what to ask before distributing copyright protected work

Is there copyright protection to something that I have created? Exercise I take the copyright to this? Have I infringed someone else's copyright past paraphrasing this section of the certificate? Whether you are an author, instructor, lawyer, blogger or student, almost everyone is involved in creating and using copyrighted works. In that location are new issues popping up whenever y'all change the circumstances copyright materials are being created and used.

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

Is there copyright to the work?
Who is the copyright owner?
What are the rights of copyright owner
When does copyright expire?
Is there an infringement of copyright?
Is "Fair Use" or other exceptions to copyright bachelor?

i. Is there Copyright to the Work?

Copyright constabulary is the easiest type of intellectual belongings to create and apply since it does non require registration. Copyright is automatic and immediate. It is created as soon as the original works of authorship are fixed in whatsoever tangible medium of expression. To determine if at that place is copyright to a work, nosotros demand to await into each element of copyright.

1.1 Is the work original?

There are two components to the notion of originality in copyright: inspiration and creativity. This means you thought of the thought yourself did not but re-create from someone else'southward work and added some elements of creativity to information technology. This is non difficult to satisfy in new books, manufactures, blogs, music, painting, art, photo, software etc. It is more than difficult to prove when a piece of work is a derivative of someone else'due south work.

For case, who owns the copyright if y'all make a painting from someone else'south photo? Strictly speaking, merely 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. And 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 photo? Arguably, a work on require minimum amount of creativity to exist considered original. As Andy has included other creative elements into the work instead of directly replicating from the original, the work would satisfy the inventiveness and original elements to be protected past copyright.

If y'all are taking photos of paintings at a gallery, there may exist copyright issue if the painting is non in the public domain (see below) and it is the sole component of the photo. On the other manus, if you are taking photograph of a section of the gallery with more than than 1 art work, and y'all selected the camera, angle, lighting, shades and distance. These are all creative elements that would requite 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 drove and nomenclature of data). However, copyright does not necessarily protect investment of labour, equipment and know-how, y'all 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 is to encourage people to build on existing cognition and share information on facts and discoveries.

1.two What is a tangible medium?

To be granted copyright protection, piece of work must be stock-still in a concrete grade that is capable of identification and concluding 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'southward right to the property by spray painting on a wall, simply that is a different legal outcome and does not affect the copyright to your work.

Tangible does not necessarily mean that it can be seen or read past human. Copyright is extended to sound or video recording, computer, data on cloud and on the internet. And so long as a piece of work that is saved and tin can exist seen, watched, used or heard on a device would allow for copyright protection.

The common categories of copyright protected works are as follow:

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 acoustic works
Audio recordings
Architectural works
Calculator programs and software

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

To proceeds copyright protection, first you lot need to fix them on a tangible medium, similar taking photos or videos of the work.
To bring a law suit to protect your right in the U.S., you volition first need to register your copyright.
Registration may be the hard part. For example, to annals a trip the light fantastic every bit a choreographic work, the dance will demand to take six additional elements:

Rhythmic movements in a defined sequence and spatial environment
Serial of dance movements organized into expressive compositional whole
A story or theme conveyed through movement
A presentation before an audience
A functioning by skilled individuals
Musical or textual accompaniment

two. 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 lensman is the copyright owner of the photo, and the artist is the copyright owner of the painting etc. This rule would more often than not apply to most creators of copyright works.

Notwithstanding, things get trickier if I employ someone to write this article for me. I am still the copyright owner as the employer of the author. All the same, if the author is not an employee simply an independent contractor, information technology may depends on what the terms of the contract. The agreement may only transfer some rights to me with the author keeping other rights. The owner of copyright may not necessarily holds all right in the work.

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

2.1 Joint ownership

Joint ownership occurs where 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 piece of work together to create a unmarried product.

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

Articulation ownership also comes with the right of survivorship, this means that the final person to outlast the other joint owners volition own the copyright in whole. And so joint owners may want to plan for management of their work and enter into a copyright buying agreement in order for their family inherit a fair share of the copyright.

2.two Work made for hire

For work fabricated for hire, the bones 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 an individual. The most articulate state of affairs that gives rise to work made for hire is where an employee produces a work within the telescopic 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 nether law. So the copyright of work washed by an independent contractor may not necessarily rest with the person paying coin for a piece of work. An employee and an independent contractor may be doing exactly the aforementioned work simply who gets to retain the copyright may exist different.

This also leaves open the historic period old question of whether someone is an employee or an independent contractor, specially in the era of gig economy, where remote working, freelance and slash jobs are condign the norm. Definitions of employees vary between different jurisdictions. Beneath 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 conveying on business on his own account
whether the person is properly regarded as part of the employer's arrangement
whether the person is free to rent helpers to assist in the work
bearing of financial take a chance over business
responsibilities in insurance and tax
traditional structure and practices of the trade or profession concerned

For the protection of 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 of import to state the ownership of the copyright under an independent contractor agreement. For contained contractor agreement where the client gets the copyright, please see the below:

https://docpro.com/doc1534/freelance-independent-contractor-agreement-uncomplicated-job-client

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

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

2.3 Government as copyright owner

If the copyright owner is the government, the work may exist original and fixed simply they are generally non protected by copyright. The works of U.South. government are by and large in the public domain and about of the 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 regime has not explicitly waived its copyright, reproducing such work may well autumn under the "fair use" exemption.

2.four Copyright buying relating to Banksy and NFTs

Banksy often does his work on someone else's wall without permission. And so who owns the right to Banksy'southward graffiti? The property owner would own the physical artwork itself, as function 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 equally he is the creator. So he has the right to make copies and sell them to the public.

Like concept applies for NFT, which stands for a not-fungible token. NFTs use blockchain technology to represent items such every bit photos, videos, sound, and other types of digital files. Buyer of NFT would buy from the creator and tracked on blockchains as proof of ownership that is divide from copyright.

The status of NFT owner is similar to that of the owner of the wall of Banksy'due south landscape. NFT owner owns the original digital work which cannot be copied (but the original file is open for admission past the public). However, the artist can still retain the copyright and reproduction rights, merely similar 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 bachelor for anyone to obtain, NFTs are tracked on blockchains to provide the owner with a proof of ownership that is split 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

two.five Transfer of copyright

Copyright can exist transferred, bought and sold or simply given abroad. Copyright is split up from the ownership right of the concrete artform, just like the example of Banksy. Selling a work does not normally include the auction 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 to the public.

Whatever transfer or assignment of copyright should exist made in writing. For an case of a copyright assignment understanding, delight see below:

https://docpro.com/certificate-course-select/Copyright%20Assignment%20Agreement

ii.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 organization or its employee, information technology seeks to allow the work to exist used by unlike 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 to the public nether a Creative Commons license. This grants permission to use the work for certain purposes, such as not-commercial utilize. This is also a slap-up 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 hands accessible. For example making the work available online to global readers. This does non mean that the copyright is relinquish simply as a way to boost traffic and forgo subscription acquirement in favour of potential advertising revenue. A good example are the online contents made for Search Engine Optimisation.

three. What are the Rights of Copyright Owners?

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

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

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

four. When does Copyright Expire?

The current dominion 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 lxx years. Then the copyright of the Sherlock Holmes novels accept expired but books written by Ernest Hemingway still take 10 years to go.

For work fabricated for hire, how practice y'all find out when the original creator has died if you don't know who the person is? If the work is fabricated for a visitor, does information technology mean that it never elapse since a company doesn't die? A work fabricated for rent has copyright protection for the shorter of 120 years from the creation of the work or 95 years from the publication of the piece of work.

5. Is there an Infringement of Copyright?

five.one Reproducing and Distributing Copyright Work

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

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

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

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

five.ii Making Derivative Piece of work

In general, only the copyright owner has the right to fix, or give say-so to create, a derivative of the work . So you will need the permission of the possessor earlier 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 ways yous tin 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 equally information technology tin be considered "fair dealing" (see below).

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

If you accept photos of public figures, yous are the copyright owner of the photograph. However, you tin 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'south names, epitome or likeness without their consent.

To utilise the image of a public figure for promotion, not only would you need to go consent to apply as a derivative work from the lensman, only also permission from the public effigy. The easiest mode to exercise and then is to buy the correct to use such photo from a photo library like Stockphoto.

5.iii Public Operation and Display

A performance and display of copyright piece of work may become an infringement if information technology is public. It is okay to perform in private to a circumvolve of friends, family, and social acquaintance. It would only constitute a public performance or brandish if information technology 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 education purposes. So a teacher tin can recite poems, read text, sing songs or even show a movie with students without infringing copyright.

Can the owner brandish the original piece of work in public?

Every bit discussed in a higher place, the possessor of the original piece of work may be unlike 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 let the owner of the original piece of work or a lawfully made re-create of the work (e.grand. book, photograph, painting, poster or print), to display the work where it is physically located. So an fine art gallery tin brandish an art in public, and a library tin can recommend books on its display shelf.

6. Is "Fair Utilise" or other Exceptions to Copyright bachelor?

It would exist difficult or even impossible for a modern lodge to function if you demand to get the 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 cognition and economy. The most important exception being "off-white use".

6.ane Fair Use

Fair Use is a express right to use a copyrighted work without permission from the copyright owner under specific purposes. For case, education, news reporting, enquiry, commentary or criticism. The use of the piece of 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 utilise of the copyrighted work fifty-fifty if it is for social purposes, there are four balancing factors that off-white apply is based on:

(a) Purpose and Character of Employ

The showtime question to ask in determining whether "fair use" tin can is applied - is the use of a copyrighted piece of work of a commercial nature or is for non-profit educational purposes? Apparently photocopying materials for classroom is much more than probable to be fair use than photocopying materials for a business concern meeting.

However, commercial utilize does non 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 equally fair use. Even though it is a commercial product, information technology is likewise a commentary or criticism of the moving-picture show. This tin can also been seen as a transformative use of the copyrighted piece of work, which is the 2d question to consider if specific purpose does not apply.

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

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

(b) Nature of the Copyrighted Work

1 will as well demand to examine the nature, characteristics and qualities of the copyrighted piece of work to see if information technology is more worthy of protection than others. For example, it is more often than not held that "fair utilize" does not utilise since copyright owner should be able to decide on whether, when and how to publish the work.

In improver, copyright more often than not offers greater protection for fiction than non-fiction. This is because non-fictional works are more than likely to advance human knowledge than fictional work, which is exactly how the "off-white utilise" exception is existence practical.

For consumables such as a workbook, copies may undermine the value of the copyright works and harm the marketplace. As such, this may weight on whether reproducing materials even for educational purpose would constitute "fair use". On the other hand, if a copyrighted piece of work is out of impress, so it may not be harmful to the copyright owner'south market place and replicating it for educational purpose may be considered "off-white use".

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

In that location are no hard and fast dominion on the allowed percentages and word counts on what would establish "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 piece of work and the amount needed for the purpose nether the first cistron. In general, the smaller the portion is used, the more likely information technology would plant fair use. Yet if a curt excerpt is copying from the middle of the piece of work (e.g. a primal finding or a formula), information technology could still be outside of fair use.

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

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

(d) Consequence of Utilise Upon Potential Market or Value

This may be the most of import cistron in considering "fair use" – whether the employ is likely to harm the value of the work and its market place. If your use is probable to damage the copyright owner'due south sales or potential markets, then the court may determine against "fair use" even if the starting time 3 factors are satisfied.

For case, the utilize of pirated educational software in classrooms would non be a "fair apply" fifty-fifty if the purpose is to teach. Similarly, the sharing of movies / music online would also exist detrimental to the marketplace of the copyright possessor which was an important determining gene in the case of Napster.

Market place effect can be very unlike depending on the situation, the ultimate question is whether the utilise would inhibit sales if information technology becomes widespread. Some use of the work may actually increase the value, for instance sharing it on social media. It is generally easier to show market damage if it is for a commercial purpose than that of an educational purpose.

Off-white Use is ultimately a question of good faith. We take developed a Checklist on the Fair Utilize of Copyright to assistance you with determining whether the fair use exception applies in light of the 4 factors.

half-dozen.2 Offset Sale Doctrine

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

6.3 Estimator Program

The owner of a copy of a computer software too has the right to make actress copy in the event of harm to the original copy. The owner tin also modify the original software to suite his / her need.

vi.4 Non-commercial performance

Non-commercial operation such as school choirs, musicians or poetry reading may be done and so long as they are conducted without commercial purposes or payment of fees to the performers. Please annotation 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 get back and rely on fair utilise.

7. Conclusion

Whether you are a copyright owner, licensee or user, ultimately it is about managing your use of copyright to your reward. Y'all will demand 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, information technology tin be a win-win situation for both copyright owners and users, besides as for the society as a whole in the advocacy of noesis and pedagogy.

Please note that this is a general summary of the position under mutual police and does non constitute legal advice. Equally the laws of each jurisdiction may be unlike, you may wish to consult your lawyer.

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Source: https://docpro.com/blog107/common-copyright-questions-answered-by-copyright-lawyer