What Exactly is a “Copyright”?
*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.
It is common to hear someone refer to something being “copyrighted”, but what exactly does that mean? Copyright is a type of intellectual property law that legally protects original works of authorship, both published and unpublished, that are fixed in a tangible medium of expression. The key here is “tangible”; copyrights can not protect ideas, facts, systems, or modes of operation, yet they can be used to protect the way these things are protected.
Forms of expression that may fall under the purview of a copyright include literary, artistic, musical, and dramatic works. These include books, poetry, works of prose, artwork that is affixed in tangible form (such as drawing, painting, sculpture, etc.), songs, movies, scripts, architecture, software programs, and more.
So now that you know what exactly falls under the purview of copyright protection, you may be wondering what the process of “getting’ this protection looks like. You might be surprised to find out that any original work you create is protected by copyright from the moment it is made and fixed in a tangible form; i.e., it cannot still be an idea, but must be able to be perceived either directly or through ‘the aid of a device or machine’.
Every original work, made with some minimum level of creativity, falls under copyright protection due to a clause in the Constitution in Article I Section 8- Patent and Copyright Clause. This clause gives Congress the ability to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.” This right to protection is also tied to the First Amendment. Your work is protected, in theory, as intellectual property, no matter the merit of the creation or even if you sell the physical work/product. However, being a protected right does not equate to always holding up in court without proof authenticating its origin.
Although you technically do not need to register your work with the Copyright Office for it to fall under protection, you should if you want to be able to effectively litigate someone for copyright infringement. By registering, you are placing the facts and timeline of your copyright on public record and can provide proof with the certificate of registration. Once your work is registered, you can be eligible for statutory damages, plus attorney fees, in cases of successful litigation. You should register your work within five years of its creation ideally, because if you do, it is considered prima facie evidence. This means that it holds up in court as “sufficient to establish a fact or raise a presumption unless otherwise disputed”. In other words, it is a very strong and effective tool for protecting your original creations from those who would replicate and market it.
Though the United States has its own copyright system, we have close economic and business relationships worldwide. Thus, in general most countries honor the copyrights of our citizens, and vice versa. Yet there are certainly exceptions to this.