In this session, we're going to talk about how do you get a copyright.
We know it's important. How do you get it?
The first thing to look at is what do I need to get a copyright?
To get a copyright,
you must create, yourself, an original work.
If you copy somebody,
you can't get a copyright.
If you copy somebody else's work or it's based on somebody else's work,
it's a derivative work, you can't get a copyright.
So it has to be an original work.
The second thing is it has to be a tangible expression. What does that mean?
It means that has to be recorded.
It could be something you record on paper.
Even if it's a song,
you can write down the notes,
but it has to be recorded somewhere,
somehow, in some form.
That tangible expression might be,
for example, punch cards.
Early tangible works were things like art or creative design in tapestries.
Fabric was recorded on punch cards and those punch cards
made the picture by running weaving looms in a certain pattern.
Later, they were used for computers.
Today, of course, we have laptops or your mobile phone;
you can record it on a mobile phone.
That's a tangible recording.
Even if you just record it for a second,
then you send it to someone else and lose the original,
you still own the copyright because it was recorded in a tangible form.
Even if you don't have it in your possession,
if it was once recorded by you and created by you,
it is your copyright material.
Even if you gave it to someone else or you've lost it,
if the original is recovered or a copy of that original is recovered,
that is your tangible expression in your original work.
So that creates the copyright.
What do you need to get protection under copyright?
Pretty much, it's automatic.
There are few countries in the world that require registration,
but for most countries registration is optional.
On the other hand, it can give you more money,
so you may be able to sue for more money if you do register.
And in a few countries, registration is required.
An example of registration being valuable even if it's not required - let's
say you download a song illegally and somebody says I'd like to sue you for that.
You downloaded my song, I object.
And so I'm going to sue you.
If it's not registered,
I can sue you for damages. What are damages?
Well, how much did you lose because of that song being downloaded?
I download your song,
you're out a dollar.
That's what I might have otherwise had to pay to
iTunes or somebody else for downloading your song legally.
Therefore, your damages can't be more than a dollar.
But if you have registered it,
you can have something called statutory damages,
which is a bigger dollar amount.
You could sue for $30,000 for each song downloaded.
And that could add up to a lot of money very quickly,
easily making it possible to pay your attorney.
For a dollar, you don't have a problem.
You're gonna have to have a whole lot of songs before
you're even gonna come close to covering your legal costs.
For $30,000 per song downloaded,
that's big judgments, even for modest downloading.
So it makes it much more attractive to sue if you have registered your copyright work.
Copyright also includes works owned by corporations,
which can come in two ways.
One is a work made for hire.
A work made for hire is something like software developed
for a corporation or movies developed for a movie studio,
contractors developing applications for a client.
These are all things where you've hired someone to create something for you and so
it's a work made for hire by your employee or by a subcontractor,
someone working for your contractor working for you.
That's a work made for hire.
There's also the possibility of buying rights that were created before you got involved,
which is assignment of rights.
You have the rights or someone else has created a song or someone
else has created some software and they say I will sell you that right.
Maybe I sell you the entire rights.
Here's a song, I've written it for some purpose and Disney says,
I'd like to buy that song with all of its rights to use
in any way we want to - in theme parks, movies or whatever.
And you could say sure, I'll sell that.
Or you could say I will only sell you the right to use it for one movie and that's it.
And I want this price for that.
But if you want to use it in another movie,
you've got to come to me again and we ought to negotiate another deal.
That's a limited assignment of rights.
So you could assign all rights or some rights.
Contractors can do the same thing.
So you might have a work made for hire which is the original contract says, that's mine.
I'm employing you to do something for me;
maybe not as an employee,
maybe as a contractor.
Or you've created it on your own and I'm going to buy those rights from you later,
in part or in full.
Either way, the work is owned by a corporation.
And it's likely that corporations are the ones who are going to
sue you because most of copyright intellectual property,
which is valuable, is owned by a corporation in
one way or another - a work made for hire or an assignment of rights.
An example of work made for hire that got interesting is
a newspaper hired some journalists,
writers, to create stories about how to start up a small business.
They ran this in the newspaper as a series of articles about business startups.
And it was popular. People enjoyed reading it.
They decided to rerun it in the newspaper over time and it was still popular.
People still enjoyed reading it. This was no problem.
They had paid for these stories,
these rights and they're popular,
but now they decide, you know what?
We could put this online or we could put this on a CD.
And the authors sued and said no,
we never gave you the right to put this online.
We never gave you the right to put it in a CD.
The newspaper said look,
I bought these stories.
This is my business.
I bought it for my business.
I'm now expanding into a new business online or
CD-based education in how to start up a business successfully.
And it's an extension of my business and I'm using this thing that I
bought in a new way by my same company.
And the court said no,
you can't do that.
In fact, the ruling of the court was if you want to have an assignment of
rights that includes new businesses or new media,
you need to specify in your contract with
the people you're buying rights from "these rights,
which are being assigned,
apply to any known or future media."
Because you didn't do that,
the assumption is it applies only to that which is currently being used in your business.
If you jump into the online business and that's new or into CDs and that's new,
you have to renegotiate rights because you haven't bought those rights.
That's for a new business.
So these are words you might want to use if you're buying rights from someone else.
If you're hiring someone to work for you,
make sure you add in the terms "these rights that are being assigned
under copyright law apply to any known or future media."
Otherwise, you may be not buying as much as you thought you were.
How do you get copyright then?
It has to be an original work.
It has to be a tangible expression.
Registration is useful and sometimes required - for example,
in China, it's probably required.
There are actually two laws in a little bit of conflict.
One says it's required,
one says it's not.
When you have that kind of conflict in law,
it's better to observe the stricter law and say for all practical purposes,
if you want to sue, you better have it registered.
And in the U.S. and other countries,
you can sue for more money if it's registered.
So it's just a good idea to register,
although it may not be required.
And most copyright is corporate-owned,
either because corporations hires people to create it who
work as employees or staff or contractors or
because they hire people's work after it was created as an assignment of rights basis.
When they're working as employees or
subcontractors to create a specific work for a company,
it's a work made for hire;
when they're selling after it,
that's an assignment of rights from the point of view of the company.
Either way, they're going to sue you if you violate that or potentially sue you.
That's it. Thank you very much.
Theodore Henry King CLARKAssociate Professor
