Articles and Writings

As an artist, academic, or content creator, registering your work with the Copyright Office is the best way to defend against copycats and exploitation. Only registered works can be enforced under U.S. law, and infringement of a registered work can mean legal fees and additional damages for you.

Registering sounds difficult and expensive. What's the point? I'm automatically protected... Right?

It's well established that all artists, regardless of medium, understand one basic truth: Filing paperwork and interacting with government bureaucrats kills the creative process. The law is a lot. Copyright law is no exception.

Many creatives take a wait and see approach with their copyright interests, hoping to avoid problems through sheer luck and positive thinking.

However, if you don't register your original works with the Copyright office BEFORE infringement, you're leaving money on the table.

Let me explain why.

Most people with a surface-level understanding of Copyright law understand that copyright interests exist as soon as a work is created. The second the camera snaps or the last word is written, the copyright interests exist. Unfortunately, that's not the whole story.

The U.S. government doesn't enforce copyright interests for unregistered works. Even if somebody directly copied your incredibly famous unregistered work, you would still be required to register the work before you could successfully sue the thieves for infringement.

Pre-infringement registrations also provide the original artist with the presumption of copyright ownership in court. This means that rather than having to prove that you ARE the owner of a work that IS protected by copyright law, the infringer will have to prove that you are NOT the owner of the work or that the work is NOT protected by copyright law. Without fully discussing the value of shifting an evidentiary presumption in your favor, this will save you a lot of money and make your life [or your attorney's life] much easier.

Statutory Damages and Attorney's fees: What's the deal with those?

Under U.S. Copyright law, only works that were registered before infringement or within 3 months of publication are eligible for statutory damages or attorneys' fees in copyright infringement cases.

The court may order anyone liable for civil copyright infringement of a pre-registered work to pay either actual damages or statutory damages of not less than $750 and not more than $30,000 per infringed work. Actual damages in a copyright infringement case could include turning over profits made through infringement or compensating for any lost revenue due to infringement. But for creators who cannot prove the exact extent to which they have been harmed or exploited, as is the case for many small, new, and independent creators, statutory damages allow for recovery all the same.

For some context, lets say you're an independent content creator on a popular video platform with 100 unique posts, and you notice that a large, homogenizing "talent network" has literally reuploaded all of your videos to their channel under their brand, changing nothing but to add a watermark on top of your content. If you've registered those works with the Copyright Office in advance, you could be looking at a maximum payout of three million dollars ($3,000,000) and a minimum payout of seventy-five thousand dollars ($75,000) based on statutory damages alone.

No registration before infringement means no statutory damages when your work is infringed. You're limited to recovering what you can prove you lost or what you can prove they gained. Those numbers are much harder to prove, especially in the age of social media and digital content.

How do I register my work with the copyright office?

To begin registering your work, log in to the Electronic Copyright Office (eCO) Registration System and follow the provided instructions. The process can be somewhat involved, so I always advise that clients reach an agreement with an intellectual property attorney who will provide registration, enforcement, and maintenance services to protect their copyright interests.

Additional resources provided by the author

Robert Nichols is an intellectual property attorney who provides copyright registration, enforcement, and maintenance services to creative clients around the country. To schedule a free consultation with Robert, please send a brief email to bobby@rnicholslaw.com or check out our website: www.RNicholsLaw.com

• Robert Nichols Law PLC

• CIVIL AND CRIMINAL PENALTIES FOR VIOLATION OF FEDERAL COPYRIGHT LAWS

• Why Register When Protection Is Automatic

Registering your trademarks can be slow and expensive, but failing to protect your logo and business name could cost even more time and money.

In this article, I'll explain why I advise my clients to file trademark applications as early as possible and why you should apply for trademark protection.

Set yourself apart from the competition.

According to the United States Patent and Trademark Office (the USPTO), "A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services." And, importantly, "It’s how customers recognize you in the marketplace and distinguish you from your competitors."

The process of creating and registering a trademark requires business owners and entrepreneurs to innovate and invent uniquely identifiable and easily distinguishable logos, names, and DBA's. Nothing less will make the cut.

Strong trademarks are "inherently distinctive." They quickly and clearly identify you or your business as the source of your goods or services. On the other hand, weak trademarks are descriptive or generic, like straightforward explanations of the services or goods on offer. These weak marks are often not registrable and always much harder to protect against competitors. Basically, strong trademarks are better protected than weak trademarks (if the weak trademarks are protected at all).

Building a strong trademark takes effort and research, but it can save your business a lot of time and money. Using a weak trademark may seem easy, but that means everyone is doing it. Standing out in a crowded industry means being unique, and protecting yourself in the free market means being proactive about your interests.

Think about it like this: Most people wouldn't want some one else selling or buying stuff under their name, and most people would use existing laws to protect themselves from identify theft, intentional or otherwise.

Why shouldn't that same thinking apply to your business?

Prepare your business for growth.

Technically, as soon as you begin using a trademark to identify your goods or services in commerce (i.e. fulfilling product orders, working on client projects, offering goods or services for sale, etc.), you own an interest in that trademark. But without filing for trademark protection with the state or (more often) the federal government, your rights will unenforceable outside the geographical area that you and your business are physically located in.

State-level registrations only offer protection against infringement within the geographical boundaries of the State itself. This is better than the local restrictions of failing to file entirely, but it still allows "out of state" infringers to avoid consequence for using your original trademarks.

A key benefit to federal registration is federal protection. State registrations cannot prevent use of a trademark outside of the State, but federal registrations protect your trademarks throughout the entire country.

This is particularly important in the internet age. Small businesses that would have operated at the state or local level 20 or 30 years ago are now reaching nationwide audiences thanks to their online presence. The effect of this development is that failing to register a trademark or only registering at the State level will not properly protect the modern entrepreneur or tech-savvy business owner.

As the USPTO has stated, "You’re not required to register your trademark... [but] a registered trademark provides broader rights and protections than an unregistered one."

I don't know where to start. What should I do?

The best advice is to hire an attorney with experience filing trademark applications and maintaining trademark registrations. They'll have the knowledge and understanding to address your specific situation and give specific advice.

Alternatively, the USPTO's online trademark filing software is publicly available. There are no laws against applying for trademark registration without hiring an attorney. Both individuals and entities are able to apply for and maintain their own trademark registrations online through MyUSPTO. You must have a uspto.gov account to access MyUSPTO. If you don’t have an account, you can create one for free.

It is also possible and legal for individuals and entities to perform trademark clearance research by using the USPTO's online trademark database, known as The Trademark Electronic Search System (aka TESS). TESS contains the records of all active and inactive trademark registrations and applications. Anyone can search this database for any applied-for or registered trademark, regardless of whether they are an attorney.

That said, the process can be very complicated and lengthy. Often, the USPTO will not immediately accept or reject an application on a permanent basis, but issue an Office Action explaining the reasons why their Trademark Examiners believe your mark should not receive protection and offer an opportunity to respond. These responses can range from a single page to hundreds of pages containing hundreds of exhibits and involve complex, nuanced legal concepts.

For these reasons, I always advise that non-lawyers hire an intellectual property attorney to manage their trademark applications, registrations, and maintenance.

I haven't sold anything but I have a logo or business name. Can I register my trademark?

Yes! Sort of.

Entities that have chosen a logo or business name that they intend to use in commerce but are not yet offering their goods or services for sale can file an intent-to-use ("ITU") application. This gives you potential priority over other users of the same or confusingly similar trademarks, even before you make a single sale or begin a single job.

I'm still not convinced. Do you have any insightful and personal anecdotes to share on the subject?

In 2017, after spending several years and millions of dollars building businesses in multiple locations and developing expensive branding, San Francisco cannabis company Harvest on Geary, Inc. (“California Harvest”), was sued for trademark infringement by an older, more established cannabis cultivation and retail company known as Harvest Dispensaries Cultivation & Production Facilities, LLC (or "Arizona Harvest").

The case was cut and dry. California Harvest's CEO had nearly copied Arizona Harvest's entire brand, down to the logo. The court disagreed with his arguments and disregarded his state trademark registrations in favor of Arizona Harvest's federal registrations, which superseded despite federal laws against the sale of marijuana.

I was working for Harvest on Geary as a "budtender" when the company "decided" to entirely redesign their name, logo, and branding, at great cost. This expensive change and the subsequent adjustments to staffing policies and oversight of employees was jarring, both economically and logistically. Ultimately, I, along with many of my former co-workers, left the company soon after.

Intellectual Property text books are littered with tragically avoidable stories like that. Had California Harvest set themself apart from their competition and prepared for growth by securing a federal trademark registration for a distinct name and logo, they would have saved tons of money in branding and retroactive registration costs.

Creating an original trademark and applying for registration may seem daunting at first, but I promise that it's not nearly as intimidating as an unexpected Cease and Desist letter. And it's much cheaper than changing your entire brand because of a lawsuit.

Additional resources provided by the author

Robert Nichols is an intellectual property attorney with years of experience filing and maintaining trademark registrations for clients of all sizes. For more information on the author of this article and other writings by Robert Nichols, please visit our website: www.RNicholsLaw.com

• What is a trademark? | USPTO

• Strong Trademarks | USPTO

• Trademark applications – intent-to-use (ITU) basis | USPTO

• Online trademark tools | USPTO

• The Battle Over the HARVEST Trademark for Cannabis Retail

• Robert Nichols Law PLC - website

A new statement of policy published on March 16, 2023 by the U.S. Copyright Office "clarifies its practices for examining and registering works that contain material generated [by] artificial intelligence."

In this article, I'll explain what the policy means for artists and AI art technology users.

Why isn't AI-generated art protected by U.S. copyright law?

AI-generated art is not protected under current United States Copyright law because copyright protections are reserved exclusively for human authors, and AI-generated art is not considered a work of human authorship.

The U.S. Constitution and the Copyright Act provide legal protections and exclusive rights to the lawful owners of “original works of authorship” that are fixed in tangible mediums of expression. While that description may seem vague, it is not unlimited. One such limitation, for example, is that copyright protections are exclusively available to works created by human authors.

The Federal Courts have clearly stated that copyright law is limited to “original intellectual conceptions of the author" and that "authorship is entirely a human endeavor." Under this longstanding precedent, registration must be refused or (in some cases) revoked if the Copyright Office determines that a human being did not create the work in question.

A particularly famous example of this limitation in action is the 9th Circuit case Naruto v. Slater, No. 16-15469 (9th Cir. 2018), in which the self-described animal rights organization PETA sued a wildlife photographer and a publishing company on behalf of a Celebes crested macaque that had taken a picture of itself while in possession of the photographer's camera. The photographer then worked with the publisher to release a book featuring the monkey's selfie.

In 2015, PETA filed suit against the photographer and publisher, requesting that the court assign the copyright to the monkey and appoint PETA to administer profits derived from the commercial use of the selfie. In dismissing the case, the court ruled that a monkey cannot own copyright under US law, partially because the relevant language of the Constitution and the Copyright Act "impl[ies] humanity and necessarily exclude[s] animals that do not marry and do not have heirs entitled to property by law."

Another relevant statement made by the court in that case involves standing to sue for non-human entities. While explaining why a monkey lacks statutory standing under the Copyright Act, the court stated that "if an Act of Congress plainly states that [non-human entities] have statutory standing, then [non-human entities] have statutory standing. If the statute does not so plainly state, then [non-human entities] do not have statutory standing." Under this logic, Artificial Intelligence technologies lack standing under the Copyright Act, as it does not expressly authorize such non-human entities to file copyright infringement suits.

Why isn't AI art original?

Although AI-generated art may seem original, without post-generation human intervention, AI art lacks the spark of human creativity required for "originality" under U.S. Copyright law.

For context: Generative AI refers to a category of artificial intelligence program that utilizes machine learning algorithms to automatically generate images, sounds, text and other data based on a large dataset of preexisting works in a given artistic medium of expression. To my knowledge, as of this writing, all AI Art technologies utilize Generative AI.

The process used in generative AI is based on learning technology called "generative adversarial networks" (GANs). GANs consist of two neural networks called a generator and a discriminator. The generator creates new image, text, audio, or other works based on the set of preexisting works that it learns from. The discriminator judges the generated works and critiques the generator. The generator then uses this feedback to improve its works until it generates something intended to be indistinguishable from within the preexisting set of works. Cooperation between generator and discriminator empowers generative AI to generate seemingly "original" works.

However, such works only seem original.

Developing an Artificial Intelligence program that has the capacity to "learn" by replicating thousands or millions of pre-existing works and generating "art" based on an automated response to a human prompt does not imbue each of the program's outputs with human creativity. In the same way, training an elephant to paint murals or providing a monkey with the tools and opportunity to take a selfie does not automatically imbue the animal's work with the human creativity required for "originality."

Is it even possible to copyright AI-generated art by itself?

Because AI art is not original, without post-generation creative input by a human creator, works that are generated by the use of AI technology are not eligible for the protections of copyright registration.

This policy is consistent with many decades of federal court decisions, which, again, uniformly agree that "authorship is entirely a human endeavor."

Barring future legislation, that much is cut and dry.

In order to register AI-generated art with the Copyright Office, a human must modify the work after it has been generated. Unfortunately, even then, the modified work will only be protectable to the extent that it includes human contributions.

Implied in this new policy is the classification of artificial intelligence technologies as entities rather than tools. This could mean that AI art can be protected by copyright registration in the same way and to the same, limited extent that new works which include portions of works in the public domain can be protected by copyright registration. However, this distinction has not been directly litigated, nor would its resolution likely result in any significant changes to the effects of this policy on authors and users of Generative Artificial Intelligence technology.

What is next for AI generated art and copyright law?

Before the publication of this new policy statement, some wondered whether the Copyright Office would classify art "created" by the use of artificial intelligence technology as originating from the creative efforts of the human who used the technology or as originating from the technology itself. A policy statement consistent with the former position would have empowered users of generative AI technology to register their works with the Copyright Office. A policy statement consistent with the latter position would have reinforced preexisting copyright protections that exist in the original works of human authorship used to train generative AI technology.

Now that the Copyright Office has clarified their stance on the issue, AI art technology companies and users of AI art may be pressed to show that their works do not infringe upon copyrighted works that AI programmers use to "train" their artificial intelligence technologies. Several AI companies have been sued for copyright infringement by artists, both in the United States and abroad. The ultimate outcome of these cases is still up in the air, but could result in a wave of infringement litigation within the generative AI industry.

There are ways to utilize otherwise infringing materials in a new work (think fair use, licensing agreements, etc.), and, technically, those options have not been closed off to individuals or entities who wish to use AI generated art in commercial products. However, without the ability to claim authorship over a generated work after contributing nothing but a text prompt, AI art technology users will be forced to rely on more traditional methods of proving non-infringement.

Having said that, it does not seem that a Fair Use argument would benefit users of AI art technology who wish to sell AI-generated art for profit or include AI-generated art in their commercially available works. While the collection of the dataset used to train the generative AI may be considered a transformative use of the works that comprise the dataset, the AI's outputs would compete as a market substitute for the works in the dataset and would likely be unable to succeed on a fair use claim.

One significant question that has not been resolved is whether AI-generated art falls within the public domain. If so, copyright registration of AI-generated output would be impossible, but anyone would, in the abstract, be permitted to use any AI-generated work of art in their own original works. If not, each artist with at least one work included in a generative AI's dataset could theoretically assert a claim of copyright infringement against every one of that generative AI's outputs.

What if I'm an artist and AI is using my work to generate new images. Is that legal? What can I do?

Reproducing another's copyright protected work without permission is infringement. Without proper licensing or the affirmative defense of Fair Use, which likely does not apply to AI generated art, such infringement is likely unlawful. If infringement is proven, a court could elect to shut down the infringer's commercial use of the infringing work[s] and require that the infringer compensate your losses, pay you any profits they received, pay your attorney fees, and pay statutory damages for each instance of infringement.

If you are an artist, author, or creative and you believe that generative AI is using your art to create new works without explicit permission or that somebody is profiting from AI-generated works "created" by a program that learned from your work, you may have a valid copyright infringement claim. Hiring an intellectual property attorney with experience in copyright and trademark enforcement, licensing, registration, and maintenance will help you protect your rights and interests.

Additional resources provided by the author

Robert Nichols is an intellectual property attorney with experience in copyright and trademark enforcement, licensing, registration, and maintenance. Referenced Cases:

- Naruto v. Slater, No. 16-15469 (9th Cir. 2018)

- Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011)

- Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004)

• FEDERAL REGISTER - Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence

• US Copyright Office Correspondence ID: 1-5GB561K Re: Zarya of the Dawn (Registration # VAu001480196)

• US Copyright Office Correspondence ID 1-3ZPC6C3; SR # 1-7100387071 Re: Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise

• You can’t copyright your crap AI art, says America

• Artificial Intelligence Art Is Certainly Fair Use! Umm – Not So Fast

• The Fine Line of Fair Use: AI and Copyright Concerns

• “A Mural Painted by an Elephant,” and Other Things That Can’t Be Copyrighted

• COPYRIGHT OFFICE ISSUES OPINION LETTER ON COPYRIGHT IN AI-GENERATED IMAGES

• Copyright Office Launches New Artificial Intelligence Initiative

• Harvard Business Review - Generative AI Has an Intellectual Property Problem

Copyright law exists to protect exclusive rights in original works of authorship, like photos, songs, and writings that modern artists post on social media. In this guide, I'll discuss legal protections for the visual, motion picture, audio, and written content that millions of users upload daily.

1. Do artists, authors, and content producers who post on social media need copyright protections?

Copyright law provides the artist (or "author") of an original work with valuable and exclusive rights, including the right to copy, distribute, and perform the work during the author's life and for 70 years after. The protection of these exclusive rights is intended, according to the U.S. Constitution, “to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Under U.S. copyright law, copyright owners receive the exclusive rights to reproduce a work, prepare derivative works based on the original work, distribute copies to the public, perform the work publicly, and display the work publicly. Limitations on exclusive rights enjoyed by copyright owners are codified in Sections 107 through 122 of chapter 1 of the U.S. Copyright Act. Under U.S. copyright law, an author's interest in an original work springs into existence when the work is fixed in a tangible medium of expression. However, you will still need to register your work with the copyright office to enforce those rights in court. Owning the exclusive rights over a particular work can be valuable, but not if the court can't or won't acknowledge it.

Authors who post original content on social media can often be considered to have published their works by doing so, just the same as a musician who performs an original song on the radio or an artist who paints murals in public. Internet-based content producers are just as susceptible to the infringement and violation of their exclusive rights as any other artist or performer.

2. Can I protect my photos and my visual art on instagram, twitter, facebook, and other sites?

U.S. copyright law protects a wide variety of photographic and visual art works, including pictures taken by a camera and captured digitally or via another visual medium, as well as illustrations, charts and more.

A work of visual art, such as a photograph, is protected by copyright law if it contains a minimal amount of creativity from the author and is fixed in a tangible medium, such as paper, canvas, or a digital medium. Mere ideas are not considered to be tangible for the purposes of copyright law.

Posting your photographs or works of visual art on a social media platform like facebook, instagram, or twitter does not take away your rights under copyright law. It does generally give the platform a license to use your content for at least as long as the platform hosts your content, but that doesn't mean you no longer own exclusive rights in your work. You can still perform, reproduce, or display your work in any form or for any price you wish, and you can still register your work with the copyright office.

3. Can I protect my videos on youtube, tiktok, instagram, and other social media sites?

The Copyright Act defines “motion pictures” as “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” The Copyright Act also defines “audiovisual works” as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” (17 U.S.C. § 101)

Both motion picture works and audiovisual works are protectable under copyright law if they contain a minimal amount of creativity from the author and are fixed in a tangible medium of expression, such as film or a digital medium. Luckily for content creators, uploading content to a social media platform usually requires that you previously fixed your work in a tangible medium of expression and, additionally, could be considered to fix the work in a tangible medium of expression via the platform's automated reproduction of the work as a viewable, shareable and downloadable file during the "upload" process.

To register motion pictures or other works of audiovisual art with the copyright office, one would file Form VA with the U.S. copyright office or on the U.S. copyright office website.

4. Can I protect my facebook updates, blog posts, tweets, and tweet threads?

Text posts on facebook, twitter, and other internet blogs or social media sites are protected under copyright law if the expression contained in the text post possesses a minimal amount of original creativity from the author and the text post contains more than a mere name, facts about reality, a single word, or a short phrase, as these expressions are expressly not covered by copyright law.

Individual text posts that meet these requirements are protected under copyright law and registered with the copyright office as literary works by filing Form TX copyright office website. On the other hand, if you want to collectively protect a specific tweet thread, a series of facebook updates, or your backlog of blog posts, you could prepare and submit a Group Registration for Short Online Literary Works (Form GRTX). This option still requires that each individual post be protectable under copyright law and requires some fairly tedious work, but it also allows copyright owners to save some money on multiple filings.

Posting your writings or literary works on a blog or social media platform like facebook or twitter does not take away your rights under copyright law. It does generally give the blog or platform a license to use your content for at least long as the blog or platform hosts your content, but that doesn't mean you no longer own exclusive rights in your work. You can still perform, reproduce, or display your work, and you can still register your work with the copyright office.

5. Can I protect my music on youtube, facebook, soundcloud, and other platforms?

When a musician creates an original recording of an original song to post online or on social media, they have created two copyrightable works: first, a musical composition and, second, a sound recording.

According to the copyright office "A registration for a musical composition covers the music and lyrics, if any, embodied in that composition, but it does not cover a recorded performance of that composition." The recorded performance of that composition is covered by a sound recording registration.

Musical compositions are protected by copyright law if they contain a minimal amount of creativity from the author and are fixed in a tangible medium of expression, such as on paper or in a digital document. Sound recordings are protected by copyright law if they contain a minimal amount of creativity from the author and are fixed in a tangible medium of expression, such as an album, a compact disk, or a digital file.

Posting your sound recordings and musical compositions on a social media platform like youtube, facebook, or soundcloud does not take away your rights under copyright law. It does generally give the platform a license to use your content for at least long as the platform hosts your content, but that doesn't mean you no longer own exclusive rights in your work. You can still perform or reproduce your work in any form or for any price you wish, and you can still register your work with the copyright office.

6. How can a platform's terms of service can impact my rights under copyright law?

Please be aware that all well-known social media platforms include language in their upload agreements or terms of service that permit other users of the platform to reproduce and recreate any works that you upload to the internet via the platform.

Youtube has famously standardized "Creative Commons licensing" for users who do not opt out prior to uploading content to the site. Creative Commons licensing does require that individuals who reproduce or use works covered by a Creative Commons license clearly indicate to their audience that their rendition is not the original work and has been changed from the original work, but it still permits the royalty-free use of original works by individuals other than the copyright owner, in perpetuity.

Please follow my page or visit my website (www.RNicholsLaw.com) for a future article on Creative Commons licensing.

7. Copyright Claims and fair use.

Please be aware that every social media platform has their own rules around copyright infringement, account strikes, copyright takedowns, and counter-monetization of allegedly infringing works. Generally, these rules are strictly enforced to protect shareholder investments. Often, this leads to issues for content creators who cannot typically afford an attorney with experience fighting copyright takedowns and a thorough understanding of the Digital Millenia Copyright Act.

YouTube's family of social media platforms in particular leans heavily in favor of protecting the interests of multinational conglomerates and the large-scale content creators who they sponsor. Their terms of service and publicly available information on their copyright claim enforcement processes provide very little clear information on preventing or responding to fraudulent copyright claims, as distinguished from automated Content ID claims.

YouTube claims to enforce a "zero-tolerance policy for claimants [that YouTube] deem[s] abusive" but also states that they "can’t comment on specific... cases of abuse and misuse in [their] copyright takedown processes... or [on those] processes." YouTube also claims that, in order to prevent fraudulent copyright claims, they "ask rightsholders to consider the applicability of copyright exceptions before they submit copyright removal requests" and request additional information from claimants who YouTube decides have submitted insufficient claims.

The US Copyright Office Fair Use Index is an ongoing project dedicated to making the concepts and theories of fair use more accessible to the content creating community. The copyright office states that "The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts."

There are effective ways to counter or otherwise address fraudulent copyright claims, but the burden of proving non-infringement or fair use generally falls on the content creator, not the claimant. Accordingly, the best course of action when faced with a fraudulent copyright claim is to hire a copyright attorney. Please follow my page or visit my website (www.RNicholsLaw.com) for a future article on YouTube Copyright Claims and Content ID takedowns.

8. "Publishing" Considerations.

The US Copyright Office classifies a work as "published" when copies of the work "are distributed to the public by sale or other transfer of ownership if the copyright owner authorizes the end user to retain copies of the work." This implies that posting a work on a social media platform generally will constitute publication for the purposes of copyright law, at least in part because posting to a social media platform typically requires the poster to grant the platform owner perpetual licenses to "retain copies of the work" such that it can be displayed on the social media platform and re-used by the platform owner either through direct agreement or via the social media platform's terms of service.

The Copyright Act (17 U.S.C. Section 101) states that “Publication” is "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

Technically, publication is not a requirement for receiving copyright protection, but it is often required either during or after registration with the copyright office, as it is the best manner for determining whether an allegedly original work pre-dates an allegedly infringing work.

The U.S. Copyright office stated in Circular 66 that when "a copyright owner [has] expressly or implicitly authorized users to make retainable copies of a work by downloading, printing, or other means[, then the] work [can] be considered published."

Additionally, Circular 66 states that "if the website [where the work is posted] assists the end user in some manner in downloading, reproducing, or retransmitting the content of the site, there may be an implied license to distribute copies of the work, in which case the work would be considered published."