Step One: Determine Whether the Work Can be Copyrighted
In order to obtain a copyright, you will first need to decide whether the thing you wish to copyright can be copyrighted. A copyright is a form of protection granted by the United States federal government which applies to an original work of authorship fixed in a tangible medium of expression. 17 USC 102(a). For something to be protected by copyright, it must be: (a) original, (b) a work by an author, and (c) fixed in a tangible medium of expression. The Copyright Act cites several examples of potentially copyrightable works, including choreography, sculptures, photographs, pictures, music, and literary works. That list is by no means exhaustive but so long as the work is an original work created by you, fixed in a tangible medium of expression, then there is a good likelihood your work is copyrighted. If you want more information on what constitutes a copyright read our prior blog here.
Step Two: Fix the Work into a Tangible Medium of Expression
Second, once you have fixed the original work into a tangible medium of expression, by writing it down, typing it up, taking a photograph of it, etc., the work is a copyright. It is important to recognize that your copyright is limited to your fixation of the particular expression, meaning that you still only own the right to reproduce the work you created, not the idea. For example, if you videotape a portion of the Superbowl on your camera, if that game is recreated as part of a television show or movie, you do not own any rights to that television show or movie by virtue of your video. Further, if another version of the game is shown by someone else who videotaped the game, including the NFL, you do not own any rights to the other taped versions of the game. The only thing you might own a copyright to is your version of the videotaped game. Further, just because a copyright has been created does not mean that either: (a) you own the copyright; or (b) that the copyright is legally enforceable. Now that the copyright has been created, you will need to determine who owns the copyright.
Step Three: Determine Who Owns the Work
Third, if you created an original work of authorship and fixed it in a tangible medium of expression, you are likely the copyright owner BUT there are three very important exceptions. First, if you created the work with other people, every person is a joint owner of the work, entitled to equal copyright protections to the joint work. However, this can be negotiated by contract, so the default rule is that each person who contributed to the work is an equal author and owner, unless there is a contract between the creators stating otherwise.
Next, if the work was created as part of your scope and course of employment with your employer, your employer automatically owns the work as a “work for hire”. For example, if you are a cartoonist at Disney, and you create a cartoon television show with Disney, Disney owns the copyright to the television show. You have no rights to the television show. In effect, you were compensated on the front end for your future copyrights with your employment with Disney. However, if you work at Bass Pro Shops as a cashier, and at night you create an amazing sci-fi video game, Bass Pro shops cannot claim ownership to your video game, because your video game had nothing to do with your employment with Bass Pro Shops as its cashier.
Furthermore, you can contract away your copyright as part of a “work for hire” agreement. For example, if you are an artist who has been commissioned to paint a portrait of a famous person, likely that famous person (or one of their representatives) will have you, as the painter, sign a work for hire agreement, agreeing to give any copyright to the portrait to the famous person. Without this agreement, while the famous person would own their own physical version of their portrait, you could always use a copy of the portrait to advertise your services as painter, either online or at art shows. You might even be able to make copies to sell to other people. Instead, with this work for hire agreement in place, you as the painter will have no right to reproduce or commercially exploit this work in the future, because you will not own the copyright, the famous person will. If you need to draft or negotiate a work for hire agreement, you should consult with an experienced copyright attorney who can guide you through how they work and what to look out for.
Step Four: Register your Copyright
Finally, should your work not fall into the above exceptions, you should register your copyright with the United States Copyright Office. The process can now be found online at the Copyright Office’s website, and the application typically takes less than an hour per copyright if the copyright is not complicated or complex. The process typically costs less than $100.00 per copyright and, once processed, the United States Copyright Office typically takes several weeks to several months to finalize your registration. If your copyright is registered, you will receive a Copyright Registration from the United States Copyright Office, and you will be able to find your copyright online when you search the copyright office’s website. Most importantly, a registration with the United States Copyright Office is REQUIRED if you want to legally enforce your copyright in a court of law in the United States. Without a registered copyright, your copyright infringement claim will be dismissed as a matter of law, and you will not be able to recover any potential damages for copyright infringement without a registration from the United States Copyright Office.
If you have any legal questions about securing a copyright or are considering taking legal action in regards to copyrights, call Boatman Ricci at 239-330-1494.
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