New Copyright Registration Option For Social Media, Blogs And Online Articles

Registering for copyright protection can be especially difficult and expensive for modern writers. Rather than the old school model of publishing a single book, many independent writers now make a living publishing short pieces (think social media or blogs) in frequent bursts. Preparing a new copyright registration form — and paying a fee — every time you add a new post just isn’t realistic, but neither is leaving your livelihood open to getting ripped off. As I previously wrote, there are work-arounds involving group registrations, but those can be clunky and may not provide the full protection you’re seeking.

Thankfully, the Copyright Office continues to fight its way into the 21st century. Beginning next month, you can use a brand new application — the GRTX, or “Group Registration for Short Online Literary Works” – specifically to register collections of short, online writings. Using the new application authors will be able to register up to 50 posts using just one form and for a single, $65 application fee.

WHAT TYPES OF WORKS QUALIFY?

SHORT WORKS BY THE SAME AUTHOR

Because the new registration is designed for short works (it’s in the title), each post must contain between 50 and 17,500 words. Basically, the Copyright Office is trying to find a balance between works that are too short to qualify for copyright protection and self-published novellas that should be registered using a traditional application.

In keeping with the intent of helping independent writers, you also can’t use this new registration if the posts are works for hire. That may be an issue if you’ve set up an LLC or corporation for your business, but most independent authors can identify themselves as the author and then assign the rights to the entity. This issue may be complicated, however and could have ramifications for your entity or taxes, so it’s probably worth discussing with an attorney first.

Each of the posts also must have the exact same author or joint authors. So, for example, you can register 50 posts written by John or 50 posts co-written by John, Paul and George, but you can’t combine posts co-written by John, Paul, George and Ringo with posts that any of them wrote solo.

THREE MONTHS OF POSTS

While you can register up to 50 posts in one application, they all must have been originally published in the same three calendar months. Note that’s calendar months, which run from the first day of the first month to the last day of the last month (i.e., January 1 through March 31). Also, this can be any three month period, so you can finally go back and register all of your old posts, too, in three-month groups.

ONLINE POSTS ONLY

The new registration form is specifically intended for online works, which until now have mostly fallen through the cracks of the previous group applications designed for traditional media such as newspapers or magazines. So in order to qualify for the new application, each of the posts must have been originally published online. It’s OK if you also distribute via hard copy or email, as long as each work was distributed through those methods after or simultaneously with the online publication. If you publish behind a paywall (subscription, individual purchase, etc.), that’s OK too.

If you read my prior post, you may recall that the Copyright Office has been somewhat cagey about whether online distribution counts as publication. Essentially, they let you decide if free online works such as blogs are “published.” That hasn’t changed, but for purposes of this registration you need to take the position that the works are published. That’s usually not going to be an issue, since labeling a work as “published” has several advantages anyway, and previously the most common reason to call works “unpublished” was to try to fit into one of the other group registration methods.

TEXT ONLY

One other potential gotcha – the GRTX registration only covers text, not photographs or illustrations. That will limit its usefulness for things like Instragram posts. However, you’re allowed to combine the GRTX registration with the existing group registration for photos. Say you have 50 posts with photos and text, and you want to register everything. You can do one GRTX registration to cover the text (note in the application that you’re excluding the photos), and a group registration to cover the photos (note that you’re excluding the text). In fact, because a group photo registration can cover up to 750 photos published within the same year, you may be able to combine a single photo registration with four GRTX registrations (though it’s better if you do your registrations at least every 3 months rather than wait a whole year).

WHAT CAN’T BE REGISTERED

Because of these limitations, the GRTX application won’t cover everything you may be posting online. For example, you won’t be able to use it for:

·      Podcasts

·      YouTube videos

·      Websites (the whole thing, not just posts or articles)

·      Emails or email newsletters

·      E-books longer than 17,500 words.

Emails may be particularly concerning if you primarily “post” via subscribed email blasts, but the Copyright Office has specifically banned emails from the GRTX application, so the best option is to “publish” on your website either first or simultaneously.

TIPS FOR PREPARING THE GRTX APPLICATION

The new application form itself isn’t out yet, but the Copyright Office already provided some instructions for completing the process. Because the process is still new, you should be very careful about following all instructions.

The GRTX application will only be available through electronic registration (no paper applications), so if you don’t have a login yet for the Copyright Office’s eCo system, you’ll need to get one (it’s free).

As part of the application, you’ll need to provide a list of the works, including each of their titles, publication dates and word counts, which you can get from a word processing program. Although you can prepare your own list ahead of time, the Copyright Office is including a fillable form as part of the application that will automatically check for common errors, like word counts that are too high or too low, or publication dates that span more than three months. If you’re at all unsure about the process, you probably want to use that fillable form, at least the first couple of times.

If you create your own list, make sure that it includes everything required, and that the filename of the list contains both the title of your group of works (which must match the title you put on the application) and the case number you’re assigned when you start the application. That will be automatically generated and listed at the top of the online application once you’ve started. If your title has a character that can’t be used in a filename, either leave it out or spell it out (i.e., $ becomes “dollarsign.”)

You’ll also need to provide an electronic copy of each of the works on the list, and there are some specific requirements for that as well. Each post needs to be its own digital file (PDF, preferably) with a filename matching its individual title on your list. This does not have to be a screenshot — in fact, it’s better if it isn’t. Since you’re only registering the text, the Copyright Office doesn’t care how the post looks. Just cut and paste the text of the post into a new PDF or Word document. You’ll then upload a single ZIP file that contains all of the works and the list – don’t upload each file individually.

As mentioned above, you can’t use the GRTX application if you write as a work for hire, but you can transfer your works to an entity after the fact. However, even if you do that, ignore the transfer for purposes of the application. The Copyright Office wants the copyright claimant (i.e., the owner) to be the same as the author (i.e., the person who actually wrote the post) when you fill out the form. So list the author(s) as the claimant(s) for now, and if need be, record a transfer of the copyright separately.

One final issue unique to blog posts – if your post includes comments, you have to note on the application that you are disclaiming the comments by others. You can include your own replies as part of the work, as long as you don’t exceed the word count.

NO MORE EXCUSES

If you’re trying to make a living as an online blogger or writer, your work is your business, and you should be protecting it. Using the GRTX application, even fairly prolific authors can now get all of the advantages of copyright registration with a single application filed once a quarter. You absolutely should consider making copyright registrations a part of your regular routine. And maybe register your old materials while you’re at it.

Copyright Registrations For Multiple Works

If you haven’t been keeping up with your copyright registrations – or if you’ve never registered your stuff at all – you may have a sizable back catalogue of content to protect. Or maybe you create new content all the time, and are trying to figure out how to register it without going broke on fees. Either way, a common question is whether you can register multiple works on the same registration form, to save time, money or both.

Unfortunately, the default answer from the Copyright Office is that every creative work should be separately registered. However, there are several exceptions that allow you to register a group of certain types of works on a single application, particularly if you’re a musician or a photographer.

THE KEY QUESTIONS

In order to figure out if you can take advantage of these exceptions, there are a few important questions you need to answer about the works you’d like to register:

• First, are any of the works published? The term “published” has a special meaning in copyright law, which essentially boils down to whether copies of the work were distributed to the public. Public display of a work doesn’t count, so showing your work at a gallery, for example, would not move it to the published category, unless you also sold or handed out copies. What about posting your work on the Internet, you ask? Good question, and the Copyright Office won’t really answer it for you. If you actually encourage people to download copies (for example, by including a way to download a PDF or a music file), then you’re probably publishing the work. But if you’re just posting a photograph, a blog post or a video on a website or social media, then the Copyright Office takes the position that you get to decide if you published it.

  The main advantage of calling a work “unpublished” is that several group registration options are only available for unpublished works. But there is one, specific situation where you may want to call it published, even if it means filing multiple applications – if you posted the work less than three months ago and someone is already copying it. By law, if you register a work within three months of publication, you still get attorneys’ fees and statutory damages for any infringement. But unpublished works only get those benefits for infringements that occur after registration (this is one reason why copyright attorneys encourage artists to do copyright registrations at least every three months).

• Second, if the works were published, when where they published? This matters because some registration options are only available for groups of works that were published together, or within a certain time period.

• Third, who is the author of each work? The “author” is the person who actually created it, i.e. who wrote it, painted it, or took the photo. If it was created as a work for hire, the author is the employer. The author matters because some group options are only available if all of the works have the same author.

• Fourth, who is the copyright “claimant” of each work – the current owner of the copyright? This will be the same as the author unless the author gave his or her rights to another party (such as a publisher or a hold-out company). Like the author, the claimant matters because most group applications only cover works with the same claimant.

Depending on your answers to these questions, you may have several options for registering a group of works at once (and paying only one fee):

OPTION #1 – GROUP REGISTRATION

For unpublished works, the easiest option is probably going to be the Copyright Office’s group registration application. Using this option, you can register a group of works on a single application, without many of the restrictions of the other options. Unfortunately, the Copyright Office now limits you to a maximum of ten works per application (except for photographs – that limit is 750). This may not offer a lot of solace if you need to register hundreds of works, and it’s of no help if you’ve been selling or distributing your items (again, the registration only covers unpublished works). In addition, all of the works must have the same author, same copyright owner, and must be in the same copyright class (literary works, visual art, sound recordings or performing arts).

There is an exception to this last requirement for musicians – you can register up to ten sound recordings and the musical compositions for those songs on the same application, as long as all ten songs are on the same album and the copyright owner for everything is the same. This won’t work if the compositions and sound recordings are owned by different parties, but if you’re self-releasing your work, this option lets you do a whole album in one fell swoop.

OPTION #2 – COLLECTIVE WORKS

If you have significantly more than 10 unpublished works, you may be able to combine some of them as a “collective work.” This type of registration applies to art that is combined in a new, creative way, such as an anthology, or a mix-tape. The registration is intended to protect the creativity in the selection and arrangement of the pieces, not the pieces themselves. However, the registration does cover the individual works if the individual and collective works all have the same owner, none of the individual works were ever published or registered, and the individual works are not already in the public domain.

Preparing a collective work registration is not as simple as the group registration, because the collective work itself has to be creative – if you just slap twenty unrelated pieces together in alphabetical order and call it good enough, the Copyright Office may reject the application. Collective work registrations also have another downside – the entire collection is considered a single work for statutory damages purposes. Statutory damages are essentially penalty awards that you can receive if you later win a copyright infringement lawsuit against a copycat. Normally, you’re entitled to a separate award for every work that was copied, so if someone copies twenty of your short stories, you get twenty statutory damages awards (at between $750 and $30,000 per). But if you combined those twenty short stories in a single collective work registration to save filing fees, you get just one award, not twenty.

OPTION #3 – SINGLE UNIT

This registration option is available if you physically distribute some of your pieces together, regardless of whether they are published or unpublished. For example, a box of mixed greeting cards, a matched jewelry set, or a CD that also has original album work and liner notes. Again, the copyright claimant for each individual component needs to be the same, and if the works were ever published, they must have been first published together, at the same time — if you combine new works with older works, the application may be rejected. Also, unlike collective works, this registration only applies to items that are physically distributed (no digital distribution) to the public.

OPTION #4 – PHOTOGRAPHS

The Copyright Office allows photographers to register larger groups of their works at once, though there is still a hard cap — 750 photos on a single application, published or unpublished (and you can’t mix published and unpublished photos on the same application). All of the photographs on the application need to have the same author and the same claimant, and the registration only covers photos, so you can’t include captions, artwork, etc. If the photos were published, you can only include ones that were published in the same calendar year on the same application.

OPTION #5 – SERIALS, NEWSPAPERS, NEWSLETTERS AND PERIODICAL

Finally, the Copyright Office still provides registration options for several more traditional “group” works, such as newspapers and magazines. These probably won’t be useful to the average small business or individual artist, but if you’re putting out one of these forms of media and want to make sure your work is protected, you still can.

BOTTOM LINE - HAVE A PLAN FOR REGISTERING YOUR WORKS, EVEN IF YOU WAIT TO ACTUALLY REGISTER THEM

As you can see, once you’ve started to sell your works to the public, your options for registering them become more limited. So it’s a good idea to make a plan for how you will register the works, even if you decide you’re going to wait to actually pull the trigger on the registrations for now. Registering the works before they’re published gives you the most options, but it’s certainly not necessary in every case, and even something as small as releasing items in bunches on the same date can give you more flexibility and potentially save you significant money in registration fees in the long term.

Copyright in Characters: What Can I Use? Part II

First, thanks to everyone that read and commented on the original post! The comments were great and touched on a few subjects that weren’t discussed in the post, so I wrote this follow up post to expand on a few of the copyright issues that were brought up. I’ll also be posting Part III soon, which will cover trademark issues.

Copyright Law

Let’s first dig a little deeper into copyright law:

I explained in the previous post that copyright is a form of protection given to authors of “original works of authorship”. The author is typically the person that makes the work, but can also be an employer if the work is considered a “work made for hire”. I won’t discuss “works made for hire” in this article, but you can read more about that on the Copyright Office’s circular on works made for hire.

The works need to be “fixed in any tangible medium of expression” for copyright protection, which means that the work needs to be recorded somehow – essentially, something more than an idea. A painting satisfies the requirement, as does a video or audio recording, and so do video games (although video games have many different copyright involved).

Copyright is actually a bundle of rights that give the author of the work the exclusive rights to reproduce (i.e. make copies), prepare derivative works (i.e. make new works based on the original work), display, distribute, and perform the protected work. These rights are granted automatically to the author but registering the copyright has certain advantages, which are discussed in the Copyright Office’s circular on copyright basics.

Copyright, along with trademarks and patents, is a type of intellectual property. This means that the rights granted to an author are treated as property that can be transferred by the author in a number of ways, such as licensing and assignments. Also, each right is an individual right that can be transferred on its own.

For example, an artist can allow someone to show the artwork in a gallery (display the work) but not make prints of the work (reproduce). Or, keeping in line with characters, a game developer can allow a publishing company to distribute copies of the game, which include the individual copyright in the character itself, to different platforms such as Steam (reproduce and distribute), but not allow the publishing company to make new games based on the original game or change the character in some way (which would be making derivative works).

What doesn’t copyright protect?

Copyright is limited in its scope and specifically does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery”. Patent law typically covers these instead of copyright.

Copyright also doesn’t protect names, titles, or short phrases, which is explained in this Copyright Office circular. However, these can be protected as trademarks, which I’ll explain in Part III.

In the games and characters context, this means that things such as game rules, game mechanics, and basic plot are not protected by copyright. Nor does copyright protect the name of the game or character names. The Copyright Office has a helpful article on the subject that’s worth reading.

Copyright and Fair Use

We’ve covered what copyright protects and what it doesn’t, but sometimes works that are protected by copyright but can still be used in certain situations defined in the “fair use” doctrine.

Fair use is a legal doctrine that permits limited use of works protected by copyright without requiring permission from the copyright holder. However, fair use is a defense to copyright infringement, which means a jury in a federal lawsuit must answer the question as to whether the use is fair use (i.e. you’ve already been sued). That’s why I always recommend seeking a license first.

Fair use comes in many flavors. The most typical examples are commentary, criticism, and parody. To determine fair use, Courts look at the following factors:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.

In the character and game context, fair use is often used in order to make game commentary or critique videos. Some of the “Let’s Play” videos are good examples of this.

For the sake of keeping this article on the shorter side, I’ll refer you to this Stanford article for more examples and a good breakdown of what each of the fair use factors are supposed to mean.

De Miminis Use

In certain situations, you can also use copyright protected works in small portions without the author’s consent. This is because of a legal doctrine called “de minimis use”. De minimis use is tricky because, like fair use, there are no clear lines for when a use qualifies as de minimis and you also have to prove this in court.

The term “de minimis” is from a shortened Latin phrase that translates to “the law does not concern itself with trifles”, which essentially means in the legal context that not enough of the copyrighted work has been used to amount to copyright infringement.

This is different from fair use because de minimis use relates to uses that are so small that courts won’t bother with them, while fair use is intended to provide avenues for the public to use works in a way that would otherwise be considered copyright infringement.

In the character context, de miminis use might allow for a character to briefly appear in the background or be mentioned in a factual manner.

I hope that helps and, again, feel free to leave a comment below if you have any questions!

Read the original post, "Copyright in Characters: What Can I Use?"

Read the final post, which covers trademarks and characters.

Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.

The Consequences of Collaboration

We’re sometimes approached by artists who have undertaken a project with collaborators that have been asked to help the artist achieve their vision. However, the collaborators hadn’t worked out ahead of time who will own the resulting copyright and plunge into the project, or they have only the loosest agreement. By the time we see them, they’re trying to sort out who owns the resulting rights and may even be in the midst of an acrimonious dispute. The good news is that many ownership disputes can easily be avoided by having a written agreement in place prior to the project’s start.

A prime example is a musician who has composed a piece and wants to record a demo for purposes of shopping the demo to a record label or the underlying composition to a publisher. As part of that, the musician has sought out an engineer or perhaps other musicians to assist in the recording process.

Will the collaborators have any copyright ownership interest in the composition or resulting sound recording? In the absence of an employee/employer relationship (which will not be addressed here) or agreement to the contrary, the answer could very well be “yes”.

Copyright Law

Would-be authors, regardless of artistic discipline, should be aware of when and how copyrights come into existence. Copyright automatically attaches when a creative work is fixed in a tangible medium of expression. That is, the work is no longer just an idea in the author’s head and has been committed to a format viewable by the unaided eye or with the aid of a machine. Nothing additional is required of the author.

Ownership of the copyright is fixed with the author at the same time the work is made. If more than one person contributed to creation of the work, ownership will be held jointly amongst all of the co-creators.

Legal Effects of Collaboration

In the absence of an agreement that states otherwise, any artistic contributions made to either the composition or sound recording by the collaborators would make them co-authors and joint owners of any copyrights to which they’ve contributed. This could be as simple as modifications to the melody or lyrics, the addition of a solo, or production choices made during the recording process.

So what does this mean for our musician/composer? As a co-owner of the demo recording, the collaborators would be free to make use of the materials as they see fit, other than to assign or exclusively license the copyright to another party. Further, if our solo musician plays the demo for a record label and the label decides to re-record the composition, collaborators on the composition would have an interest in the resulting royalties.

Obviously, this would be a disaster for a young solo musician as they’ve lost artistic control of what was originally their work or are splitting royalties with collaborators when they didn’t intend to. So what’s the best way to avoid these worst case scenarios?

Avoiding Co-Ownership

To that end, our musician has a couple of options to maintain ownership from the outset of the project: (1) record the demo by themselves or (2) put in place an agreement with collaborators that all of their contributions are owned by the musician.

To avoid any issues, it’s best to have a written agreement in situations where you want to completely own the final product without question or subject to outside claims. Ideally, any artist preparing to undertake a collaborative project should consult put in place an agreement assuring full ownership of the resulting works.

If an artist has already completed a project with collaborators and no agreement was in place, they should immediately try to sort out issues of ownership. In either case, it’s best to consult with an experienced attorney who can guide the process.

Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.

Creatives Ask a Lawyer

Aspect Law Group is working with Design Week Portland to bring you "Creatives Ask a Lawyer"! From DWP:

Do you know when you need a contract? Or how to register a trademark? Bryan Wasetis from Aspect Law Group works primarily with artists, designers, and makers on issues we face, like licensing and protecting intellectual property.

He's here to answer all of your burning legal questions and will be working a few responses into a column on our blog.

You can send us questions through Twitter or email.

Keep an eye out for our answers!