Due to the increasing amount of people who think that once something, anything, is put online it is free to take, I thought I’d write up an article about what copyright really is and how it protects the artist, author, musician, ect. Please feel free to pass this article around to anyone who has a misunderstanding of copyright. The more we can educate people, the better.
From the U.S. Copyright PDF – “Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- reproduce the work in copies or phonorecords
- prepare derivative works based upon the work
- distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio visual works
- display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work
- perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission.
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.” – U.S. Copyright Office
Since the above mentions Fair Use, and I see that used as an excuse to use and share copyrighted content, let’s go over what Fair Use is.
“One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
The safest course is to get permission from the copyright owner before using copyrighted material.” – U.S. Copyright Office
So, Googling “fantasy” or “faeries” or “gothic” or anything else and saving all of the artwork one finds to their computer and then uploading the artwork onto their website does NOT fall under the Fair Use act. Taking the artwork and altering it any way (by changing the colors, adding names, ect.) also does NOT fall under the Fair Use act. Those things are NOT done for education or reporting purposes, therefore they fall under copyright infringement (read further for more information on what constitutes copyright infringement).
Now, what I’m doing here, quoting from the U.S. Copyright page, DOES fall under Fair Use, since I am doing it for education purposes. I am also providing links back to the original website so anyone can peruse it.
Now let’s talk about Public Domain and what works are copyrighted, because I frequently see comments or hear people say that the artist should just copyright their work if they don’t want it taken and/or shared. Or that all public work found online is free to use by anyone.
Again, from the U.S. Copyright PDF – “Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright.” – U.S. Copyright Office
Notice of copyright does not have to be issued, either, for the work to be considered copyrighted.
“The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works. Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989.
A work that was created (fixed in tangible form for the first time on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection.” – U.S. Copyright Office
So, for everyone who claims that just because one finds images, or music, or anything else they like online, that the work is not copyrighted or is public domain simply because it’s online and that it’s been shared by hundreds of people…that is NOT the case. As an artist, I do not have to do anything to copyright my artwork, as it’s already protected under Copyright Law the moment I create it. I don’t have to publish it, provide notice, or register it for it to be protected. And anything I have created after March 1, 1989 – UC Copyright – (which is everything I’ve created) is not put into public domain until 70 years after my death.
Moving on to Copyright Infringement
“Copyright is a bundle of exclusive rights. Section 106 of the copyright law provides the owner of copyright in a work the exclusive right:
- To reproduce the work in copies;
- To prepare derivative works based upon the work;
- To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly;
- To display the copyrighted work publicly;
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
Section 501 of the copyright law states that “anyone who violates any of the exclusive rights of the copyright owner …is an infringer of the copyright or right of the author.”
Generally, under the law, one who engages in any of these activities without obtaining the copyright owner’s permission may be liable for infringement.” – U.S. Copyright Office
Thus, if one does not seek me out as well as obtain my permission to display and/or alter my artwork anywhere publicly (including online – a gallery, a blog, a desktop wallpaper site, a Facebook page, ect.), then it is illegal to do so and is considered copyright infringement. This is the reason that such sites as Desktop Nexus and Facebook WILL remove the reported content immediately. They do not want to be sued by thousands of different artists, photographers, authors, ect. Contrary to what some may believe, it is the viewer’s responsibility to find the artist/author and get permission if they wish to share and/or alter the work. It is not the artist’s responsibility to seek out the person who wants to use and/or share the work.
I hope this article has been informative about what copyright laws are and how they apply. Please click any of the provided links for even more information. These laws protect me as an artist and they protect my artwork. If you want to use my artwork for something or wish to share it on your website, all you have to do is ask me, and then respect my final decision – as I own the copyright to every piece of artwork I create…from the moment I create it.