Introduction

Welcome to the Simplifying Legal podcast, brought to you by Businessese. I’m your host, Danielle Liss.

Many years ago, someone told me I was the least lawyer-y lawyer she’d ever met because I helped make legal easier to understand. To this day, it’s one of the best compliments I’ve received in my professional life.

If you’ve ever felt legal was too scary, too overwhelming, too complicated, or just plain incomprehensible, you’re not alone. The Simplifying Legal podcast was created to help. 

In each episode, we’ll do a deep dive into a legal topic and give you concrete next steps so you can apply it to your business. 

My goal is for you to walk away from each episode thinking, oh, that was easier than I thought it would be.

Let’s get started.

Episode Content

Hey there, I’m Danielle. Welcome to episode 30 of Simplifying Legal for Small Business Owners. Today, we’re talking about copyrights, which is a topic that I’ve referenced before in a handful of episodes and now it’s time to do a deep dive. 

Disclaimer: As always, before we get into today’s topic, a quick disclaimer. This podcast is meant to provide you with legal information only. It’s not legal advice and does not create any type of attorney-client relationship between us. Please don’t take any action without consulting your lawyer first. 

Copyright Basics

Okay, let’s dive in. We’re going to start with some basics and then get to frequently asked questions. 

To start, let’s talk about the most important thing: What do we mean when we talk about copyright?

Copyright is a type of intellectual property that protects the original expression of ideas. As a reminder, intellectual property, which is commonly referred to as IP, is a general term for 4 categories of rights in creations of the mind. In addition to copyrights, IP generally consists of trademarks, patents, and trade secrets. 

I understand it can be difficult to remember the differences in all of the types of IP, remember that copyright is related to the original expression of ideas. 

This original expression of an idea can be in various forms and media, which include: 

• Literary works, which can include copy, books, newsletters, and user manuals. Computer programs are also considered to be literary works
• Next, are musical works, like songs, song lyrics, and musical arrangements. 
• Next, are dramatic works, which also includes any accompanying music. For example, this category includes screenplays, stage plays, and scripts.
• Next are pantomimes and choreographic works, like dance movements and gestures.
• Next is pictorial, graphic, and sculptural works, which includes paintings, photographs, drawings, prints, diagrams, maps, and models.
• Next is motion pictures and other audiovisual works, like films, tv shows, and video games.
• Next is sound recordings, like a recording of a song or a spoken performance.
• Last, is architectural works, like buildings, architectural plans, and drawings.

These are some of the things that are covered. Additionally, remember that it’s possible for an original work to cross multiple categories. 

It’s really important to note that copyright law doesn’t cover everything. More specifically, copyright does not protect:

• Ideas, procedures, processes, systems, methods of operations, concepts, principles, or discoveries
• Titles, names, short phrases, slogans, or recipes
• General layouts or formats, like a website, poster, or book cover.
• Common symbols and designs, like abbreviations or familiar religious symbols).

Additionally, typefaces, fonts, and lettering are generally not copyrightable even if the typeface characters are novel or creative unless there are pictorial or graphic representations incorporated into the typeface or there is some type of ornamentation. 

Copyright Law

Since it doesn’t cover everything, how can you know what is or isn’t covered by copyright? A work is automatically protected by copyright if it is both original and fixed in a tangible medium. So when you aren’t sure if something might be covered by copyright, remember the key terms are originality and fixed, which have specific meanings under copyright law. 

• If something is original, 
  • It’s independently created by the author(s); and
  • It has some minimal creativity. But, remember, as stated above, certain things don’t have the level required of minimal creativity, like a recipe. 
• If something is fixed, it means that the work is captured in a tangible form like a video or image. If you’ve expressed the original idea in one of the forms I mentioned before, like literary, audio, etc., that’s considered the fixed tangible medium. 

Copyright Registration

Similar to trademarks, which I discussed in the last episode, there are common law and statutory rights associated with copyright. This means you can have common law rights without the formal registration process or statutory rights that you obtain by registering a copyright. 

You don’t necessarily have to register with the US Copyright Office to have copyright protection. You are still the author of the work and can assert common law rights without registration. Even without registration, you still have all of the exclusive rights of a copyright owner, which I’ll discuss in a moment, and you can license or assign those rights. 

But, if you do formally register with the copyright office, you do get additional rights, like the right to bring a lawsuit for copyright infringement.

Additionally, your potential recovery of damages and fees may be more limited without formal registration.

Also, depending upon your business, copyright registrations can be filed with the US Customs and Border Protection Service to stop the importation of infringing copies and seize foreign pirated copies of a work. This is an important consideration for some product-based businesses. 

Copyright registration also creates a public record related to the work’s authorship and ownership. 

Owner’s Rights

Now that we’ve established what copyright is, let’s talk about the exclusive rights that are covered by a copyright.

A copyright provides its owner with certain exclusive rights, which include: 

• The right to reproduce the work, which means making copies of a work. For example, making a print of a piece of art. 
• Next is the right to distribute the work, which means transferring ownership of a copy of a work, or transferring custody of a tangible copy, like through rental or lending. This may mean the ability to sell the prints or a piece of artwork.
• Next is the right of public performance of the work, which could include a public performance of a song or play. 
• Next is the right to publicly display the work, like a piece of art. 
• And finally is the right to create derivative works, which includes making adaptations of a work, like a translation or a movie or tv show based on a book. The show Big Little Lies is an example of a book adapted into a tv series. 

Copyright Permissions

A copyright owner has all of these exclusive rights and they can give other people permission to engage in certain activities, which is typically referred to as a license. For example, let’s consider a piece of stock photography. 

A photographer may license their work to be available for distribution through a certain stock photography site. If I were to purchase a stock photo, I will then receive a license to display that photo on my website, for example. Usually, this license will be limited and I’ll be restricted from selling or sharing the content with any third parties. It may also be restricted to state that I can only display it in certain contexts. For example, on my website, but not in a commercial product, like a book cover. 

As a content creator or someone who uses other people’s content, it’s extremely important to understand how these exclusive rights work under copyright law. This is something that comes up a lot when we talk about getting permission to use someone’s work. 

Copyright Notices

Next, let’s talk about copyright notices. 

A copyright notice provides information about the copyright ownership of a work.

A typical copyright notice placed on a copy of a work includes the copyright symbol, which is the c inside of a circle, followed by the year of the initial publication and the copyright owner, for example:

© 2021 Businessese LLC

If a work was created after March 1, 1989, a copyright notice isn’t required, however, there are benefits to including it since it informs viewers that you are claiming copyright in the work. This way, someone can’t claim that they didn’t know that the work was copyrighted. 

Duration of Copyright

Next, let’s talk about the duration of copyright. 

How long a copyright lasts is typically dependent upon the author. Generally, if a work was created after 1978, copyright protection lasts for the life of the author plus 70 years. 

If it’s a joint work, it’s 70 years after the death of the last author. 

For a work made for hire, an anonymous work, or a work created under a pseudonym, the duration of the copyright is either 95 years from the publication of the work or 120 years from its creation, whichever is shorter. 

After the copyright expires, the work is considered part of the public domain and no one will hold those exclusive copyright rights. In some cases, the copyright may last for a longer period, so you may want to research the relevant duration statutes. 

Copyright Law and Frequently asked Questions

Now that we’ve discussed some of the general aspects, let’s talk about some of the most frequently asked questions I hear about copyright law. 

First, how can a small business protect their copyrighted works?

• First, Register important copyright assets. You can set an internal policy to register certain works. For example, if you are a course creator, you may want to copyright the eligible materials from your course. 
• Next, include the appropriate copyright notice on all of your copyrighted works, whether the works are registered or not. This includes your ebooks, lead magnets, website, etc.
• Next, do not allow third-parties to use your copyrighted works without permission.
• And last, promptly report any infringements.

For more information, check out episode 22, where I discuss how to protect your content. 

Next, I get a lot of questions about how to use someone else’s content. 

The general rule will be that you need to get permission to use someone else’s content. This might be direct permission from the content owner where they grant you a license to one of their exclusive rights, or it might be that they have indicated certain types of permissions on their website. For example, someone may state in their terms of use that you can use one of their images if you link back to their site. But if that isn’t specifically stated, you need to get permission.  

But what about content that you don’t have permission to use. This gets trickier. 

The Copyright Act permits certain limited uses of copyrighted works without the owner’s permission. First, if a work is in the public domain, meaning it is no longer protected by copyright law, then you can use it. 

You may also be able to use works under the fair use doctrine.

There may be other exceptions available, but these are the most common. 

Now, for one of the biggest questions: What is Fair Use?

Fair use is an exception to the copyright law which allows certain limited uses of copyrighted works without the copyright owner’s permission. 

Examples of what is potentially considered fair use include:

• Criticism;
• Commentary;
• news reporting;
• Teaching;
• scholarship; or
• research.

When considering fair use, we look at the following: 

• The purpose and character of the use. For example, whether it is for a commercial or a nonprofit educational purpose.
• The nature of the copyrighted work (whether the work is creative or factual)
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use on the potential market for or value of the copyrighted work.

The determination of fair use is highly dependent on the particular facts, and the distinction between fair use and infringement is not always clear or easily defined. Generally, I advise people to stay away from a reliance on fair use unless it firmly fits into one of the categories listed above. 

Now, for another one I’ve unfortunately heard a lot: If it’s on the internet, it’s in the public domain and therefore, fair use to use it. 

Please do not use this explanation. I’m not sure where this came from, but it’s generally not right. And yes, I’m sure someone can find an example where this feels like it applies, but this explanation doesn’t really work. 

Remember: Simply because something is published online does not mean that something is in the public domain. Public domain means that there are no applicable intellectual property rights attached to the work. It does not mean that someone’s rights are more limited simply because the public can access it. 

Additionally, fair use isn’t necessarily related to work being in the public domain.

It’s important to know what those terms mean under copyright law so that you are using them correctly. 

What about when I post to social media? 

When it comes to social media, please check the applicable platform’s terms of service regarding copyright. This can vary. 

Generally, if you want to use someone’s content from social, I recommend getting permission from the content owner.

How do I cover ownership and copyright in my contracts?

For more about content ownership in contracts, listen to episode 13, which gives an in-depth look into content ownership. 

But, generally speaking, the creator of the copyrightable work owns it, unless there is an agreement that states otherwise. In some circumstances, like an employee creating content for an employer, it may be a work for hire. Additionally, the copyright owner may grant a license for certain rights to the work. For example, the copyright owner may grant a limited license for someone to display the work. Additionally, a copyright owner may assign their copyright rights to another party. 

How Can You Avoid Infringing Third-Party Copyrights?

When it comes to avoiding infringing on someone else’s rights, there are a few things you can do: 

• First, implement standard operating procedures on how you use content created outside of your business. Make it clear that just because something is online, that doesn’t necessarily mean that you can use it. 
• Next, know your licenses and permissions. For example, if you purchased stock elements, what license do you have to use them? I know this may be painful for some of you, but check the terms of service to see what you can and can’t do. Since a lot of people use Canva, I often refer to their IP licenses. Get to know what you can and can’t do because it varies.
• If you have a team, make sure they know your policies on using third-party content. Go back to that standard operating procedure and make sure they know what you want to do. Additionally, especially in the case of contractors, make sure your agreement with them states that they will not use work from third parties. 
• Finally, if you need to use someone else’s work, seek permission. Sometimes, this is as simple as sending a DM to ask to use a photo. Or, depending on what you want to do with the content, you may want to enter a more formal licensing agreement. 

Action Steps

Let’s close with today’s action steps. 

1. First, does your business have original copyrightable content? This might be blogs, website, lead magnets, etc. If so, does it have a copyright notice? If it doesn’t, make sure you add this.  
2. Next, do you need to submit any documents for registration with the copyright office? 
3. Next, has your business licensed any content from third parties? If so, are you using the content in accordance with the license? 
4. Last, as always, if you have questions about copyrights, please talk to a lawyer. I offer this type of service through my law firm, Liss Legal. If you have questions, I’d be happy to discuss them with you. Visit Lisslegal.com to learn more. 

Thanks for joining me for today’s episode.

I’d love to connect with you outside of the show. Visit Businessese at businessese.com. To find show notes for today’s episode, visit businessese.com/podcast.

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Thanks for listening and we’ll continue Simplifying Legal on next week’s episode.