A Guest Post by Patti Jenkins, Hogue Hill, LLP
I often get questions from artists and writers about the legal rights they have in the works they create. Below are responses to questions I am often asked:
- What rights do I own in a work I have created? How long do those rights last?
- Do I need to do anything more to protect those rights?
- What happens when I sell or give away that work?
- Can I use someone else’s work in my work?
What rights do I own in a work I have created? How long do those rights last?
An artist or writer owns the copyright in their works. Copyrights are protected under the federal Copyright Act, which provides that “copyright vests in the author of an original work of authorship fixed in a tangible medium of expression.” What does that mean?
The “author” is the person who is the creator of an “original” work. An “original” work is any work that is the independent creation of the author. “Original” does not mean novel. For example, your manuscript may be about a subject on which many others have written. All that is required to be “original” is that is created by you and is your expression (not copied from another’s work). In other words, copyright protects your “expression” of your subject, not the idea of it.
Copyright “vests,” which means the copyright is created and owned by you in that work, immediately upon your creation of that work. You don’t need to do anything more to own the copyright in that work.
What does your copyright give you? It gives you, the author, the exclusive right to reproduce (copy, print, upload, etc.), adapt (create a screenplay from your book, for example), distribute (sell, rent, gift, lend, publish), perform, and display the work for a specific period of time. In general, for works created after 1978, those exclusive rights last for 70 years after the end of your life.
Do I need to do anything more to protect those rights?
Should you do anything more to protect your copyrights? For example, do you need to put a copyright notice on your works? For works created after 1989, you do not need to put a copyright notice anywhere on your work, but you should. A copyright notice can provide you with some legal protections if anyone wrongfully copies your work.
A copyright notice should include the words “copyright” or “copr.” or the symbol ©, the year of publication, and your name. For example, © 2017 Patti Jenkins. The notice can be placed anywhere on the work and should appear on all distributed copies of your work.
You should also consider registering your work with the U.S. Copyright Office, particularly if you intend to publish or otherwise distribute it. Registration of your work provides you with some legal benefits if anyone wrongfully copies your work. For example, registration of your work is required prior to bringing a lawsuit against another for copyright infringement.
Registration is a fairly easy, inexpensive process and can be done online with the U.S. Copyright Office. It requires that you complete an online application, pay the requisite filing fee (typically $35 for a single work), and upload a copy of the work. For works that already have been published, you also must deposit two physical copies of the work with Copyright Office. The U.S. Copyright Office (https://www.copyright.gov/) is a great starting place for questions about copyright and how to register and deposit a work, and links you to the online registration process.
What happens to my copyright when I sell or give away that work?
What happens to your copyright in a work when you sell, gift, lend, or otherwise transfer the work? The transfer of a work by sale, gift, or devise under your Will does not transfer the copyright in the work. If I buy your physical manuscript I do not automatically have the right to make copies, to publish or distribute it, or to create a derivative work, such as a screenplay, from your work.
If you wish to give those rights to another you can do so by a license or assignment of those rights. A license grants permission to the licensee to use your work and to exercise some or all of your copyrights to copy, publish, or distribute the work, or incorporate part or all of your work in the licensee’s work. An assignment is a sale of your copyrights to another.
If you intend to make a gift of your manuscript or a specific bequest of it under your Will, be aware that such gift or bequest may not necessarily transfer your copyrights (the right to publish, or otherwise copy or distribute, etc.) in that work to the recipient unless you specifically provide for such beneficiary to also receive all copyrights in the work.
Can I use someone else’s work in my work?
Let’s say, for example, you want to include stanzas of your favorite poem, or lyrics to your favorite song, or excerpts from someone’s letters to you, in your biography. Or you want to include your commentary about an excerpt from a piece written by another. Generally, using someone else’s work in your own work without their permission is an illegal infringement of their copyrights. There are, however, certain exceptions.
First, if the original author’s copyrights have expired, and the work therefore is in the “public domain”, you can freely use that work. Although, as a general rule of thumb, most published or registered works created prior to 1923 are in the public domain, you should search the copyright records to confirm this before using that work.
Second, the “fair use” of a copyrighted work for purposes of criticism, commentary, news reporting, teaching, scholarship, or research is not an infringement. The most common examples of this is when someone writes a scholarly article commenting or critiquing someone’s work, and includes excerpts from that work in order to do so. Whether the use of someone else’s work other than for scholarly commentary or critique (such as in the poem and lyrics example) is a “fair use” depends on the amount and purpose of the use and will vary from case to case.
Remember also that copyright infringement is different than plagiarism. Plagiarism is when you use another’s work without attributing its authorship to them. When in doubt as to whether your use of another’s work may be an infringing use, it’s always best to get permission from the original author, and attributing authorship to them is not the same as permission.
Have you copyrighted your work? Share in the comments!
Patti Jenkins is an attorney with Hogue Hill, LLP in Wilmington, North Carolina. Her practice includes estate planning and administration, corporate and copyright law. She advises artists, writers, and arts organizations on intellectual property, contract and corporate matters, and has done pro bono work through Volunteer Lawyers for the Arts.