good one. You guy's got me all fired up now!
I keep yammering about copyright is gauranteed under the constitution and all that high faluntant stuff. I just thought of this, If someone infringes on my copyright, could I pursue them legally on a "Civil Rights Issue" Sound crazy?
If what I have read from the office of copyright and my understanding is correct, then it seems to me that whoever steals my copyrighted material is infringing on at least one of my civil rights. Whoever pulls that one off would sure set a precedent that would serve as a darn good deterrent for future rip-offs.

[Dan Ward]

I'm sure there's a lawyer or two (or an army) out there who would love to turn copyright into a civil rights issue... Personally, I hope they don't, largely because I'd hate to see civil rights get watered down.

I tend to think the marketplace has a way of sorting things out in a way that is fair and organic, while the legal system tends to provide 'solutions' that can be absurd (and not absurd in a good way). As you pointed out, copyright law currently provides automatic protection for what ever anyone creates. Let's go from there...

[Mark Randall Kilburn]

Interesting idea. Letting the marketplace sort things out is a Keynesian Economics principle called Lassez Faire Economics...very Capitalist/Ronald Reagan in concept and execution.
Did I just burst anybody's "I am a liberal" bubble ?
Perhaps I am from another generation or mindset. Civil rights to me are rights that are gauranteed by U.S. law
which is based conceptually on the U.S. constitution and are civil in nature as compared to criminal or tort or maritime, etc.

[Mark Randall Kilburn]

Correction: Lassez-Faire is a NON-Keynesian
theory of economics.

[erik johnson]

I'm a layperson with a few simple questions. I buy an original piece of art from a gallery.
Is that piece of art now mine to do what I want with it?
May I exibit it as I please, privately or poblically?
May I reproduce the image, eg on T shirts for sale?
May I modify it?

[Mark Randall Kilburn]

OK, I get it. If you buy a car at a dealer
you own that car, but not the rights to the design. If you took the image of that car and put it on a t-shirt and sold them, then you would be using a design image without permission or the right to do so. If however, you made a deal with the manufacturer of that car and through that deal, obtained the legal right to reproduce that image then you would be within the law. I beleive it is the same with art, but you should talk to someone who really knows, or get written permission from the artist.

[Joe]

I have a question for you all: If I took movie titles which are obscure for example Slow Burn or Salton Sea and put these on shirts or posters, would that be infringement. Thanks