Copyright Law Tips for In-House CounselMarch 3, 2023

Copyright law can be complex. Issues are usually fact specific, require significant interpretation and a case-by-case analysis. The answer to most copyright law related questions is some iteration of “it depends” but some simple education is often the best tool to avoiding issues and combating copyright myths and misinformation.

1. Copyright Law Does Not Protect Ideas

Copyright law doesn’t protect ideas, facts, concepts, systems, or methods of doing something. Copyright protects original works of authorship fixed in a tangible medium of expression. Further, copyright law protects the specific expression of an idea. For example, copyright is not going to protect the general story idea or general plot of a book, marketing materials, or other work, rather, it protects the specific expression (detailed plot, character traits, names, etc.) of the ideas expressed in those works.

PRACTICAL TIP: You are generally allowed to use or summarize ideas, articles, or topics without reproducing the original(s) to the extent you are not using the original expression.

2. Do Not Assume Images or Other Works Posted Online are Free to Use

Assume that all images and creative works found through online searches are protected by copyright unless/until you can determine that is not the case. Copyright clearance can be time consuming and frustrating, however, even if you are unable to locate the owner of a copyrighted work, without receiving a license and/or written permission from the copyright owner, you run the risk of copyright infringement issues in the future.

PRACTICAL TIP: Only use a work (image, video, audio file) found through an online search once you have done your copyright research and determined it is not protected by copyright. You must receive permission to use a copyright-protected work, even if the owner is unlocatable or will not respond to your permission requests. Alternatively, there are plenty of companies online that provide low royalty or royalty free works for use.

3. Copyright Protection is Automatic

As mentioned previously, copyright protects original works of authorship, fixed in a tangible medium of expression. Thus, copyright protection attaches to a Work, the minute it is save, or fixed in a tangible form (e.g. written on paper, saved to a memory card or hard drive). Additionally, while the © symbol and other formalities were required in previous versions of the copyright law, that is no longer the case. The Copyright Act of 1976 removed all formality requirements to copyright protection. While it is no longer required, including a copyright notice or copyright symbol on your documents/works serves as a valuable educational tool to prevent intentional, and unintentional, copying.

PRACTICAL TIP: Just because you do not see a © symbol does not mean a work is not protected by copyright. But using the © symbol on your documents can be a useful tool to educate users that you are claiming copyright rights in a work.

4. Registration with the Copyright Office is not Mandatory

Registration with the Copyright Office is not mandatory but can provide certain benefits. Namely, registration provides a presumption of copyright validity and certain benefits when enforcing your copyright rights.

PRACTICAL TIP: Even if the work is not registered with the U.S. Copyright Office, unless it is original to you or your organization, you should generally still assume it is protected by copyright.

5. Licenses Expire
Most licenses have a defined Term and expire after a set amount time or other benchmark identified in the license agreement.

PRACTICAL TIP: Keep a database of all signed licenses and highlight important provisions including Term, royalties, and any relevant benchmarks.

6. Copyrights Can only be Transferred via a Signed Writing
Copyrights can be assigned or transferred at any time, however, for a copyright assignment to be valid it must be done via a signed writing. There are many copyright assignment templates and documents available online, which may be acceptable depending on your specific question. If you are not sure, it is a good idea to contact an attorney with expertise in copyright related transfers.

PRACTICAL TIP:  Ensure all copyright assignments are documented via contract or other written agreement.

7. Works Made for Hire
One copyright myth we run into regularly is the assumption that if you or your organization hire a third party to create a Work, you automatically own the copyright in that work. If the author of the Work is an employee of your organization, and the work is created within the normal scope of that employee’s job description, that assumption is likely accurate. However, if you engage a third party to develop artwork, a website, or any other creative work, unless that work falls within nine enumerated categories (which are much narrower than most people realize), copyright rights originally vest in the author of a work. Thus, in order for you or your organization to own those copyright rights, they must be transferred via a signed writing.

PRACTICAL TIP:  Ensure that all service agreements and any agreements with third parties have works made for hire and copyright assignment language included in them.

8. Not All Copyrights are Equal
Copyright protects original works of authorship fixed in a tangible medium of expression. Thus, originality is a requirement for copyright protection. While the originality requirement is not a high bar, it does have two distinct parts that must be met: 1) the work must have “at least a modicum” of creativity, and 2) it must be the independent creation of its author. However, simply meeting this standard does not always provide the greatest protection under copyright law. Courts have developed the concepts of “thin” and “thick” copyright protection. Thin protection extends to works that involve minimal creativity, or are based on other works and public domain information, while thick protection extends to wholly original or highly creative works.

PRACTICAL TIP: Just meeting the bare minimum of originality does very little for your business, both from a copyright perspective and from a marketability standpoint. Ensure your organization is making efforts to make the work original and creative.

9. Fair Use is Considered on a Case-by-Case Analysis
Any unauthorized use of a work is considered copyright infringement. However, for a variety of reasons, some uses are considered a “fair use” under the Fair Use Doctrine. Fair use is an affirmative defense to copyright infringement and all fair use analysis’ use four fair use factors to make a judgement call.

The four fair use factors are:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes,
• the nature of the copyrighted work,
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
• the effect of the use upon the potential market for, or value of, the copyrighted work.

While you can assert a fair use argument to any alleged copyright infringement issues, the only way a “final” determination can be made is by a judge or jury.

PRACTICAL TIP: Both for-profit and non-profit organizations may apply fair use, but each situation requires its own analysis and judgement call based on specifics of the situation as applied to the four fair use factors. For additional information regarding Fair Use, please visit the following link: “Copyright, Fair Use, and the Internet”

10. Understand Your Organization’s Risk Management

Copyright compliance = understanding your organization’s risk tolerance and making judgment calls.

Managing your copyright portfolio and compliance is really risk management. It’s vital to understand your organization’s risk tolerance while making judgment calls for copyrighted works and uses.

PRACTICAL TIP: Learn how to apply the law to your situations while understanding and being aware of your organization’s risk tolerance.

Brandon W. Clark is the Chair of the Copyright, Entertainment & Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com.