Creativity and innovation fuels commerce, change and inspiration.
At no other time before in history have thousands of creative ideas, songs, films, artwork, and inventions flooded the globe the way they are now. And thanks to the internet, creative content is constantly being used, reshuffled, shifted and appropriated, with or without the original creator’s permission.
Whether or not you want to use other people’s work or protect your own, it’s crucial for any creative professional to be familiar with issues of intellectual property and copyright.
In this guide, we’ve provided the ‘cliff notes’ on some terms to get cozy with—copyright, trademark, attribution—as well as highlighting what is considered ‘fair use.’ We also share some ways you can protect your own intellectual property, from idea to product.
Delving into the world of copyright is an intimidating prospect, especially when you can’t afford an army of lawyers to protect you from potential lawsuits when you want to use someone else’s song, film, quote, image or art in your work.
Copyright law is really, really complicated—and even that army of lawyers couldn’t help Beyoncé when it came to infringement issues.
It’s important to have at least a basic understanding of the difference between copyright vs trademark if you’re a creative freelancer or business owner.
Because the work you do and the ideas you have are valuable and worth money! And if you sell or make creative services or products, at some point your work will cross paths with the concepts of copyright, trademark, fair use and attribution, or all of the above.
Though both copyright and trademark fall under the umbrella of intellectual property, they’re different in that different types of assets are protected with each. Copyright is meant to protect creative and artistic works, like music, books, and films, while trademark is for products and items that help define a company brand, such as a logo.
Copyright protects original, artistic, and creative works like "literary, dramatic, musical, artistic, and certain other intellectual works." (source: U.S. Copyright Office).
According to The United States Patent and Trademark Office, a trademark protects "words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods."
As a creative professional, business owner, or freelancer, you’ll want to be familiar with these two terms in order to protect your own work and brand.
Fair use is a doctrine in copyright law that provides for the legal incorporation of copyrighted material in another creator's work. It’s a useful doctrine that provides for wide interpretations of what it means to use other’s copyrighted work in your own, so if you’re planning on doing that, it’s a good idea to at least take the temperature of where your use of other’s work falls under fair use.
Think of “fair use” as a barometer for determining the limitations of fairness for both parties—protecting the creator’s work, while also allowing for free speech and artistic expression. Examples of fair use are commentaries, criticism, and parody, research, and scholarship.
Typically, a ‘four factor’ test helps examine intent and objectives when using another person’s copyrighted work. One thing to remember is that all of these standards are subjective, contextual and on a case-by-case basis. But it’s still nice to have some cliff notes to cover your butt!
When using a copyrighted work in your project/piece, ask yourself the following questions:
While this is only a beginning, some of these terms and concepts will help you get an idea of the moral minefield that is copyright law!
Intellectual property, according to the World Intellectual Property Organization, is considered “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”
As a creator, you want to protect your work from copyright infringement and as a person using someone else’s work in their own, you should attribute their work (and maybe even pay royalties).
To make it less confusing, here’s a few basic terms and concepts that can serve as guideposts when trying to figure out how to attribute rights to the original creator.
Think of Creative Commons as THE place for sharing, licensing of creative works of all kinds.
It also happens to have one of the most fantastic collections of creative works in the world, with thousands of images from large institutions like the Met, right down to collections featuring independent creators themselves, as well as an array of music, videos, academic writing, and even code to use commercially or modify, adapt or build upon, depending on the attribution license.
Which leads us to…
Attribution is basically credit to the copyright holder or original owner of the work. Attribution is one of two major ‘moral rights’ under the U.S. Copyright Act (the other is the right to integrity-which protects the creator’s intent and vision).
The right of attribution says that no matter who makes money off of using a copyrighted work the one who originally created the work still has to be named as the creator (unless you’re that monkey who took a selfie).
When a work is copyright free, it means it is without copyright and free to use in any way you want. When a work is copyright free, it could be for lots of reasons-maybe it’s in the public domain, or maybe the copyright has expired or is in use by another party that has released it in the public domain.
Royalty free, or RF, still means the work still has copyrights, but it can be used without the need to pay either royalties or license fees. We also have a handy list of five royalty-free music and sound sources for your next project, too.
So. Now that you understand a little more about intellectual property, copyright and attribution, you’re probably wondering, ‘but how can I protect my (potentially) million-dollar idea, invention, or brand?’
According to the U.S Copyright Office: “copyright protection in the United States exists automatically from the moment the original work of authorship is fixed.”
However, they do recommend registering one’s work for copyright protection just to have it on public record in case something does happen. But it will cost you—anywhere from $45 to hundreds of dollars in registration and other fees. And if you ever do need to sue for copyright infringement, you’ll need to register to move forward with the case.
It’s worth mentioning here that copyright protections do not extend to some work-for-hire situations. For example, if you work full time, anything you create for the company while you work there can be considered their intellectual property, not yours (this is also true with some contracts).
If you WANT people to remix, remaster, or otherwise use your creative work freely, you can register it with an entity like Creative Commons. There are a variety of licenses so you can set the terms of usage, while still making your work publicly available and preserving its copyright. A list of the different types of Creative Commons Attribution license categories is here.
In the case of patents for an actual invention (not just an idea), or trademarks for a business, it’s more important to seek out the protections that come with registering. If you’re hoping to ever expand internationally, for example, registering a trademark with The United States Patent and Trademark Office will grant exclusive rights to the name across the U.S.
While we are not lawyers, hopefully this primer will get you familiar and comfortable with the concepts behind copyright and intellectual property so you have a better sense of what to do when you want to use other’s work in your own, or how to control and protect your own original work and ideas.
For more information on IP and copyright, or if you have specific questions, Washington Lawyers for the Arts holds regular legal clinics free of charge.