Imitation may be the sincerest form of flattery, but it’s a disaster to your bottom line. When a competitor takes your design or product and offers a cheaper knockoff, your sales will dry up quickly.

From the beginning, you need to know what copyright is; how you obtain your copyright; and how you can use the law to protect your work.

WHAT IS COPYRIGHT?

Copyright is a property right—a right of ownership. Copyright allows you to restrict other people from using your work.

That restriction can function in a variety of ways. First, you have the right to prevent other people from using your work directly. Second, you can prevent people from using derivatives of your work; in other words, making products or works of art too similar to your work—think: copies.

Note: Copyright applies to writing; most artwork and designs (think drawings, paintings, animation, videos, music—lyrics and recordings, etc.); and even most computer code. If you’ve invented the latest watch or the world’s best shovel, you’re going to need to look at patents instead (think machines, chemicals, and scientific processes).

HOW DO I OBTAIN A COPYRIGHT?

You probably already hold a copyright to your work—even if you didn’t know it. As soon as you create something, you hold a legally-enforceable copyright. By simply writing the above, I now hold a copyright in it. I can restrict you from using what I wrote.

Compared to patents: For those who want to patent their invention, that requires an application to publically disclose the patent—and a patent search prior to doing so.

Compared to trademarks: If you have a slogan, name, design, or expression that you want to own and protect, and prevent all others from using it, that’s the domain of trademarks. Examples of notable trademarks include the name “Nike,” the phrase “Just Do It,” and the famous swoosh symbol. To properly assert your rights in trademark, it is advisable to register with the USPTO (United States Patent and Trademark Office) to obtain full protection. 

GETTING A COPYRIGHT IS THAT SIMPLE?
 
Yes, but…

YOUR WORK MUST BE COPYRIGHTABLE

What you created must be something that can be copyrighted. As a streamlined explanation, that requires three things: that the work you created: (1) is fixed in a tangible medium (e.g. on paper, as an electronic file, on canvas); (2) is original (meaning it isn’t just copying something that already exists or is universally available—remember, we’re talking about creation, not duplication); and (3) involves some creativity.

Imagine a grocery list. You wrote it down--#1 check! You organized the list in a way that perhaps no one else ever has--#2 check! But, for #3, you just listed groceries. That isn’t creative.

However, if you wrote short, comedic blurbs about each item, #3—check! Or if you drew your grocery list as art, #3—check!

WHAT DOES A COPYRIGHT MEAN—or—what can I stop people from doing?

Assuming what you created is copyrightable, you now hold a copyright to your expression. You cannot copyright ideas.

“I should write a blog about copyright law.” That is just an idea, not an expression of the actual work.

“I should write and draw a comic strip that explains copyright law using a dragon named Steve.” Oddly specific, but still not an expression.

Why? These are just ideas. You cannot prevent other people from using mere ideas.

“I wrote a script for a comic strip that explains copyright law using a dragon named Steve.” Yes, you can hold a copyright to your expression—to the script, the artwork, the presentation. You hold that copyright as soon as you create it (put it down in pen and paper…or paint…or on your laptop at a coffee shop.).

If someone wants to post it on her or his website, distribute it to others, or put the artwork or comic strips on t-shirts, you can say “no.” If they do it anyway, you can tell them to take it down or you can file a lawsuit (including seeking damages) for the use of your work.

However, if people want to discuss your work—including the nature of your art, the plots in your stories, etc.—you cannot stop them from doing so. Those people are not using your specific expression.
  • Can a person re-print the text in your book? No.
  • Can a person write a book talking about the plot elements and characters in your book? Yes.
  • Can a person write a book that basically follows your same plot, with the same characters, and try to undersell you? Probably not; the expression has broader protection under copyright than that; a person cannot simply change a few words or twists in the story and take the value of the original work. However, keep in mind that many tropes exist in literature—and general tropes are not original. Most people will give the same response if I ask them for the name of the book series about a young boy that goes to wizard school—but J.K. Rowling certainly wasn’t the first, and won’t be the last, author to write a book about that.

 SO WHAT DOES THIS MEAN FOR ME?

Now that we’ve covered the general landscape of copyright law, let’s take a look at practical applications for creatives.

Use the copyright symbol (©) on your work, where possible.

Although you hold an immediate copyright in your work the moment you create it, that doesn’t inform the public clearly that they aren’t allowed to use your work as they please. If someone cuts and pastes my post here, you can ask the person to stop. But you’re unlikely to receive damages if the person wasn’t aware that you didn’t allow people to use my work.

So, make them aware. You can use a copyright symbol (as used for this articles: All rights reserved. © McCarthy Garber Law, LLC 2017). That tells the public, on no uncertain terms, that no one else can use your work unless you give permission for her or him to do so. If someone does use your work, not only can you tell that person to stop, but you can seek damages for the person using your work when you made it clear the person was not allowed to do so.

You can go further. If you wish, you can register your work for a copyright with the U.S. Copyright Office. This can convey several benefits: (i) if you need to litigate, it is strong evidence in court that you hold the copyright; (ii) it may make you eligible to receive additional damages and/or attorney’s fees; and (iii) it may lessen the burden of enforcing your copyright internationally.

It depends on what you’re doing with your work, and what you are willing to do to protect it, to decide what level of copyright protection is right for you.

Generally make it clear that your work is protected by copyright and reproduction is not permissible without permission.

When you propagate or sell your work, make it clear that your work is protected. For instance, if you are presenting your artwork on your website, make it clear on the website—not just with the work—that no one is authorized to reproduce your work without permission. If you are using another website, make sure to review the terms of use or other agreements with that website to assure your work receives protection from reproduction.

Generally, and particularly where part of your marketing is based upon having people repost or circulate your work through social media, consider making the copyright symbol and text an inextricable part of the work (like including the copyright symbol, followed by your name and date, as a part of the image file).

WORST CASE SCENARIO

The unfortunate reality is, for every dozen creatives out there, there is someone with just enough talent and lack of scruples to jump at the chance to make a quick buck off of someone else’s hard work and inspiration. Here’s a few tips on what happens, and what you should do, when things go south:

  • Keep records of everything—drawings, e-mails, posts, etc. If you ever have to file a lawsuit because someone else is using your copyrighted materials, you’ll want to be able to prove that you created those materials first.
  • Litigation is expensive. When a demand letter stops a violator in his or her tracks, you may be able to hire a lawyer for less than a grand. But when the violator disputes your claim (or ignores it), your next recourse is litigation—which can run you tens of thousands of dollars.
  • The violator may have little to no assets. A judgment for $100,000 is worthless if you can’t collect it from the losing party.
  • Litigation can be an expensive venture with a questionable victory. However, most legal claims can be brought years after the violation of your copyright. If the violator builds a successful business, career, etc. from pilfering your work, you may be able to wait to sue until there is money to actually recover. (Keep in mind, claims have statutes of limitations—which means, if you wait too long, you can lose your right to sue.)


Asa C. Garber
Mccarthy Garber Law
© McCarthy Garber Law, LLC 2017