What is a Copyright?
When a person works hard to create something truly original, they have the right to protect it. They also have the right to prevent others from using this work as if it were their own. According to the U.S. Copyright Office (2006), “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.”
Copyright protects genuine articles that have been created by a person or group of persons. “Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” (U.S. Copyright Office, 2006) Copyright also protects artistic works such as images, logos, clip art, pictures, photos, articles, etc. As a designer, it’s important to note that there may be circumstances when the copyright to some types of work does not belong to the creator.
Copyrights almost always belong to the creator, and ownership can be transferred at will. However, this is not always the case, and it’s important to know the circumstances when a copyright is not owned by the person who created the work. Work for hire is a different situation. If something is created for a company during employment it is considered as work for hire, and the copyright ownership is given to the employer rather than the employee. If the artist wants to retain the copyright for this type of work, arrangements must be made prior to the work being created, and must be put in writing. (Rosenblatt, 1998)
According to Betsy Rosenblatt (1998) in her article Copyright Basics, “Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations.” You cannot copyright something that is intangible. The work must be in a fixed form before it is recognized as a creation and eligible for copyright. For example, the song you made up to sing your daughter to sleep is not copyrightable until it has been written down on paper, taped or otherwise recorded.
The duration of a copyright depends on several factors but copyright protection lasts for the lifetime of the creator plus 70 years. The protection period is slightly longer for anonymous works, pseudonymous work or work for hire creations. These last for 95 years from the date of publication or 120 years from the time of creation. The duration of a copyright for work created before 1978 can vary. Copyrights granted after 1978 are not subject to renewal, but for those created before 1978, renewal is recommended after 28 years. (US Copyright Office, 2006)
Who Needs a Copyright?
The act of creating a work of art into a fixed format automatically grants a copyright on that piece of work. However, this isn’t always enough to protect the piece from infringement. Creative Public (ND) tells us, 
“You can file for a copyright at any time, but you cannot legally file an infringement of copyright action unless you have registered the work in question.” In order to file suit and receive damages from someone using your work without permission, the work in question must be registered with the Copyright Office. Forms are available at the Copyright Office web site, and the cost for registration is about $30. (Creative Public, ND)
Although it is not required, registration is recommended, particularly for large pieces of work that will be seen by many people. Along with enabling the creator to file suit against someone infringing on a copyright, registration in a timely manner allows the creator to collect any attorney fees or statutory damages incurred due to the infringement. Registering a piece of work also makes ownership a matter of public record, and if registered within 5 years, can provide prima facie in a court of law. (US Copyright Office, 2006)
A poor man’s copyright is the practice of sending a copy of your work to yourself in a dated and sealed envelop. Many think this will protect them in a court of law, but that is not the case. “There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.” (US Copyright Office, 2006) In order to truly protect your work, and guarantee satisfaction in a court of law, all work must be registered.
Popular Copyright Myths
There are several popular copyright myths, and sometimes it’s hard to figure out what is copyright protected and what is not. A good general rule of thumb is that if you didn’t create it, you don’t have a right to use it. As with anything, there can be exceptions so it’s important to know the truth behind the myths.
The most popular myth is that if it doesn't have a copyright notice, it's not copyrighted. This may have been true in the past, but it is no longer the case. In fact, Brad Templeton (2004) informs us that “in the USA, almost everything created privately and originally after April 1, 1989, is copyrighted and protected whether it has a notice or not.” Templeton also points out that most nations adhere to the copyright principles adopted at the Berne convention. Placing a copyright mark on the piece of work does strengthen the defense because it provides a visible mark of protection, but it is not required to show ownership. (Templeton, 2004)
Another popular myth is that when you download a piece of work from the web and then alter it by changing colors, flipping the image, or changing bits and pieces of it, you have made it your own, and now own the copyright for the new piece of work. This is not the case. In the words of Bobbie Peachey (2008), “Only the person who created it has the copyright to it. Unless you have obtained permission from the creator to take and change an image can you do so, but this still does not give you the right to claim it as your own.”
Another myth that made Templeton’s list is that if it’s not charged for, it’s not a violation. You cannot give something away when it is not yours to give. In the US there is an exception for copying music from a source you purchased legally for your own personal use, but this does not extend to then giving this music to others. File sharing of this sort is absolutely copyright infringement and should be avoided at all times. (Templeton, 2004)
One final myth to look at is the old ‘if it’s posted online, it’s in the public domain and therefore free for anyone to use.’ Just because it’s out there doesn’t make it yours, and it doesn’t mean you have the right to use or change it. Templeton (2004) says, “Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain.” Templeton (2004) goes on to say that to place something in the public domain must be done explicitly using words akin to “I place this in the public domain.” It’s important to remember that if you do place something in the public domain, you relinquish all rights to it. You cannot place a conditional release, and anybody out there can modify your piece of work by a single pixel and then call it their own. (Templeton, 2004)
Copyright Infringement
The term copyright infringement is often tossed around in the news, but few people understand exactly what constitutes copyright infringement. To put it simply, “Copyright infringement occurs when you use or distribute information without permission from the person or organization that owns the legal rights to the information.” (McDowell, 2008) This includes anything from the commercial cartoon you place on your website to the music you downloaded without paying for it to the report you copied word for word and claimed as your own. (McDowell, 2008)
Many people feel that doing these things is harmless. After all, everyone else is doing it, and it’s something you see all the time on social networking sites. However, there can be serious legal and security repercussions that stem from these types of infringement. A person taking part in copyright infringement can face time in jail for their actions. This would be an extreme case, but it could happen. More commonly, copyright infringement is dealt with by issuing a cease-and-desist order forcing removal of the copyrighted material. Costly fines are another possible consequence, and it is feasible that artists will increase the cost of their work to offset losses caused by copyright infringement. (McDowell, 2008)
There are also security risks involved with copyright infringement. The Mindy McDowell (2008) article Avoiding Copyright Infringement on the US-CERT website states:
Attackers could take advantage of sites or networks that offer unauthorized downloads (music, movies, software, etc.) by including code into the files that would infect your computer once it was installed. Because you wouldn't know the source or identity of the infection (or maybe that it was even there), you might not be able to easily identify or remove it. Pirated software with hidden Trojan horses is often advertised as discounted software in spam email messages.
As you can imagine, these security risks can ruin your day; not to mention that they have the potential for destroying your computer.
Not only are there security and legal issues to deal with when discussing copyright infringement, there are also moral issues to consider. Moral rights, protected by the Visual Artists Rights Act of 1990 (VARA), refer to the right of the artist to determine how their work is used and are intended to “protect the personal and reputational, rather than purely monetary, value of a work to its creator.” (Rosenblatt, 1998)
Moral rights protect a creative work from being defaced or devalued through the acts of another and give the author the right to decide how and if their work is displayed, how it can be altered and by whom, and also provides for the rights to royalty benefits derived from the work. Unlike copyrights, moral rights cannot be transferred, and end with the life of the artist. (Rosenblatt, 1998)
Fair Use
All this talk about the dangers involved with copyright infringement raises the question, can I ever use anything I didn’t create myself? The answer is yes. There are ways to utilize the work of someone else without facing copyright infringement penalties. Asking the artist for permission is always an option. Permissions can usually be obtained for a fee, and there may be circumstances where usage is free in return for a promotional exchange. Many artists will allow you to use your work if you agree to link back to their site and give them proper credit.
There are also considerations provided for the fair use of any copyrighted piece of work. The U.S. Copyright Website (2006) provides the following definition of fair use:
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.
Section 107 of the Copyright Act (2006) dictates four fair use factors:
- The purpose and character of the use
- 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
These factors are all considered together when looking at possible copyright infringement and according to Lloyd Rich (1999) in his article Parody: Fair Use or Copyright Infringement, “A court when evaluating a fair-use defense takes into consideration each of the four factors as no single factor by itself is sufficient to prove or disprove fair use.” To avoid copyright infringement, it would be advisable for anyone who wants to use a piece of work they didn’t create to examine the four fair use factors when making their decision.
Conclusion
When looking at copyright laws one thing is perfectly clear; if you didn’t create it, it is not yours to use. There are exceptions to this rule, but there are proper procedures to follow when utilizing work that is not your own. For a graphic designer, it is essential to abide by copyright laws, and important to understand both how to protect original artwork and how to avoid infringing on someone else’s work. By following copyright laws and exercising sound judgment using the four fair use factors, copyright infringement can be avoided, and everybody can go home happy.
