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Originality means that the work must be independently created by the author and possess some minimal degree of creativity. It doesn’t have to be novel or unique, but it must be the result of the author’s own intellectual effort. For example, a photograph you take with your camera is considered original because it reflects your creative choices, such as composition, lighting, and subject matter. Fixation requires that the work be captured in a tangible medium of expression that is sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for more than a transitory duration. This can include traditional media like paper or canvas, as well as digital formats such as digital photographs, illustrations, and graphics, videos in the form of recorded footage, animations, and digital films, and text-based media digital documents, such as e-books, and online articles. Of course, fixation of media also refers to physical objects like printed manuscripts and paintings.
Whenever someone creates and publishes an original work, it is their intellectual property (IP). However, other creative works may be produced that resemble another’s IP so closely that it can take away from another person’s ability to market or profit from their creations.
Unfortunately, there are also occurrences where others blatantly steal creative works and pass them off as their own. Whenever IP is in dispute, the rights to the work belong to the original creator, providing that they can prove the creation was theirs first. Copyright is important because it is the traditional means in which the ownership of intellectual property is determined. Whoever successfully files a copyright claim first retains ownership over the IP. Think about this like the Gold Rush in the Wild West. When miners found, or thought they might find gold on a piece of land, they would file a claim, declaring their right of ownership and sole ability to mine the property for precious metals. Whoever filed a claim for the land first had legal ownership of the mine. In that sense, a copyright is simply a way to show that a creator made something before anyone else did, and to ensure that they can forbid others from stealing their intellectual property or demand financial compensation from anyone profiting from their creations.
Claiming a copyright over a work is achieved by writing the copyright symbol © followed by the copyright owner’s name and the year the work is first published. When a copyright is registered, a copy of the work is placed on file with the Library of Congress and provided an official registration preserving the date, and location in which the content was produced. This is essentially a legally enforceable timestamp. Copyrights can be registered for both original and derivative works. An original work is a creation that is independently produced by an author and demonstrates a minimal degree of creativity. This means the work must come from the author without copying from other sources and must show some level of creative effort. Original works can include a wide range of creations such as literary pieces, music, visual art, and digital content. The key aspects are that the work is new and not derived from existing works. A derivative work is a creation that is based on or derived from one or more existing works. This can include translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations, or any other form in which a work may be recast, transformed, or adapted. The key aspect of a derivative work is that it incorporates significant elements of the original work but also adds new, original content that transforms it into a distinct creation. The copyright for a derivative work only covers the new material added by the author, not the original work itself.
EXAMPLE
You are fluent in Pawnee and you decide to write a translation of A Christmas Carol by Charles Dickens to expose others to indigenous languages. You write a translation that includes a foreword about the history of the Pawnee People and the origins and evolution of the Pawnee language, and you copyright the work. This qualifies as a derivative work, and you now own the right to the Pawnee translation of the classic novel and to the foreword written for the book. However, you do not hold the rights to Dicken’s original 1843 novel.To declare a copyright, start by ensuring the work is original and fixed in a tangible medium, such as a digital file or physical copy. Next, complete the copyright registration application, which can be done online through the U.S. Copyright Office and pay the required fee. Submit a copy of the work, either physically or digitally, depending on its nature. Once the application is processed and approved, a certificate of registration is provided, serving as official documentation of the copyright. Registration provides legal protection, a public record of the copyright, and is necessary to file a lawsuit for infringement. It also grants the owner exclusive rights to reproduce, distribute, perform, display, or license the work. Copyright infringement occurs when an individual or entity uses or reproduces copyrighted material without the permission of the copyright holder. This unauthorized use can include copying, distributing, performing, publicly displaying, or creating derivative works based on the original material. Copyright infringement violates the exclusive rights granted to the copyright owner, which are intended to protect their creative efforts and ensure they can control and benefit from their work.
Fair use is a legal doctrine that allows limited use of copyrighted material without obtaining permission from the copyright owner. This can include purposes such as criticism, comment, news reporting, teaching, scholarship, and research. The determination of fair use is based on four factors; purpose and character of the use, nature of the copyrighted work, amount and substantiality, and effect on the market.
Purpose and character of the use examines why and how material is being used. If the use adds new expression, meaning, or message to the original work, it is more likely to be considered fair use. This is known as transformative use, which includes commentary, criticism, or parody. Additionally, non-commercial uses, such as for education, research, or scholarship, are more likely to be considered fair use compared to commercial uses. Generally, uses for purposes like news reporting, teaching, scholarship, or research are favored under fair use. Essentially, the more the new work transforms the original and the less it is used for commercial gain, the more likely it is to be considered fair use.
The nature of the copyrighted work is another important factor in determining fair use under U.S. copyright law. This factor considers the type of work being used. Generally, factual works, such as biographies or news articles, are more likely to be considered fair use compared to highly creative works like novels, movies, or music. Additionally, published works are more likely to be subject to fair use than unpublished works, as the author of an unpublished work has the right to control the first public appearance of their expression. Essentially, the more factual and less creative the work, the more likely it is to be considered fair use.
The amount and substantiality factor in fair use analysis examines both the quantity and the significance of the portion of the copyrighted work that is used. This involves looking at how much of the original work is taken and whether that portion is central or essential to the entire work. Even if a small part is used, it can weigh against fair use if it represents the heart of the work. Conversely, using a larger portion might be more acceptable if it is not the most significant part. This factor helps determine whether the use is reasonable and necessary for the new purpose.
The effect on the market factor in fair use analysis examines how the use of copyrighted material impacts the market value of the original work. This includes considering whether the new use could serve as a substitute for the original, potentially reducing its sales or market demand. If the use negatively affects the market for the original work or its potential market, it is less likely to be considered fair use. Conversely, if the use has little to no impact on the market or even enhances it, it is more likely to be deemed fair use. This factor helps ensure that the rights of the copyright holder are not unfairly diminished by the new use.
EXAMPLE
A history class at a local high school is learning about mountain men and the role they played in the American West. The class watches the 1972 Robert Redford film, Jeremiah Johnson, over the course of four class periods, followed by a discussion session facilitated by the teacher. The screening of the film does not violate copyright law because it falls under the category of fair use. The film is being used as a teaching aid, the use is non-commercial, and the amount of use is too small to make any effect on the market, each one of these considerations protect the screening of the film from copyright infringement.Permissions refer to the consent given by the owner of a work to allow someone else to use it in a specific way. This can be informal and situational, often based on personal or contextual authority. For example, a photographer might give permission to a friend to use a photo in a personal project.
Licensing is a formal, documented agreement where the owner of the copyright grants specific rights to another party to use the intellectual property under defined conditions. This agreement outlines the scope of use, duration, fees, and other terms. The scope of use refers to the specific parameters and limitations under which a copyrighted work can be utilized by an individual or organization. It defines how, where, and for what purpose the work may be used, ensuring that the creator retains control over their intellectual property while allowing others to benefit from it within defined limits.
Copyleft is an unofficial term used for licensing options available to creators that allow the reuse of their work. Remix and reuse are concepts often associated with creative works, particularly in the context of digital media and open content. Open content refers to any creative work that is freely accessible, usable, editable, and distributable by anyone for any purpose, including commercial use.
Remix refers to the process of taking existing materials and altering them to create something new. This can involve combining elements from different sources, changing the original work’s structure, or adding new content. Remixing is common in music, where artists might sample parts of other songs, but it also applies to other media like videos, images, and text. The goal is to produce a new work that offers a fresh perspective or adds value to the original content.
Reuse involves using existing materials in their original form or with minimal changes. This can mean incorporating a piece of content into a new project without significant alteration. Reuse is often seen in educational and research contexts, where materials like articles, images, or data sets are used to support new work or analysis.
Both remix and reuse are facilitated by open licensing systems like Creative Commons, which allow creators to specify how their works can be used by others. These practices encourage creativity, collaboration, and the sharing of knowledge and resources.
Creative Commons (CC) is a nonprofit organization that provides a set of free, standardized licenses that creators can use to grant permission for others to use their work under specific conditions. These licenses help creators share their work more easily while retaining some control over how it is used.
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