Copyright For Creative Works & Its Limitations
There’s a very fine line between “inspired by” and “copied from”, especially when it comes to creative works. Artists and crafters put a lot of thought and hard work into their pieces so it’s no wonder they’re protective of their intellectual property. Who isn’t? However, people don’t always understand what is legally their intellectual property and what is not, leading to public accusations of copyright infringement with little to no actual legal backing. If you’re starting a business selling handmade items or you’re interested in protecting your designs or artwork it’s important to understand what copyright really is and what its limitations are.
Quick disclaimer: This article is the result of my own research and should not be considered legal advice.
Copyright in a nutshell
The Merriam-Webster dictionary defines copyright as “the legal right to be the only one to reproduce, publish, and sell a book, musical recording, etc., for a certain period of time”, while legal dictionaries define the term as “the exclusive right of the author or creator of a literary or artistic property (such as a book, movie or musical composition) to print, copy, sell, license, distribute, transform to another medium, translate, record or perform or otherwise use (or not use) and to give it to another by will.”
Both definitions are essentially saying the same thing. As soon as a work is created, in a tangible form, it automatically becomes the intellectual property of its author. It’s important to remember that simply having an idea, without expressing it, doesn’t afford you the copyright over it, hence the term “tangible form”. In other words, the “I thought of it before he did” argument is worth absolutely nothing, so don’t waste your breath.
Another essential aspect is that owning the copyright to a work affords its author the right to not only do whatever he wants with it but impose limitations on how others use it. These are called “licenses” and they come in many shapes and sizes, which I’ll cover a little later. They’re also what many of us ignore and skip when agreeing to the terms of a website, software or other digital services.
Ignorance is not bliss
Sometimes people talk about licensing terms and copyright like they’re guidelines. Nothing could be farther from the truth. Whether you are aware of someone’s copyright or not, you are bound by it. In other words, ignorance does not absolve you from having to abide by the law. That’s right, “I didn’t know” won’t work either. It falls upon each of us to read, understand and follow the limitations imposed by every single copyright holder.
“Ignorance of the law does not excuse”
Not everyone is aware of their rights or jots down licensing terms but that doesn’t mean they’ve relinquished the right over their intellectual property and much less that you can do whatever you please with it. As a rule of thumb, you can use the “every creative piece belongs to somebody” principle and if you want to use it in any way, either track down the license it has been released under or ask the copyright holder himself. By default, online content is “all rights reserved”, even if its author hasn’t published a license to that effect.
Not everything can be the copyrighted
Little to no understanding of what can be the object of copyright is the root of all the frustration and false accusations creatives have to deal with. As I’ve mentioned before, you can’t copyright ideas because they’re not fixed in any tangible format, so good luck proving you’re the original author. But even when you’ve expressed your idea by saving it on a digital storage unit, piece of paper, photo,etc, there are instances in which you can’t claim it as your intellectual property. If you’ve created a piece of embroidery featuring a rose, you can’t legally prevent others from ever embroidering roses. Similarly, while this article, as a unit, is my intellectual property, you can certainly use the idea behind it to create your own, unique piece, which in turn will be your own intellectual property.
However, if you were to translate this article into another language that would mean you’ve created a “derivative work”, which doesn’t affect my copyright over this article in any way. What’s more, The Berne Convention states that “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.” A derivative work has to contain enough original material to be considered a new piece, like a movie script based on a book. However, it is entirely up to the original copyright owner to allow the production of such a piece. Simply put, for as long as I retain the copyright over this article, you can’t translate it without my say-so. On the other hand, if you were to write your own article on the subject, which contained excerpts from this one, used with my permission of course, you’d end up with a brand new work, that is your own intellectual property and does not affect my copyright in any way.
Protecting your work
Unfortunately, there’s only so much you can do to protect your work. Copyright notices and licenses will keep the ignorant informed and will prevent honest people from misusing your pieces by mistake but it will do nothing to stop thieves. Many view a “free internet” as free for all, asserting that if something is available, it’s theirs for the taking. This isn’t only unethical, it’s down-right theft. There’s very little you can do to deter this group because if it can be viewed online, it can be copied, saved, altered and republished. Currently there are no technical measures that can be imposed that would allow something to be viewed but not saved or copied locally.
Very often people ignore their obligation to respect other people’s intellectual property thinking they won’t get caught or that even if they will, nobody is going to bother to sue them especially if they live half a world away. If you’re one of them, you might be in for a rude awakening. It’s true that taking someone to court is expensive no matter where you are. It’s also true that there is no universal copyright law and every country has its own interpretation of it. However, licenses are bound by the copyright laws in effect in the country where they were released. In layman’s terms, even if the laws in your country of residence state you can republish this article without asking for my permission, EU law prevents you from doing so and you’re bound by it. Here’s a list of Copyright Acts in effect worldwide. If you ever need more in-depth information regarding copyright laws in your country don’t hesitate to seek professional legal advice, it’s always better to be safe than sorry.
Stand up for yourself
Copyright notices can only do so much to protect your work and sooner or later you’ll probably have to face less than ethical individuals. If you feel your copyright has been infringed, the first step is sending a Cease & Desist letter, notifying said individual or business of wrong-doing and threaten legal action against them unless they stop. Not every business has the financial resources to have lawyers draft this kind of letter so if your budget is tight, you can always use one of the hundreds of templates available online. Plagiarism Today and Thompson Hall are only a few websites that offer such templates. There’s even an online Cease & Desist letter generator you can use, although it’s still under construction.
On the one hand individual artists ignore the rights of larger brands thinking it would cost businesses more to take them to court than they’d get out of the lawsuit, whereas big names “appropriate” artwork thinking individual artists will be too intimidated to pursue legal action against them. One should never underestimate the power of setting an example and you really don’t want to be the poor sap to take on a big brand, with an army of lawyers behind them and almost unlimited resources. Likewise, artists thrive in communities and they tend to have a very loyal following. In the context of social media and forums, public shaming is only a few keystrokes away and the fallout can be disastrous from a PR standpoint. If you still believe “this won’t ever happen to me” you might learn a thing or two by reading Smithsonian Magazine’s piece on 10 others who thought this could never happen to them.
The bottom line
If there’s one thing I hope this article has accomplished is make you realize that online does not equal copyright free and that not understanding or knowing the law does not excuse you from having to abide by it. I have tremendous respect for artists and the hard work they put into their creations, which is why, even though I use public domain images on my blog that don’t require attribution, every image is accompanied by the name of the artist or website they came from and a link. Yes, I’m trying to start a trend. Considering the abundance of resources, templates, articles, forums, groups, social media communities and pages containing in-depth explanations and practical examples you really shouldn’t need any excuses to not respect someone’s intellectual property. Below you’ll find a list of useful resources for further reading and remember, when in doubt, always seek legal advice.
Directory of Intellectual Property Offices – this is where you find where you can register your copyright in your country
Dictionary of legal terms – this is where you can search for the definition of all those tongue-twisting legal terms
List of Copyright Acts Worldwide – this is where you’ll find the copyright laws in effect in your country