Features and Occasionals, Shall We Dance

A Look at the Law: What Artists (and others) Should Know

By Barry Scholl

If you are in the habit or profession of creating original work to share with the public, you may have wondered what is—and isn’t—protectable under U.S. copyright law. Stated simply, copyright protects original creative works. It applies to literary works such as books and articles (including this column), artistic works such as paintings and sculpture, and musical works, including musical scores and recordings.

You might also be surprised that copyright applies to computer code, choreography and even architecture. However, it does not protect facts, ideas, systems, or methods of operation.

So let’s put our copyright knowledge to the test with the following questions, shall we?

Q: I have a great idea for a sci-fi opus about pixies on Mars that I don’t want my downstairs neighbor to steal before I can get it written down. Can I copyright it?

A: In a word, no. (If you answered yes, then go back and re-read the preceding paragraph, particularly the last sentence—copyright does not protect ideas.)

Q: I have a great original novel about pixies on Mars; unfortunately, it’s already been rejected by every commercial publisher in existence (hey, it’s ahead of its time!). Can I copyright it anyway?

A: Yes. So long as the work meets the other requirements set forth immediately below, there is no requirement that the work be commercially published—or published at all. This also goes for your musical composition or new dance steps.

Q: How do I obtain copyright?

A: Assuming that your original work of authorship is in “a tangible medium of expression” (i.e., it is written down or recorded), and also assuming that it contains a “modicum of originality,” you don’t need to do anything. A “common law” copyright vests automatically to your work, and you should provide copyright notice on your works in this way: “Copyright © 2013 [your name here]”). You may apply the copyright notice and use the “©” symbol without registering the copyright.

This can be used to establish a timeline. It can be used as a shield to fend off late comers, but doesn’t have much efficacy as a sword.

If you timely register your copyright in the U.S. Copy­right Office of the Library of Congress (within three months of the publication date), your copyright registration will give you additional protection from infringement, including a legal presumption of validity and the ability to recover statutory damages. Attorneys’ fees for infringement may also be available. Note that a certificate of registration is required before you can file suit in federal court for copyright infringement.

Q: If I choose to register a copyright, what do I do?

A: Submit a completed application form, a nonrefundable filing fee ($35 if you register online) and a copy or copies of the work to be registered to the U.S. Copyright Office. Processing time is currently about three to four months.

Q: What does having a registered copyright allow me to do that a common-law copyright doesn’t?

A: Under the 1976 Copyright Act, having a registered copyright gives you the exclusive right to do (and authorize others to do) the following:
• Reproduce and publish the work;
• Prepare derivative works based on the original
• Distribute copies or recordings of the work;
• Perform the original work publicly; and
• Display the original work publicly

Q: How do these rights really work?

A: For the purpose of illustration, let’s try applying the above rights to a basic fact pattern. Turning back to the questions above, if I finally publish my book about pixies on Mars, it becomes a bestseller, and then I discover, to my horror, that my downstairs neighbor is composing a rock opera based on my book and even includes the same characters, can I stop him from publishing it?

The answer is yes. As the copyright owner, you control the right to create derivative works based on your copyrighted novel, which would generally include sequels, spin-offs, and, yes, even rock operas.

Q: How long does registered copyright protection last?

A: Generally, for works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years, but there are exceptions.

Q: Where can I go for more information?

A: The U.S. Copyright Office provides a more detailed overview of basic copyright law, which you can find at www.copyright.gov.

Next month: Trademarks.

A former CATALYST associate editor, Barry Scholl is an attorney with Kruse Landa Maycock & Ricks, LLC, in Salt Lake City. The contents of this column are not legal advice. Consult with an attorney prior to embarking on any legal matter.

Editor’s note: In the 1990s, fresh out of college, Barry Scholl was a writer and editor here at CATALYST. He eventually left us and became a lawyer, cofounded the Entrada Institute (a nonprofit supporting artists, writers and scholars whose work focus on the Colorado Plateau) and in 1997 opened Robber’s Roost Bookstore in Torrey, Utah. We’re thrilled to have him back for this series of legal topics, ranging from intellectural property and elder law to estate planning and reviewing contracts, because he will make these important but often tedious topics digestible. In a creative, proactive life, legal issues occasionally emerge. Knowing some basic ins and outs can promote a modicum of comfort and ease.

This article was originally published on November 1, 2013.