By Jill M. Goldman, Esq.
Ever wonder what lawyers really mean when they break into “legalese?” Allow me to convert all that fancy language into “Plain English.”
Here’s the simple version of what bank marketers need to know about copyrights.
Q: What is a copyright?
A (Legal): A copyright is an original idea or form of expression fixed in a tangible medium. This work of authorship includes literary, dramatic, musical, artistic and certain other intellectual works.
A (Plain English): You should protect books, plays, music, paintings, movies, drawings, etc. as these are all copyrighted works.
Q: When does copyright protection begin?
A (Legal): Copyright protection exists immediately from the time that the work created is fixed in a tangible medium or form of expression.
A (Plain English): It starts when “pen is put to paper.”
Q: Who claims the copyright to a created work?
A (Legal): Only the author (creator), or those deriving their rights through the author, can rightfully claim the copyright. In the case of “works made for hire” (see below) the employer—and not the creator—is the author.
A (Plain English): The person who created the work owns it unless they were hired by someone else.
Q: What constitutes copyright infringement?
A (Legal): Infringement is the unauthorized use, reproduction, distribution or public display of a creative work. The creation of a derivative work, or a work based upon the original work, without a valid license or proper authorization is also infringement.
A (Plain English): Always get permission to use anything you didn’t create yourself. Even if you make changes to someone’s work you need their permission.
Q: What does public domain mean for copyright purposes?
A (Legal): The concept of “public domain” under copyright law is different from “publicly available” (i.e. Internet). Public domain comprises all those works that are either no longer protected by copyright (term ended) or never were. Public domain works are generic information (facts, numbers, or ideas), works where the copyrights have lapsed due to time or failure to renew, works prior to 1989 without proper notice, works created by the U.S. government, or works donated to the public.
A (Plain English): Older works or those created by the government are free for everyone to use without permission because they are in the Public Domain. Just because you find it on the Internet does not necessarily mean you can use it without permission.
Q: What is a “fair use” under copyright law?
A (Legal): Fair use is not an exception to copyright infringement, but is a defense to such based on a balancing of four factors by the Court. The purpose of fair use is to allow the minimal use of copyrighted works for commentary, parody, news reporting, research and education.
A (Plain English): Using some items without permission may be allowed if a Court determines the use serves a public purpose (such as editorials, book/musical parodies, news media, etc.).
Q: How can a copyrighted work be used?
A (Legal): A copyrighted work can be used by obtaining permission or executing a license from the author of the work.
A (Plain English): Get the author to say it is “OK” to use their work. Best done in writing.
Q: How can a license for copyrighted works be obtained?
A (Legal): To obtain a license, contact a clearinghouse that represents a catalogue of works on behalf of the authors or directly contact the authors themselves. There are separate clearinghouses for literary works (i.e. Copyright Clearance Center) and musical works (i.e. ASCAP, BMI, etc.).
A (Plain English): Contact the author directly or a “broker” so you can buy in bulk and maybe save money if they require a fee.
Q: Does the intended use of a literary work affect the type of license obtained?
A (Legal): Yes. If the copyrighted literary work is being used for reproduction or distribution internally within the company, then the Copyright Clearance Center’s Annual License will apply. If the work is being reproduced or distributed outside the Company, then you need to contact the author directly for permission or a clearinghouse, such as the Copyright Clearance Center, which can act on your behalf and contact the author for an additional fee.
A (Plain English): What you intend to do with someone else’s work determines how you need to get permission.
Q: What is a “Work Made for Hire?”
A (Legal): Although the general rule is that the person who creates the work is its author, there is an exception to that principle called a Work Made for Fire. This is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a Work Made for Hire, the employer, or commissioning party, is considered to be the author.
A (Plain English): Your bank owns the work created by your employees, and if you specially commissioned work by someone else your bank owns that too so long as it’s in writing.
Q: Is anything required for a “work made for hire?”
A (Legal): Yes. A writing between the parties stating the ownership if the work and that the work is “made for hire” is required when dealing with specially commissioned works by independent contractors. No separate contract is required for employees creating copyrighted works within the scope of their employment.
A (Plain English): When you hire someone to create something for you, it must be in writing like a contract. If the work is done by an employee as part of their job, you don’t need further paperwork.
Q: How long does a copyright last?
A (Legal): The term of a copyright exists (for works created after January 1, 1978) for the life of the Author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a “works made for hire,” the copyright term is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.
A (Plain English): Ownership lasts for the author’s lifetime plus 70 years. If there is no “lifetime” date it is 95 or 120 years.
Q: What is a copyright notice and do I need one?
A (Legal): A copyright notice is an identifier placed on copies of the work to inform the world of copyright ownership that generally consists of the © symbol or word “copyright,” the name of the copyright owner, and the year of first publication, e.g., ©2016 American Bankers Association. While use of a copyright notice was once required as a condition of copyright protection, it is now optional. Use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
A (Plain English): A notice lets everyone know who owns the work. While it is not required, it is a good idea.
Q: How is a copyright different from a patent or a trademark?
A (Legal): A copyright protects original works of authorship, while a patent protects inventions or discoveries. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others (consumer identifier).
A (Plain English): Copyright is for a work of art. Trademark identifies goods or services used in commerce. Patent is for an invention.
Q: Where can I get more information about Copyright?
A (Legal): More public information can be found at the Copyright Office’s website of www.copyright.gov or you should contact your legal department or retained counsel with any specific questions.
A (Plain English): Look online or talk with someone.
Jill Goldman is Vice President, Senior Counsel II with the American Bankers Association.
This article is for informational and educational purposes only. It is not offered as and does not constitute legal advice or legal opinions. The information contained in the article should not be used as a substitute for seeking professional legal advice. If legal or other expert assistance is required, the services of a competent professional should be sought.
