Articles and Writings
A collection of published works by our attorneys. All rights reserved.
Copyrights and Copyright Law - Why to protect your art, writing, and other original creative works!
May 13, 2023
May 13, 2023
Registering sounds difficult and expensive. What's the point? I'm automatically protected... Right?
Statutory Damages and Attorney's fees: What's the deal with those?
How do I register my work with the copyright office?
Additional resources provided by the author
Why to Register Your Trademarks: the Benefits of Applying Early
May 6, 2023
May 6, 2023
Set yourself apart from the competition.
Prepare your business for growth.
I don't know where to start. What should I do?
I haven't sold anything but I have a logo or business name. Can I register my trademark?
I'm still not convinced. Do you have any insightful and personal anecdotes to share on the subject?
Additional resources provided by the author
I.P. Q&A: Artificial Intelligence and Copyright - Why doesn't U.S. copyright law protect AI Art?
APRIL 19, 2023
APRIL 19, 2023
Why isn't AI-generated art protected by U.S. copyright law?
Why isn't AI art original?
Is it even possible to copyright AI-generated art by itself?
What is next for AI generated art and copyright law?
What if I'm an artist and AI is using my work to generate new images. Is that legal? What can I do?
Additional resources provided by the author
I.P. Q&A: Copyright and Social Media - Protect Your Posts!
April 12, 2023
April 12, 2023
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."