Whether you’re a digital content creator, visual artist, or business running a marketing campaign, there are important copyright considerations to keep in mind to safeguard your work. While this list isn’t exhaustive, I’ve found that understanding a few key legal concepts is crucial, whether you’re creating your own work or using others’ work.
1. In general, works are protected by copyright law upon creation, but there are still important reasons to consider registering copyright.
Under U.S. law, copyright attaches when a work is created and fixed in a tangible form. A creator does not need to register copyright with the U.S. Copyright Office for the work to have copyright protection. Similarly, there is no requirement that a creator include a copyright symbol when publishing a work, although use of the symbol can deter would-be-infringers from copying work and gives notice of ownership to those who may be interested in obtaining a license to use. (One caveat: a copyright notice was required for works published before March 1, 1989.)
Not all works, though, are protectable under copyright law. The U.S. Copyright Act requires that the work be original, tangible, and fixed.[i] The statute also excludes certain works. Ideas, methods, and processes are not subject to copyright protection, for example.[ii]
There are also important reasons why creators should register copyright. A copyright owner needs to register their work in order to bring a lawsuit for copyright infringement. The U.S. Supreme Court held in the 2019 case, Fourth Estate v. Wall-Street.com [iii] that a claimant may bring a civil action only after the Copyright office registers the copyright. Therefore, simply making a last-minute copyright application to the U.S. Copyright Office prior to filing a lawsuit will not be sufficient to bring an infringement lawsuit.
Another good reason a creator may want to register copyright is to seek statutory damages and attorney’s fees. A plaintiff can only seek statutory damages and attorney’s fees for copyright infringement if copyright is registered within three months after publication of the work or prior to the infringement. The range of statutory damages available is set forth in the Copyright Act and can go up to $150,000 per work if the infringement is found to be willful. The ability to recover attorney fees can be very beneficial to a plaintiff as litigation can be very costly. If copyright is not timely registered, a plaintiff may only seek “actual damages,” such as lost profits.
2. Works solely created by artificial intelligence are not currently protected under U.S. copyright law.
The current position of the U.S. Copyright Office is that works created solely by artificial intelligence (AI) cannot be registered. The Office has refused to register works created by AI several times in the past year on that basis. In the Office’s view, copyright protects only works that are human created. Registration guidance issued by the Office in March 2023[iv] for works containing material created by AI, reiterated that the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office recognized that material may be created both by a human and AI but when AI technology determines the expressive elements of it output, the generated material is not the product of human authorship, and the material is not protected by copyright. Moreover, the Office requires applicants to disclose the inclusion of AI-generated content in a work submitted for registration and to provide the Office with a brief explanation of the human author’s contributions to the work. The Office’s guidance describes the steps necessary to correct already submitted applications and caution applicants who fail to update a registration for works generated by AI as being subject to having their registrations cancellation if the Office becomes of the deficiency.
The Copyright Office is currently undertaking studies to examine AI’s impact on copyright law and policy. In early August 2024, the Office issued its first report on its findings and recommendations to Congress on digital replicas, which it describes as videos, images, or audio recordings that have been digitally created or manipulated to realistically or falsely depict an individual. Additional reports on generative AI will be forthcoming.
3. “Fair use” is ultimately determined by a court of law.
Many clients want to know whether their intended use of content created by someone else would be “fair use." "Fair use" is an affirmative defense to a copyright infringement claim. The defense allows use of a work without permission or license by the copyright owner. The long and short answer to whether a use is "fair use' almost always is, “it depends.” Unfortunately, there are no short cuts to determine or bright line rules to determine “fair use.”
There are, however, factors that will be considered by a court. Under the U.S. Copyright Act, courts “shall” consider four key factors in determining “fair use”: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use upon the potential market or value of the copyrighted work. In addition to these four factors, courts are also permitted to consider additional factors.
Interpretation and application of each of the factors is left up to the court before which an infringement claim is made. The U.S. Supreme Court weighed in on “fair use” in May 2023 after it agreed to hear Andy Warhol Foundation v. Goldsmith,[v] following years of appeals by the parties. In that case, photographer Lynn Goldsmith took a photo of the musician Prince, which she licensed to Vanity Fair magazine. Vanity Fair then hired artist Andy Warhol to make a silkscreen using Goldsmith’s photo for an article about Prince. Warhol subsequently used his illustration for creating a series of Prince prints. Goldsmith sued the Andy Warhol Foundation (who owned his rights after his death in 2016), alleging that Warhol’s use of her photograph to create his prints was copyright infringement and did not fall within “fair use.”
The decision was highly anticipated in legal and art circles for how the Court would apply the four “fair use” factors, especially the first factor. Lower courts had frequently emphasized the first factor to find “fair use” if the copyright use was “transformative” of the original use; indeed, Warhol argued the nature of the prints was “transformative” of the original photograph.
However, the Supreme Court decided in favor of Goldsmith, holding that Warhol’s use was not “fair use.” The Court found that Warhol’s use had the same purpose as Goldsmith–a commercial purpose, in that both were licensed for use by Vanity Fair–and Warhol’s use was not sufficiently distinct from Goldsmith on that basis. While the Court noted that a new expression may be relevant to whether a copying use is sufficiently distinct from the original use, it was not dispositive of the first factor and the commercial nature of the use needed to be considered, too.
Warhol will be helpful in future cases addressing “fair use,” but it was decided on the facts before the Supreme Court and, therefore, not necessarily dispositive as to how subsequent cases will be decided by other courts.
4. And… keep in mind that VARA may apply.
If you are a visual artist, your artwork may be protected under the U.S. Visual Artists Rights Act.[vi] VARA protects artists’ rights in certain categories of visual art and these rights are separate and distinct from copyright. A violation of VARA is not the same as a copyright infringement. VARA recognizes:
· A right of attribution, which gives an artist the right to claim authorship of their work and to prevent the use of their name for any work of visual art which they did not create; and
· A right of disassociation, which gives an artist the right to prevent any intentional distortion, mutilation, or other modification of their work and prevent any destruction of their work of recognized stature.[vii]
Even if an artist sells their artwork, their rights under VARA remain, unless the artist explicitly waives their rights.
VARA’s implications should be carefully considered by artists and property owners for artwork that is on or part of a building structure. There are few case opinions addressing VARA, due to case settlements before trial, but at least one litigated case illustrates that damages at stake can be substantial. In Cohen v. G&M Realty L.P., a group of five graffiti artists successfully made a claim against a developer after the developer, without notifying the artists, whitewashed over their work they had painted at 5Pointz, a complex of industrial buildings. The jury found in favor of the artists and the court awarded them $6.75 million dollars in damages -- $150,000 for each of the 45 murals destroyed, the maximum amount allowed under VARA. The developer appealed the decision and amount of damages awarded, but the award was upheld by an appeals court.[viii]
Copyright laws and VARA each have many nuances and their interpretation by courts, and the U.S. Copyright Office, is evolving. It is wise to consult an attorney to understand how to protect your rights and minimize the risk of infringement claims before using others' works.
[i] 17 U.S.C. §102(a)
[ii] Id.
[iii] 139 S. Ct. 881 (2019).
[iv] 37 C.F.R. pt. 202.
[v] 598 U.S. 508 (2023).
[vi] 17 U.S.C. §106A.
[vii] Id.
[viii] 950 F.3d 155 (2d Cir. 2020).
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