When I tell people I’m an attorney for creatives, a common response is, “Oh, so you, like, work with artists or something?”
Yes, I work with a variety of artists, ranging from handmade crafters to photographers to graphic designers. My law firm serves a broader audience than this though.
When I say I work “for creatives,” I mean more than just artists in the traditional sense of the word. I work with online coaches. I work with massage therapists. I work with event planners. I work with virtual assistants.
If you’re a small business owner who consistently leans on the right side of your brain to provide value to your customers, then you’re a creative.
And if you’re a creative small business owner, then that creativity is a huge asset to your business.
How do you protect that creativity? Through an area of the law called intellectual property. It’s a pretty broad area of the law, and it covers topics like copyrights, trademarks, patents, and trade secrets.
Out of all these things that fall under the umbrella of intellectual property law, copyrights are definitely the most important concept for creatives to understand. For most of you, copyright laws are what protect the majority of your creative works.
In my Facebook group, Friends of Indie Law, a good chunk of the questions that are raised have to do with copyrights. It can be a confusing area of the law. But it’s important that you understand how this works. With this blog post, the goal is to provide a comprehensive overview of everything you need to know about copyrights. I know I can’t address every possible thing in one post, but my responses to these questions have cleared up a vast majority of the questions I’ve been asked about copyrights.
Here we go!
1. What are copyrights?
Copyrights protect original artistic or literary expressions. Don’t get this confused with trademarks, which protect things that have to do with branding, like business names, logos, slogans, and product lines. Sometimes the line between the two can get blurry, so don’t hesitate to reach out to me or another attorney if you’d like some clarification.
2. What can and can’t be copyrighted?
Here’s what you CAN copyright:
- Literary works: fiction and non-fiction books, poems, articles, versions of the Bible, coaching programs materials, and periodicals
- Performing arts: music, song lyrics, audio recordings, scripts and speeches, and theatrical plays
- Visual arts: artwork, illustrations, jewelry, sculptures, and architecture
- Digital content: computer programs, databases, websites, and blogs
- Motion pictures: movies, TV shows, video games, animations, and videos in general
- Photographs: news-related photos, wedding-related photos, family photos, and even selfies
Here are examples of what you CAN’T copyright:
- You can’t copyright the name of your business, product, or service. That’s trademark-y stuff that has to do with branding.
- You can’t copyright listings of ingredients, such as in recipes, labels, or formulas. You can copyright text and images that accompany ingredients—like recipe directions in a book or blog post—but not the ingredients themselves.
- You can’t copyright phrases or sayings. Copyright laws protect long-form literary works. Now, yes, that does mean that lines from the larger literary work are technically copyrighted. Whether or not you can use those lines from a larger work falls into a gray area of the law called “fair use,” and I don’t recommend hanging out there. I need to be clear here: YOU CANNOT COPYRIGHT JUST PHRASES OR SAYINGS. And, unless that phrase or saying is being used for branding purposes (like in the form of a business name or slogan), then our trademark laws aren’t meant to protect that either.
- You can’t copyright “useful articles.” What do I mean here? This is kind of complicated, but it’s important. According to US copyright laws, you can’t copyright something if it’s a “useful article,” meaning something that is designed to serve a useful purpose. Example time. A shirt serves the useful purpose of keeping you warm. A mug serves the useful purpose of helping you drink something. So you can’t copyright a shirt or a mug itself. BUT! You can copyright a design that you put on a shirt or mug. See the difference? Also, note that jewelry can be copyrighted, since it serves more of a decorative purpose than a useful one.
3. Should I put a Disney character on one of my items?
Nope. Just don’t do it. Please.
Like Liam Neeson, Disney has a particular set of skills. Skills they have acquired over a very long career. Skills that make them a nightmare for people like you. If you let it go now, that’ll be the end of it. Disney will not look for you, they will not pursue you. But if you don’t, Disney will look for you. Disney will (probably) find you, and they will kill you(r business).
4. Something like this question:
I’ve heard about legal concepts—like fair use, derivative works, the public domain, licenses, and the first sale doctrine—that relate to copyright law. I think one of these concepts will allow me to use another’s work without violating any copyrights. Am I right?
These are pretty complicated legal concepts, so I recommend being cautious here and talking with an attorney to make sure you’re being legally legit. Frankly, I’d also consult a business advisor to see if the direction you want to pursue would be a wise business decision and worth any potential risk.
5. Don’t I get automatic copyright protections as soon as I create the work?
Yes, but automatic copyright protections aren’t as great as they sound.
Here’s the deal. As soon as you create something that can be copyrighted, you automatically get copyright protections. You can start using that © symbol to show that you are claiming copyright protections.
But you can’t enforce automatic copyright protections. Unless you have registered your copyrighted works, you can’t file a lawsuit against an infringer. So, yeah, you could reach out and ask/demand that someone stops copying you. And that might work. But if they understand how copyrights work, they’ll call your bluff and keep doing what they’re doing.
I’m a huge proponent of registering your copyrighted works. If you register your work with the U.S. Copyright Office, you get some really nice perks. With registered copyright protections, you can get up to $150,000 from the violator, without having to provide evidence of how those violations damaged your business. You’ll also be entitled to attorney’s fees—which means that, if the violator has enough money to actually pay all this, you can easily find an attorney to represent you for free. (Note: my law firm doesn’t do copyright litigation, but I have some recommendations if you’re interested).
6. Okay, registering copyrights sounds pretty cool. Can I do this myself?
In lots of cases, yeah, this is totally something you can DIY!
The application process is pretty straightforward. First, you’ll have to create an account using the copyright office’s registration portal. You can create that account by visiting this page. Once that’s done, there’s an online form that guides you through the application process.
The filing fee for a copyright registration application is only $35-$55. This is significantly cheaper than the filing fee for a federal trademark applications ($225+).
All this being said, it can be confusing if it’s your first time. And depending on what you
‘d like to copyright, it can get complicated. You want to make sure that you can confidently submit the application. If you have any concerns or would like assistance, we’d be thrilled to help you through one of our flat-fee packages.
7. Can I apply for multiple copyright registrations with one application?
Sometimes. This is tricky, and it’s one of those instances where having an attorney to help you with the application would be worth it.
The general rule here is that, if your works are already published, then you can only apply for them to be registered one at a time. So yeah, that means paying a separate filing fee for each published work.
But if you have works that have not yet been published, those can be combined into one application. See, it pays off to plan ahead sometimes!
There’s an exception to this rule for photographers. You can apply for a collection of photos, whether they are published or not.
When you’re trying to register multiple works in one application, the application process gets a lot more complicated. Hiring an attorney to apply on your behalf is highly recommended here.
8. Agh! Someone is infringing on my copyrighted work! I didn’t register anything. What can I do?
The first thing you should do is make a record of the infringement. Use screenshots with date stamps to make sure you have evidence of their infringement.
Then, shoot them . . . an email. I’m sure you’re frustrated, but keep your cool. Assume that they didn’t have any bad intentions, explain to them that you own your copyrighted work, and tell them to remove and stop selling whatever it is that violates your copyrighted work.
There’s no “perfect” language to send them that will make them stop and do what you want. But I have learned that there are some things you should and shouldn’t say. If you’re going through this yourself right now, let’s rock a consultation call so we can come up with language that will fit your situation.
If that doesn’t work, then you can take things further, but be careful.
- If the violation is happening on a platform like Facebook, Instagram, YouTube, Etsy, or Shopify, then you can use that platform’s “DMCA takedown policy,” and the platform will remove the items. You can do this by sending an email, letter, or online form to the platform (just Google “DMCA” and the name of the platform). The accused infringer could file a “counter notice,” and that will likely result in the platform putting the items back up.
- If the violation is not happening on a platform, or if your attempt to use the DMCA policy was not successful, you can send a cease and desist letter to the infringer.
But here’s where those limitations of automatic copyright protections come in. Without registering your copyrighted work, you can’t really enforce your copyright protections, and the other side can call your bluff. You can rush to get the works registered, but states have different views about whether an “applied-for but not registered” work has enforceable copyright protections.
All this being said, let me take off my legal hat for a second. If this happens to you, I can only image how infuriating it is. They’re stealing something you worked really hard to create. Heck, maybe they copied and pasted your entire online store, and they’ve slashed their pricing. I get it, this sucks. But the silver lining here is that you have something that “the market” is finding value in. It’s been my experience that copycats don’t last long. If you can pivot your mindset and focus on how to reach your target market directly before they can compare what else is out there, then you’ve really minimized the amount that this has affected your business. I get it, that doesn’t really make you any less frustrated. But you owe it to yourself and your business to maintain a positive mindset, especially when the alternative is to jump into an emotionally draining lawsuit that will cost serious time and money with no guarantee that “justice will be served.”
9. Okay, I found another person infringing my work. But I’ve got a registered copyright this time. What do I do?
Same thing as above. Record the infringement. Send them an email playing “good cop.” But in that email, attach your registration certification. Let them know that, if they don’t take it down, they’ll owe you up to $150,000. Most of the time that works. If it doesn’t, usually a cease and desist letter drafted by an attorney and with a law firm letterhead will do the trick.
10. Should I be thinking harder about becoming an LLC due to copyright concerns?
Great question. Time for a quick story.
Last week, I talked with someone who works at a very large company. Because they’re so big, they have their own legal team, and they have the money to be very risk-averse.
A while back, the company decided to make a promotional video. The video included interviews from various people talking about the company. One guy who was interviewed had a tattoo on his arm that was visible.
After the video was edited, it was sent to the legal team. The legal team basically responded saying this:
“The video looks great. But we need to track down all of the people interviewed and make sure they’ve signed a release waiving any claims, including copyrights. And about that guy with the tattoo . . . yeah, we need to find that tattoo artist and get him to sign a release, too. Not only that, if the tattoo artist who drew the tattoo didn’t come up with that design, then we need the tattoo designer to also sign a release.”
I know, lawyers right!? They ended up just cropping out the tattoo.
Here’s what I’m getting at.
It’s easier than you might think to accidentally violate someone’s copyrights.
Creative works are all over the place. Like the tattoo example shows, there can even be complicated layers to copyrights. And as we’ve discussed, if it’s registered, violating a copyrighted work can get VERY EXPENSIVE. If your business doesn’t have limited liability protections, and if your business doesn’t have enough assets to pay for these violations, then you’re putting your personal assets (your house, your car, etc.) at risk.
The more your business grows, and the more creative energy you throw into your business, the more likely it is that you will be violating someone else’s copyrighted works, even with the best of intentions. So plan accordingly. If you’re thinking about forming an LLC, we can help.
Any other questions?
Feel free to ask them in my Facebook group, Friends of Indie Law. I won’t be able to apply the law to your specific situation (without you hiring me), but I can tell you what the law is. And if you’re confused about an area of copyright law, chances are that there are other confused members as well.