Copyright Explained

I was studying copyright law for the past few weeks, and decided I should share what I’ve learned.

What Does Copyright Protect
Copyright law protects anything physical. It does not protect ideas, processes, techniques, or any of that. The actual text of an idea can be copyrighted once it’s written down, but the other stuff requires a patent, or an actual work based on the idea. (In other words, keep your ideas to yourself and maybe some close friends until you can make a copyrighted finished product out of the idea.)

There are six (well, five we probably care about) things that copyright considers separate rights. When talking about “giving permission,” it could be one, all, or even limited or partial access to any rule.

1) Right to create copies
2) Right to distribute copies (give, rent, sell, lend, etc)
3) Right to publicly display copies
4) Right to preform the work (like a play or projection)
5) Right to create derivatives of the work.
6) Right to broadcast the work (radio)

If you give someone access to the first right, they can make a million copies — but they couldn’t give them to anyone. They could hang them up in their house, but not a public place like a workplace.

Rule number four (I made up the numbering, mind you) would be permission to use one of your pictures in a speech and projecting it on a screen for part of the presentation. It may also apply for a large physical print of it in that case, or that could be number 3. The easiest way to deal with it is to simply give them the right to use it in the case that they need it, not try and word it by the law.

Number five is what I was missing when originally trying to understand character copyright. Let’s put it like this. Say you build a character out of marshmallows and take a picture of him. Since the original is quickly eaten afterwards, all you have is a series of photos of him. What if someone takes those photos, recreates the guy, and takes more pictures? They’re not the original pictures you copyrighted, so it’s ok, right?

Rule number five says no. It’s based on the original, so it’s covered under the original copyright. You technically own the copyright on these new works someone else created. There is no law as to “how different” something has to be not to be a derivative work, but I’ve heard everything from 10% to 60%.

When you’re selling your artwork, make sure you also give them a notice of what you’re selling. Rob Kmiec of DigiPen said that he’s seen people turn things in to an Art Director, get paid $200 for it, and a few years later see that same piece sitting in an art gallery with a $2000 tag on it. And since they “sold” it, it’s not theirs anymore so they have no rights. Make sure people know, through a written and signed-by-them contact, what rights you’re giving them when you sell them sometime.

How Do I Copyright Something
As of March 1st, 1989, copyright happens auto-magically. As soon as your work is created (art drawn, film developed, or digital picture taken, etc) it is copyrighted to you. If you want to defend your copyright in court, you’ll need to officially copyright it first, which costs you $45 or so. I think it’s $10 cheaper if you do it online. But there’s really no need to do that unless someone infringes and you need to take them to court.

Though I am fuzzy on how the officially filed copyright date may effect a court case. Like if someone files a copyright they broke from you, then you file one afterwards. In such a case for art, the judge would want to see the preliminary sketches and early work leading up to the final piece in order to tell who made the original.

Before March 1st, 1989, the rules are all wonky. So I won’t even be covering them.

Copyright protects your work for your lifetime, plus 70 years.

A copyright notice, which is no longer needed to create a copyright but is still useful, should contain the following pieces to be an “official” copyright notice:

1) The word “Copyright” appearing as a C in a circle, “Copyright” or “Copr.”
2) The year
3) Your name, a common nickname, or a recognizable initials.

These are all valid copyright notices:

Copyright 2007 Creighton Medsker
Copr. 2007 Stickman
(c) 2007 CM

Since a notice isn’t required anymore, it’s not so important. But it’s good to be educated, and good to date things.

How Do I Defend My Copyright
So what happens when someone infringes on your copyright? There’s a simple, two step process involved.

1) Threaten to take them to court if they don’t stop, perhaps demanding some amount of compensation if appropriate.
2) Take them to court and sue them for up to $30,000 per infringement, or even $150,000 per infringement if it’s proven to be a willful violation. (I’ve been told lawyers don’t care to deal with it unless it’s worth at least $50,000)

Did you see that? No police involved. No FBI. The problem is between the copyright holder and the infringer, and the court acts as an intermediary to uphold the law. There are exceptions, like when a big company can’t find someone they know is infringing and want to hunt him down, and so the FBI comes in to keep them happy. Or something. I don’t know the official relationship.

When Is It OK to Use Someone Else’s Copyright
Now let’s talk about this misunderstood “Fair Use” thing. “Fair Use” is a legal term. They might as well have called it “Lemon Pie” for all the word has meaning related to the common English term.

The Fair Use rule does not mean it’s ok to break copyrights. It sounds like a list of exceptions, but it’s intentionally vague. Copyright is handled on a case-by-case basis. The Fair Use list is actually defenses that you can use in court to justify why you broke someone’s copyright. And if your reason is good enough (compared to the other guy’s reason why you shouldn’t have) then you can get away with it.

The list of Fair Use are: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” Odd… I could have sworn “parody” was on that list. Well, whatever. Parody is defensible in court. Just remember that parody is using a copyright to make fun of the copyright. Using the copyright to make fun of something else is called a satire and tends not to hold up in court. Parodies hold up even when people are making money off them.

That is, if you draw Sonic the Hedgehog in a tutu, that’s a parody. If you draw Sonic the Hedgehog getting ripped off by a GameStop employee, you’ve crossed the line. (Unless Sega owns GameStop and I wasn’t aware of it.)

Originally, just about any educational purpose was acceptable, but these days not even education is safe.

When determining if something is “Fair Use,” the court will look at the following four factors:

1) The purpose of using the copyright, including non-profit educational or commercial use.
2) The nature of the copyrighted work.
3) The amount (AND substantiality) used of the copyrighted work.
4) The market effect on the copyrighted work

For example on substantiality in number three, if you quoted 300 words from a 500 page book, but those 300 words were the “heart and soul” of the book, you could lose the case.

Is Fanart Legal
As I finish up here, I’d like to point out that “fanart,” which is very common, is copyright infringement. There are a few reasons why no company does anything about it.

1) It would be stupid of a company to take their biggest fans to court.
2) Fanart artists are usually quite poor. The company would lose more money by suing them than it would potentially make.
3) The case may not actually hold up in court, because of Fair Use factor four, above. It can be argued that fanart (some of it, at least), actually encourages people to like and buy the product.

In other words, if you break a company’s copyright, and you’re above the “average Joe” radar (rich and/or famous), you could find yourself in hot water.

For more information, you can check out these links:

If you have any questions, feel free to ask on the forum. I’m no lawyer, but copyright is one of the many things I need to be familiar with, and if I don’t know the answer to a question, I’d like to look I up.