Guest post by Emily Campbell, Esq.
Part 1: Marking Your Territory
People and animals are not always so different. Just as our pets mark and protect their “territory,” likewise bloggers seek to protect the value, effort, and let’s face it, “heart and soul” that goes into the creation and maintenance of a personal or professional blog. Where pets have [ahem] “marking techniques” to alert others to the boundaries of “what’s mine,” bloggers have copyright law.
Where does it come from?
US copyright law was born upon the framing of the US Constitution. Specifically, Article 1 Section 8 of the US Constitution, which legal beagles lovingly refer to as the “progress clause.” We call it this because the purpose or policy behind the clause is to “promote the progress of Science and useful Arts.” The thought is if people can’t protect the original and creative products of their minds, they may quickly loose incentive to create, and without creativity and innovation, where would we be?
What does it protect?
So, we know that copyright protection exists, but what exactly does it protect? It protects “original works of authorship” that are “fixed in any tangible medium of expression” – i.e., creative stuff you imagined that has made its way out of your head and onto something like paper, video, or sound recording. Some of the more well-known copyrightable works are books, music, movies, photographs and art. However, some lesser known copyrightable works are websites, choreographed works, software, and even some toys.
When you think about it, each blog is a virtual treasure trove of copyright protectable pieces, including the writing, photographs, graphics, music, and even the website itself. However, the blessing and the curse of our increasingly Internet-based world, is that we have easy access to so much great and interesting content, and easy access usually means easy to take.
How do I get my copyrightable work “copyrighted?”
You already did! One of great myths of copyright law is that you have to apply for a registration in order to “copyright” your work. Consider me your resident myth buster, because the truth is the moment that an “original work of authorship” is fixed in that “tangible medium of expression” you automatically have copyright protection in that work. It is a done deal. A copyright registration will bolster the rights you automatically get when you satisfy that magic equation of [original work of authorship] + [fixed in a tangible medium of expression]. However, the registration does not give you those rights, they are inherent – i.e., automatically bestowed, at that magic moment of fixation.
So, all this talk of “rights,” what exactly are my “rights” as an author of copyrighted work?
These loveable rascals are my furbabies. I took this picture myself and it is fixed in a tangible medium of expression- i.e., a photograph. Looks like I have satisfied that magic formula…. BAM! I am now the proud owner of a copyrightable work! So what rights do I have in this picture? Copyright law offers a “bundle of rights” to copyright holders; which, taking my photo as an example, are the exclusive rights to:
(1) Make copies of this photograph.
(2) Make derivative works based on this photograph – i.e., to make a new and different work based substantially on this photograph, like a painting.
(3) Distribute this photograph.
(4) Display this photograph.
(5) Perform the work publicly (doesn’t really apply to photographs).
The fact that these are exclusive rights means that if someone wants to use my photograph they need to get my permission, or they need to use it “fairly.” (We will talk lots about “fair use” at the conference!)
Until next time, happy and safe blogging! Please don’t hesitate to shoot me questions or concerns in the comments, and let me know if there is a “legal hot topic” you would like me to touch on next month!
Emily Campbell is an associate attorney at Oklahoma City's Dunlap Codding, P.C. Emily provides strategic counsel to clients on trademarks, copyrights, Internet law, and licensing. Emily graduated from Oklahoma City University School of Law in May 2007. Prior to law school, she received her B.S. in Industrial Engineering in December 2003 from the University of Oklahoma. Emily has two adorable furbabies—Cooper, an English bulldog and Kerrby, a Yorkie. In October, Emily welcomed the newest addition her family—a beautiful baby girl named Ellie.