What is Intellectual Property?
Intellectual property refers to intangible property (e.g., a design originating in an artist’s mind) that has been made tangible in the form of a literary, graphic, architectural, audiovisual, or other artistic work, including musical and sound recordings. Under the U.S. Copyright Act, 17 U.S.C. §§ 101 – 810, a creator (author, artist, architect, filmmaker, musician) has an immediate “copy right” (copyright) attached to an original work and the exclusive legal right to make copies of the work, prevent others from copying the work without permission, and the right to license others to copy (and publish) that work. In general, the duration of protection is (for works after 1978) for the life of the author plus 70 years. Given the limited amount of time a copyright maintains protection, some works, such as most antiquarian books, are “out of copyright.”
Any creator, whether an artist, photographer, musician, author, poet, architect, filmmaker, or designer should notify others by placing a © on the work with a date, but this is not required by law except as notice to others that the work is protected. Should somebody copy or infringe on the work without permission, then the date of creation or publication becomes evidence of when infringement occurred. A creator is not required by law to submit copies of the work with the U.S. Copyright Office, which requires a completed form and small fee, but it is probably wise to do so if the creator considers their work to be valuable. A creator may submit a group of works to the U.S. Copyright Office, however, and the group of works as well as individual works within the group will receive the copyright protection that filing with the U.S. Copyright Office offers. For example, a photographer could submit a collection of photographs entitled, “New York 2018,” and each photograph would have individual protection as well as protection as part of the group.
The key to intellectual property is “originality.” You cannot copyright somebody else’s work except by their permission. Any person wanting to use a selection from a copyrighted work, such as a photograph, should ensure that they either have permission of the original creator or that they use of the work is “fair use” under Section 107 of the U.S. Copyright Act. Fair use refers to the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research; fair use is not an infringement of copyright. For example, if I, as an associate professor of business, write a journal article about intellectual property and use a quote from another author, then I am allowed to do so as long as I do take credit for those specific words. In order to ensure that no reader thinks those quoted words are mine, I credit the original author in a footnote, references, or citation in my article.
There are many exceptions and further nuances to the U.S. Copyright Act, which you may review online: https://www.copyright.gov/title17/
In the next blog, we will cover “orphan works.”
By Pamela S. Evers, Attorney at Law
