As a freelance writer,is your business. Your works are protected by copyright and it is that protection that enables you to sell your work, prevent unauthorized use and generally control how your creations are used.
However, many freelance writers, much like the rest of the Web, either doesn’t understand copyright law or has serious misconceptions about it. But given how important it is to our profession, it makes sense to sit down and work to really understand what copyright law is about, at least some of the key points, and try to make sense of an admittedly confusing code.
With that in mind, here is a quick breakdown of seven key copyright facts that you need to know. Bear in mind that this is barely scratching the surface of the law and a lot of the nuance of these facts as well as many other important pieces of information will be missing.
Still, it’s a good place to start and, hopefully, will help at least some understand copyright law a little bit better.
1. Copyright Begins on Creation
To qualify for copyright protection the only requirements are that an item be an original work that is “fixed in any tangible medium of expression.” In short, once you’ve hit save on your file, uploaded it to a server, put a doodle down on a napkin or otherwise fixed your idea into some tangible medium, it is copyright protected.
There is no registration requirement, no need to mark it with a symbol or even to indicate that it is copyright protected at all. If you created, it simply is protected and you hold the copyright in it.
2. Copyright Doesn’t Protect Ideas, Titles, Etc.
The law says quite clearly that copyright does not apply to any “idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” It also doesn’t apply to works that are too short, such as titles, names, etc. and items without a requisite level of creativity, such as lines on notebook paper or even the phone book.
Some things that don’t qualify for copyright protection may qualify for other kinds of protection, such as business names qualifying for trademark protection and inventions qualifying for patents.
3. Copyright May Be Instant, But Registration Has Benefits
Though you have copyright protection in a work the instant you create it, you might not be able to effectively enforce it. Timely registration of your copyrighted works is crucial to have your maximum protection under the law.
Without registering your works you can not sue in a Federal court and without timely registration you will be ineligible for statutory damages or attorney’s fees and are limited to actual damages (the greater of what they gained or you lost). Without these awards available, you will be unlikely to pursue a copyright infringement case as the costs of suing would be far higher than any potential award.
If you think suing might be a tactic to explore, you need to register your works in a timely manner to ensure that option is available.
4. Copyright is a Set of Rights
Though copyright does give one the right to copy, it also gives a slew of other, related rights including the right to prepare derivative works, distribute copies of a work, publicly display the work and perform the work. Anyone who infringes on these rights without permission is infringing your copyright.
This is also why merely changing a few words or recoloring an image does not keep the use from being infringing as such uses are considered derivative works of the original.
5. Your Copyright Will (Almost Certainly) Outlive You
The current term for a copyrighted work (meaning one that is created today) is either the life of the work plus seventy years or, in the case of work for hire where the work is owned by a corporation, 95 years.
This means that any work you hold the copyright in will, barring some retroactive change in the law, outlive you and likely your children. Even if it is a work for hire, the odds of you seeing the copyright in any work you created expire is very slim.
6. Work For Hire Isn’t Simple
Speaking of work for hire, the fact you were paid to create a work does not mean you surrender the copyright in it. Work for hire is an element of copyright law that says an employee, when creating works as part of his employment, surrenders the copyright of those works to his employer, who owns them.
However, that doesn’t apply to freelance cases, only to traditional employees. Freelance work can be a work for hire but only if there is a contract signed indicating as such prior to the work and is within one of the nine following categories:
(1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas
Since most freelance writing doesn’t fit neatly into any of the categories, it means that work for hire, depending on the specifics of the case, may not be eligible for such status.
That being said, a freelance writing contract can assign so many rights to the purchaser that it has the effect of being a work for hire. You can also transfer copyright ownership as you would ownership of any physical good (though only with a written contract).
7. Fair Use is Not a Right
Finally, it is important to remember that fair use is a narrow exemption to the exclusive rights of the copyright holder to balance copyright protection with free speech. It is not a right and is instead a defense to a copyright infringement suit.
- The purpose and character of the use, including whether such use is of a 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 first and the fourth factors are given the greatest emphasis though all are analyzed when making a fair use determination. As you might predict fair use can be a very fluid thing that varies from court to court and depends heavily on the specifics of the case.
These seven facts are key to a basic understanding of copyright law, especially for a freelance writer, but, even then, we’ve barely scratched the surface of these areas and many, including work for hire, will likely be a post unto themselves later.
In short, copyright is a very deep, very confusing subject that could never be covered completely in a single book, let alone one post. However, we will be revisiting it a great deal over the coming weeks as it is absolutely crucial all freelance writers, as well as all content creators, have at least a working understanding of the law.
Simply put, if you don’t understand the law, you don’t understand your business and that can cost you dearly in many different ways.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.