Learn about the basics concepts of copyright; what is protected and when you can use someone else’s creation.
BY FOLDERPRINTERS WRITERS
December 14, 2023
As a leading manufacturer of custom presentation folders, we come across quite a number of projects that we find to be interesting pieces worth featuring on our blogs, website and printed marketing materials.
Since they go through and are all over our production facilities, we could just take pictures or recreated them. We never do that.
Before using any image of a client’s folder, we always approach them and ask for permission.
Aside from the fact that any feature could be a collaborative endeavor, the overarching concern is copyright compliance: the use of work or content created by others.
Thankfully, most of our requests for image-use permission have been granted.
However, there have been a few instances when permission was not granted because, curiously, the clients used elements in their design for which they themselves had not gotten permission.
This spurred us to write this article to inform those who are unfamiliar with copyrights and remind those who are.
What is copyright?
Copyright is a type of intellectual property enshrined in United States federal law that gives rights and protection to rights holders against certain unauthorized uses of their original works of authorship.
Before going further, to help better understand the concepts, since copyright falls under the intellectual property law umbrella, it would be helpful to define intellectual property.
This is how the U.S. International Trade Administration describes intellectual property:
"Intellectual property (IP) refers to creations of the mind: inventions; literary and artistic works; and symbols, images, names and logos used in commerce. Businesses are often unaware that their business assets include IP rights."
What does copyright protect?
Copyright protects original works of authorship including those that are graphic, pictorial, sculptural, cartographic, literary (such as poems), dramatic (including accompanying music),
musical (such as songs —including accompanying words — and instrumental music), architectural, choreographic, pantomimic, audiovisual creations (such as movies). and computer software and programs.
What does copyright not protect?
It is important to always remember that copyright protects only a work’s appearance or “expression.” Therefore, it does not protect facts, ideas, titles, short phrases, slogans, names, procedures, processes, methods of operation,
systems, principles, concepts, or discoveries; these items can be protected under the other intellectual property laws: patent, trademark, and trade secrets; or in the way they are expressed
How can work qualify for protection?
In order for a work to be protected by copyright, it must posses the following three elements:
ORIGINALITY
A work must be the original work of the author. It does not even have to be completely novel, nor posses artistic or literary qualities.
The most important factor is that the work must not be a mere copy of a previous work.
CREATIVITY
A work needs at least a hint of creativity. In the words of the Supreme Court, “a modicum of creativity.”
FIXATION
A work must be fixed in a “tangible medium of expression.” This means that the work must be stored on a medium, and that the work can therefore be perceived, reproduced, or communicated. A tangible medium of expression can be any perceptible format.
A few examples of tangible medium of expression include paper, wood, rock, audio or video tape, optical disks, and computer drives.
Does the work have to be registered?
Copyright is an automatic right that is secured automatically when a work that satisfies the aforementioned requirements is created. As such, under current law, no registration, notice or actions are required to obtain a copyright.
What are these rights?
The copyright owner has exclusive rights over their works that they can exercise, authorize, transfer, sell, or renounce. These include the following:
— Reproduce the copyrighted work
— Prepare derivative works based upon the copyrighted work
— Distribute copies of the work to the public, by sale, rental or otherwise.
— Perform the work in public.
— Display the work in public.
How long does a copyright last?
In general, a copyright is valid for the author’s lifetime plus 70 years for works which were created after January 1, 1978.
When can copyrighted works be used by someone else?
Although copyright owners have exclusive rights to their work, there are some limitations to this. One of those limitations is “fair use”.
Within U.S. copyright law, fair use may allow individuals to use copyrighted materials for specific purposes without permission of the copyright holder.
These specific purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
Fair use is determined on a case-by-case basis and is further subject to assessment of four factors:
The purpose and character of use.
Is it commercial, nonprofit, educational?
Is it transformative?
For a new purpose?
Was something new added?
Does it not substitute for the original use of the work?
The Nature of copyrighted work.
Is it copied from fact-based content or is it from creative or fictional works?
The amount or portion of the work.
Are you using a very small or large amount of the work?
The effect on the potential market for or value of the copyrighted work.
Does it harm the existing or future market for original work?
As mentioned earlier, fair use is evaluated on a case-by-case basis. Therefore there is no pre-set formula to determine infringement or compliance.
The Copyright symbol
Although the copyright symbol seems to be ubiquitous, you maybe surprised to find that this or any copyright notice is no longer required for works for works created after March 1, 1989.
So just because you do not see this on an image or the page that displays it, you should not assume that it is ok to use it. In fact, you would do well to assume the reverse: assume that every image is protected by copyright.
The Copyright Symbol.
FINAL WORD
Particularly as it relates to marketing and branding (of which folders are a type of collateral), graphic and web designers — for that matter, even business owners — want what they perceive to be the best and appropriate imagery in their creations.
Producing them from scratch, however, may not always be easy or convenient.
Often, this leads to the use materials sourced from a third-party; sometimes without regard for intellectual property concerns.
In cases where proper authorization to use an image was not obtained, you could roll the dice and hope for the best. However, as it is often the case in matters involving expediency, it could come back to bite you severely; most likely in the form of a lawsuit brought by the copyright owner which could result in heavy damages, thereby making your original action a terrible proposition.
To avoid any such propblems, it is always a good idea to do things aboveboard. In this aspect, there are four main options:
Ask for permission form the image owner.
Purchase royalty free images from a reputable purveyor of stock images. Be mindful of the owner’s restrictions as to how you can use the image.
