© Basics: Different copyright subject matter

June 17, 2014

Copyright protects different kinds of subject matter.

Under the category of “works” copyright protects literary works, artistic works, musical works and dramatic works.

A literary work is any written work substantial enough to attract copyright protection, regardless of literary merit. This category includes books, blog posts, letters and essays. (Fun fact: computer programs are also classified as literary works).
Artistic works include paintings, photographs, drawings, sculptures and engravings (regardless of artistic quality).
A musical work is the musical notation of a song or piece of music. It does not include the song lyrics – those are a literary work.
A dramatic work includes a scenario or script for a film, a choreographic show and mime shows.

Under the category of “subject matter other than works” copyright protects sound recordings, cinematograph films, television and radio broadcasts and published editions. Don’t worry about broadcasts for now – those aren’t relevant to you.

The legal definition of a sound recording is “the aggregate of the sounds embodied on a record”. Think: mp3 tracks or tracks on a CD, recorded podcasts.
A cinematographic film is the aggregate of the visual images shown as a moving picture. Think: movies (both full length and shorts), clips uploaded to YouTube, recorded video logs (vlogs).
Published edition refers to the way that a literary work is formatted and laid out (including the design elements) for publication or printing. Basically, the look and feel of the final published work.

Slightly different rules apply to each of these categories. I will highlight these differences in my posts as I go along.

Ummmm, how is all this legal mumbo jumbo relevant to me, as a blogger??

The reason why it’s useful to know the different types of copyright subject matter is that a creative item can have several different layers of copyright protection, and sometimes these layers can be owned and controlled by different people. So for example:

A book will have copyright as a literary work (with the owner, at first instance, being the author) and there will also be copyright in the published edition of the book (generally owned by the publisher). If the book is illustrated, then the illustrations will be protected as artistic works (with the owner, at first instance, being the illustrator).

Similarly, a song will have protection as a musical work and the lyrics will be protected as a literary work. Once recorded, it will also have protection as a sound recording.

A humble blog post may have many layers of copyright protection – in the words written (as a literary work), the pictures and photographs shared (as artistic works) and any podcasts or video casts shared (as sound recordings or cinematographic films).

When you are thinking about using someone else’s creative item, you will need to think about the different layers of copyright that might apply to it and that you may need to seek permission from several different copyright owners.

While it helps to remember that different layers of copyright can be owned by different people, often they are not, either because the same person created the different layers (e.g. the musician who writes their own music and their own lyrics) or because copyright ownership is combined in one entity by contract. For example, recording studios will often require musicians to transfer copyright ownership in the musical and literary works to the recording studio, which already owns copyright in the sound recording. Then the recording studio owns the entire copyright in the song. The same goes for publishers and authors with respect to books.

This can be a lot to take in. But don’t stress! I’ve got posts on copyright ownership (and how it can be altered by contract) and how to ask permission from a copyright owner coming up soon. 🙂

Photo credits: Clockwise from top left: Music by photosteve101, www.planetofsuccess.com/blog/, licensed under Creative Commons BY 2.0, Paintbrushes by John Morgan, licensed under Creative Commons BY 2.0, Books by Chris, licensed under Creative Commons BY 2.0, “Maskerade-0” by Florian Knorn, licensed under Creative Commons BY NC SA 2.0

There is no copyright in ideas

June 9, 2014

Photo by Tsahi Levent-Levi, licensed under Creative Commons BY 2.0

In March, the author Elizabeth Gilbert, most famous for writing Eat Pray Love, visited my hometown and I was lucky enough to see her speak at the Brisbane Powerhouse. Elizabeth’s talk was about creativity and ideas.

Elizabeth speaks about ideas as though they have a mind of their own; she emphasizes that the idea chooses the writer, not the other way around. She told a story to demonstrate her point:

Several years ago, after a long time searching for an idea for a fictional novel, Elizabeth came up with a brilliant one. She began plotting a story about a middle-aged lady in the midwest USA who is made to go down to the Amazon jungle in Brazil to search for the son of her boss, who has gone missing down there. However, before Elizabeth could write the novel, circumstances intervened. Life got very messy very fast when her now husband then Brazilian lover was deported from the United States. That story is the subject of Elizabeth’s book, Committed. Needless to say, the fictional novel got put on the back-burner. And when life calmed down again and Liz tried to return to her novel, she found that the idea was gone. Or more accurately, the essence of something magnificent that had excited her and pulled her forth into writing the story was now missing. It had left her while she was busy doing other things. She never finished the novel.

Fast-forward to another day. Elizabeth is having coffee with her writer friend, Ann Patchett. Ann tells Liz excitedly about a new book she is working on – it is about a middle-aged lady from the midwest USA who is forced to go down to the Amazon jungle in Brazil to investigate the death of her colleague down there. As Elizabeth described it, the similarities between the two stories were uncanny and well beyond generalities or coincidences.

Elizabeth’s theory is this: ideas do not belong to us. They come to us to be expressed, and it is our job to express them. But if we don’t, if we dally too long, the idea will move on to someone else who will put it out in the world. It is not the idea’s fault – it just wants to be expressed. It is not the other person’s fault – they have not stolen the idea, they are just doing the idea’s will. This is what Liz believes happened with “her” idea – it got tired of waiting around for her, so it found Ann. Now the idea is expressed in Ann’s novel, State of Wonder.

Elizabeth touches more on these thoughts in her popular TED talk.

The Amazon, photo by Carla Arena, licensed under Creative Commons BY-NC 2.0

I started this post with that story because I think it aptly captures copyright’s attitude to ideas. One of the most important rules at the heart of copyright law is that copyright protects expression and not ideas.

What this means is that copyright will protect the way in which Ann Patchett has expressed her story – the turns of phrase, the way she has ordered words to describe something – but it will not protect the idea of a story about a midwestern woman travelling to the Amazon jungle. If Elizabeth Gilbert really wanted to she could finish the story she started. The idea does not belong to Ann, or Liz, or anyone.

Some people get quite upset when they find out that they can’t protect their idea, or that there is not much they can do about that person who has “stolen” their idea. But when you think about it, this rule makes so much sense. Can you imagine if you could never write a story about star-crossed lovers because Shakespeare (or probably someone before him) got there first? Or about child wizards at a magic school because JK Rowling (or certainly someone before her) already did it? Or imagine if one person had control over the idea of taking a photo of someone doing yoga poses on the beach? It would be absurd.

Ideas are supposed to be free, to belong to everyone and no-one. Copyright law keeps it that way, by only protecting the very particular ways in which ideas are expressed.

Want more? Here’s Seth Godin on why he wants you to steal his ideas.

June 2, 2014

To be protected by copyright, your content has to be original.

When copyright talks about originality, it doesn’t mean that what you create has to be completely new + novel. You don’t have to be Picasso or Mozart or Hemingway. We all know that creative works are iterative – we build on what has come before.

What copyright means when it talks about originality is that the content originates from YOU. You made it; it’s yours. You didn’t copy it from somebody else.

(This always reminds me of a school teacher lecturing students to “Keep your eyes on your own work!” and “Don’t copy the person sitting next to you!”). Copyright originality is a bit like that.

The general rule is that if you created the content, then it’s original.

What does this mean practically for bloggers? Most of us will draft the words in our blog posts ourselves, so those will be original. The same goes for photos we take ourselves. But for photos and images we source from other blogs, Pinterest or Google Image Search – no.

Even though this seems pretty simple, originality is one of the most complex parts of copyright law. This is because sometimes it’s difficult to say whether we have truly created something ourselves or not. For example, take the graphic above. I’ve taken a quote from Mark Twain and put it into a template I got from canva.com. Reasonable minds could differ about whether this is original or not. Some might say that simply putting someone else’s words into someone else’s template does not produce an original work. Others might say that there is some originality involved in the selection and artistic arrangement of these elements. Unfortunately, we don’t have clear case law directly on this point so we don’t really know on which side the law would come down.

Don’t let this scare you, though. For most of the things that you do, you should be able to tell, through common sense, whether the work originated from you. It just helps to know that sometimes originality can be murky and open to debate.

Interested in learning more about originality, or more specifically, how nothing is truly original? I highly recommend this TEDx talk (11 mins) by Austin Kleon. See also the fifth golden rule of filmmaker Jim Jarmusch: Nothing is original.

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