Copyright for Creatives

1.1 Copyright

When we talk about copyright, we invariably think of the little c, often circumscribed by a circle, with a year next to it. We have it in our head that in order to be protected by copyright, that symbol/year combination must be present and visible.

And once upon a time, that was true. But in March 1989, the law changed to read that copyright is assigned at the moment an idea is fixed in a tangible medium, thereby removing the need for that symbol. If something creative exists, it has copyright protections until it enters the Public Domain. Period.

This rewording created a bit of a headache when people started using digital tools to create. That specific wording tangible medium doesn't seem to hold when the medium is cyberspace. But the bits that make up that creation take up real space in computer hardware, and therefore a digital creation is fixed in a tangible medium and covered by copyright.

Isn't living in the future fun?

What is Copyright?

Copyright is a set of legal protections covering a specific set of rights for creators and their work. It is assigned at the moment a creative work is fixed in a tangible form, and remains for a period laid out by copyright law at the time the creation comes into existence. (This is the single most challenging aspect of copyright, because the laws have changed quite a bit over the last century. At the time that I'm writing this, copyright lasts for the duration of the creator's lifetime, plus seventy years.)

A creation's copyright exists, regardless of whether or not the copyright symbol and year are visible, and the work does not have to be registered with some government agency to be considered "legitimate". However, if you have to go after someone for copyright infringement, sometimes not having the copyright visible and registered with the U.S. Copyright Office can affect any resulting settlements. Do what's right for you and your project, but know that it's your choice, not a legal requirement.

Under current copyright law, the rightsholder (more on that in a moment) has the exclusive right to:

* make copies of the work,

* make derivative works,

* distribute the work (original, copy, or derivative), and

* perform or publicly display the work.

If you are not the rightsholder and you do anything on that list, you have violated the copyright and may or may not be in for a world of legal hurt. Some creators take copyright violation very seriously.

The best way to gain legal access to a copyrighted work you would like to adapt, remix, or transform in some way is to work with the rightsholder (the entity who owns the copyright) to license the material. But there's a small catch: The creator may not actually be the rightsholder. If the work was created for hire or if the copyright was transferred to someone else for some reason (the creator's estate, a bad business deal, etc.), then the creator can't grant you any permission to use their work. You're going to have to find the rightsholder to gain those.

Properties where the creator is known to not be the rightsholder include:

Nancy Drew (Game company Her Interactive has a license from rightsholder Simon & Schuster to make their games.)

Babylon 5 (J. Michael Straczynski's Twitter account is an amazing education on this subject from someone who's been in these trenches. Highly recommend for those working with copyright issues.)

There are some things that can't be copyrighted, period. Primarily, these are ideas and processes. Ideas are not considered "fixed in a tangible media" (even if you put them somewhere that will affix some sort of timestamp to your idea, the premise behind the Poor Man's Copyright. Sorry.), and thank goodness, or very little would ever get done. Processes may be eligible for patents or trademarks, but it requires a great deal of documentation, research, and persistence on the creator's part.