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What is Original in Copyright Law?

In casual conversation or art criticism, we tend to use the word original to describe a new work that stands out for one reason or another. But in the world of copyright law, original is not that kind of judgment. Instead, it is a minimum standard for claiming authorship in a work. In fact, the legal standard states that a work must show a “modicum of creativity” for copyright rights to attach to the work.

Because of this low threshold for originality, the Copyright Office does not reject most works for registration on that basis. For instance, no registration specialist is going to read your screenplay and decide it’s a story that’s “been done too many times” and then reject it. By contrast, a visual artwork that consists of nothing more than a circle in the middle of a square (or a banana duct-taped to a wall!) can be expected not to reach the originality threshold.

What Type of Work?

If this sounds like originality considerations vary depending on the type of work, they do. For instance, with a graphic design that contains a word or two, the words’ meaning, no matter how clever, will not be considered; only the design elements in the visual work will matter in assessing its copyrightability. Another field that often entails the most difficult questions is applied art. When an object has both a functional purpose and creative elements, the Copyright Office will consider only the creative elements independent of the utilitarian function of the item.

Think of a glass-blown vase and whether it can legitimately be considered a sculpture separate from its function as a vase. The functional elements will be discounted by the Copyright Office. Similarly, designs intended to be used for fashion or wardrobe—e.g., textile patterns that can be registered as visual works—may be protected, but these elements are viewed separately from their assembly into useful clothing. Thus, a whole dress, with its necessary elements of neckline, waist, length, etc. forms a useful article, which will not be protected.

Although there are very few hard rules about originality, one that comes up a lot is titles. The Copyright Office has a categorical rule that titles, individual words, and short phrases are not copyrightable. So yes, you could write a book and give it the title, Harry Potter and the Order of the Phoenix without infringing copyright. But you better make sure it’s about a cab driver in Arizona or some other subject matter very different from a boy wizard!

Overall, rejection of registration for lack of originality is not very common. At the same time, the Copyright Office does not often reverse these decisions, and requests for consideration cost additional fees. If you have doubts about whether a particular work would be considered original, seek the advice of an experienced copyright attorney, including the legal services offered by any organization to which you may belong.

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SCOTUS Decision a Win for Copyright Owners

This morning, in the case Warner Chappell Music, Inc. v. Nealy, the Supreme Court decided how far back a plaintiff can recover damages for copyright infringement. The decision is a win for copyright owners.

A Decade of Infringement

The Copyright Act has a statute of limitations of three years, and it is generally agreed that this time begins to run from the moment a plaintiff discovers, or should have discovered, the infringement. The issue in this case is how far back can the damages calculation go? Nealy discovered the infringement and filed suit within three years of that discovery, but the infringement had been ongoing for a decade.

The District Court ruled that damages could also only go back three years, but the 11th Circuit reversed and held that damages can be calculated from the beginning of the infringement. This is known as the “discovery rule.” Today the Supreme Court upheld the discovery rule, allowing creators to obtain damages for infringements of their work for as long as the infringement has been running–as long as they file their infringement suit within three years of discovering the infringement.

This matters to you even if you never go to court., When you are negotiating with someone who used your work without permission, they now face the prospect of a larger damages award if they call your bluff and end up in litigation..

And remember, registration with the Copyright Office is required before you can file an infringement suit. So, whether you plan to sue or just want the option, get those works registered!

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AI and Copyright Registration

If you’re feeling confused about copyright and artificial intelligence, you’re not alone. Many of the issues and conflicts related to this topic are going to work their way through lawsuits and policy changes over the next few years. Meanwhile, the Copyright Office has issued guidelines for registering a work that contains some element(s) produced with generative artificial intelligence (GAI). Although the guidelines themselves are a bit confusing, here are some key points:

Registration Requires Human Authorship

First, be aware that the Copyright Office position is that any material entirely produced by GAI (i.e., has no human authorship) is not protected under U.S. copyright law, and they will not register it. Material produced through a combination of human authorship and GAI may be protectable, if the human authorship is sufficient. So, the Copyright Office requests that an applicant disclose anything in their work that was produced by AI and to describe the human authorship that was added.

Disclaiming AI in a Registration Application

The Copyright Office guidance on how to communicate this is based on the same principle as limiting your claim—i.e., a way of telling the Copyright Office that some element(s) of the work are not your authorship. A simple example might be a book you wrote with illustrations produced by GAI. Just like any other Limit of Claim, you can tell the Office that you are claiming copyright in the Text and are disclaiming copyright in the Artwork thus:

Additionally, you can further explain to the Office that what is being disclaimed is GAI material. So, for instance, in a note to the Examiner/Specialist, with the above example, you might write, “The illustrations in this book were created using artificial intelligence.” You need not be more detailed than that.

Alternatively, you might register a book containing your writing, some artwork you created, and some artwork that was produced with GAI. Here, you would state that, in addition to the Text, you both claim and disclaim Artwork thus:

And then, you would tell the Office something like, “Some of the artwork was created using artificial intelligence.”

A more nuanced example might be a single visual work that combines your authorship with the use of GAI. Here the limit of claim page might look like this:

But in your description to the Office, this is where it is important to emphasize your contributions to the work. Again, you may not need to go into elaborate detail. The goal is to make a good-faith declaration that at least some aspect of the work was generated by artificial intelligence and some by human authorship.

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5 Reasons Photographers Should Build Copyright Registration into the Budget

It’s affordable.

As an afterthought, any kind of fee might seem pricey. But when you’re planning a project, accommodating less than $100 is probably easy. And because that will cover the registration of up to 750 images on one application, you can protect the photos from a whole job, or possibly more than one job.

It’s a high-value practice.

For example, a group of 100 images costs less than $2 per image to register. But the value of a copyright infringement of just one of those images may be thousands, or tens of thousands, of dollars. Most claims settle out of court—and for a lot more than $2—but what motivates settlements is that registration number issued by the Copyright Office.

It makes contracts meaningful.

You know the old saying about a contract not being worth the paper it’s printed on. Well, this cliché just might apply to that paragraph about retaining your copyrights—if you don’t register the photos. Without registration, your remedies for infringement are so limited that you may not be able to enforce the rights reserved by contract.

It’s good for business.

When you register your photographs, you protect yourself and your clients. If you do commercial work, for example, and some other business uses a photo in a way your client doesn’t like, their best remedy may be helping you enforce your copyright rights. If so, they will truly appreciate your diligence in taking care of registration.

It’s easy with RightsClick.

In a matter of minutes, you can submit a group of several hundred photographs for registration from your RightsClick portfolio, and your application is usually filed with the Copyright Office within 24 hours. You will avoid the hassles of the registration system, and you will build and organize your portfolio according to copyright-relevant information you will need if enforcement becomes necessary.

Click here to learn how easy it is to make copyright registration part of your workflow!

Taking Action: DMCA Takedown & Responding to the Infringer of Your Work

When you discover an unauthorized use of your work on a website, there are often two separate but related steps you can take. RightsClick is designed to help you do both and to help you keep track of these actions in your already busy schedule. First, it is essential to understand the difference between the web platform hosting your work and the party who made improper use of your work—because they may not be the same.

For instance, when someone uploads infringing material to a site they don’t own or control (e.g., to YouTube) that person or business is the infringer, and the website is not generally not liable. One action we recommend against is taking your complaint straight to social media to shout at the infringing party. Instead, as the copyright owner, you may wish to take both of the following steps:

1) send a DMCA takedown notice to the hosting web platform to request removal of your material; and

2) consider legal action against the party who used and uploaded your material without permission.

Taking both actions in RightsClick begins with the Infringement Assessment in the Enforcement menu. The Infringement Assessment tool is a simple form you fill out in a few minutes that will guide you in evaluating the strength of your claim, as well as store important information you will need later. RightsClick will then generate an Assessment Summary and give you options to take immediate action, including sending a DMCA takedown notice; sending a preformatted Cease & Desist (C&D) notice to the infringer; or to initiate contact with an attorney—either one you already have, or one listed in RightsClick.

DMCA Takedown

A DMCA takedown notice only requests that the material be removed from the platform. The notice must contain certain information and truthful statements; it must come from a copyright owner or his/her lawful agent; it must be sent to the platform’s registered DMCA agent; and the platform provider is expected to comply with a valid notice. The enforcement tools in RightsClick include a preformatted DMCA notice and simple tools to help you quickly send a notice to the correct registered agent. The information entered into the Infringement Assessment tool will automatically fill out the DMCA notice for you to send to the registered agent. Plus, a calendar item will be added to your To Do list reminding you to follow up—for instance, to confirm whether the platform complied with your request.

Cease & Desist Notice

You may also choose to contact the individual or business that made unlicensed use of your work to resolve the matter. Once you identify this party, and obtain at least a valid email for them, you can take certain steps yourself to try to resolve the matter quickly (and for free!) before deciding whether to contact an attorney.

Again, the information captured in the Infringement Assessment tool can be used to generate a pre-formatted C&D email sent by you to the party who made infringing use of your work. You can choose to demand only that the use stop; demand that the use stop and that the party pay you a fee of your choosing; or state that you will allow the use for a period of time for a fee of your choosing. All three of these options are available in the built-in C&D tool.

The C&D notice is stored in your Portfolio, associated with the specific Title. The notice is sent via your email, and you keep 100% of any payment by the party who made the unauthorized use. It’s your work and your money. That’s the philosophy on which we built RightsClick!

In building these enforcement tools, our theory was that if you can respond to, say, 10 infringers in the minutes between your real working hours, and if even just a few of those parties resolve the matter by paying you, the time spent will have been more than worth the minimal effort. Also, if you wish to contact an attorney—either right away or after failing to resolve the matter through C&D—you can research and make contact with attorneys in the list we provide and then send them the Assessment Summary to get the conversation started. You can also print or download the Summary to send to any attorney of your choosing.

And, as we continue to preach from the rooftops, ALL your efforts to remedy infringements are made stronger when your work is registered with the U.S. Copyright Office.

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Understanding Limit of Claim in Copyright Registration

When you submit an application to register your work, the Copyright Office asks you to state what you authored and also to “limit” your claim by noting elements of the work that are either someone else’s authorship, or even your own prior authorship. While that can be confusing, it’s actually not too hard.

Claiming copyright in your work while excluding (or disclaiming) someone else’s authorship is pretty straightforward. For example, if you wrote a book that includes photos or illustrations that are other people’s works, you don’t need to tell the Copyright Office who made those works, when they were made, or how many of those works there are. In this example, you would simply disclaim the visual works to inform the Copyright Office that you are not claiming those as part of the book being registered.

This same principle applies when you have created a derivative work,* such as an authorized screenplay based on someone else’s novel or a book sequel in a series you did not originate.. In these examples, you have written new material based on the characters, and perhaps the plot elements, from someone else’s work. Here, you would simply check the “Limit of Claim” boxes to indicate that you are disclaiming literary elements (the prior author’s work) and also claiming your new authorship. If you want to explain any specifics, you can do so in the note to the examiner so they understand more fully.

You are also asked to disclaim your own prior authorship of any elements in a new work being registered. This is because copyright law considers each work to be distinct, and in each work, only the new authorship is protected. For instance, The Cat in the Hat Comes Back has its own registration, but only for the new creative work that was not already registered in the original The Cat in the Hat.

A related question we hear often is whether any changes to a prior-registered work always requires a new registration. You might make edits to an unpublished manuscript or change the color work on a photograph or add a key change to a musical work that was previously registered with the Copyright Office. In many instances (e.g. minor stylistic edits), a new registration is not necessary. The question depends on the extent to which you have created new material that is potentially vulnerable, on its own, to infringement and should, therefore, be registered. On this subject, it’s a good idea to seek the advice of an attorney. In fact, because different expressive media imply different considerations, this is an excellent question for the legal services provided by your advocacy organization, if you are a member.

Finally, the Copyright Office also asks whether the disclaimed work has a registration number. This is something you are more likely to know about your own work than someone else’s work, but you can search the registration records. The registration number of the disclaimed work is not required, but if supplied, it can help maintain a more accurate record.

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Tepp to Speak on NY Times v. OpenAI

On Tuesday, March 12 at Noon EDT, RightsClick co-founder Steve Tepp will join a panel discussing the copyright case NY Times v. OpenAI. The Times alleges copyright infringement by parent company Microsoft and its OpenAI subsidiary, which operates the ChatGPT generative AI platform.

Like many authors and other creators, the Times is suing for the unauthorized scraping of their protected works for the purpose of building a generative AI system, which, some cases, provides outputs that are substantially similar to the works ingested.

Tepp will discuss the two main legal issues in the case: whether OpenAI’s scraping of works involved “reproduction” under the Copyright Act and, if so, whether OpenAI has a viable fair use defense. On the first point, it seems clear that Open AI must have copied the works, and the only reason there can be any question about this is the lack of transparency as to how developer operates. We’ve seen this tactic before — hiding the details of the technology in ways that frustrate law enforcement. But it isn’t credible and Tepp doesn’t believe it will work.

The fair use question is the bigger one. Others on the panel are expected to argue that generative AI systems are so useful in general that the manner in which they were built should be overlooked. Tepp disagrees. In fact, the Supreme Court’s most recent copyright decision, Warhol Foundation v. Goldsmith, makes it clear that doing cool stuff isn’t enough to justify trampling creators’ rights. And just as RightsClick is a tool to help creators protect their rights, Tepp will be a voice for protecting creators in the courts.

You can register here to register for the webinar. There will be a Q&A session following the discussion.

The “c” in a circle: © is is a world-famous symbol, and yet it is no longer required for protecting works under U.S. copyright law. In fact, this has been true for many years, but here are some things about what the legal profession calls “copyright notice” that you should know:

For eighty years – from 1909 to 1989 – works published in the United States would only be protected under the federal Copyright Act if they were published with proper copyright notice. A proper notice included the name of the copyright owner (often but not always the author), the year of first publication, and yes, that famous © symbol.

It probably won’t surprise you that many works lost their copyright protection because the copyright owner forgot the notice or applied it incorrectly. In fact, things got so out of hand that the courts often devised rationales for finding that a work had not yet been published. Thus, the notice error did not void protection. Perhaps the most famous example involved litigation over Rev. Martin Luther King’s “I Have a Dream” speech. Written copies of the speech had been distributed to the press covering that historic event, but the court held that those distributed copies were not sufficient publication to have required the copyright notice. So, Dr. King won, and his heirs continue to control the copyright rights for the speech.

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In order to avoid the injustice of losing copyright rights due to mistakes with the notice requirement—and also comply with international copyright agreements to protectU.S. works around the world—Congress abolished the notice requirement altogether. Consequently, although many creators still use the © to remind people that their work is protected, any work published in the U.S. after March 1, 1989 no longer requires the notice as a matter of law.

BUT it is worth considering that even today, a copyright notice is not completely meaningless. If your work is registered with the Copyright Office prior to an infringement , you can elect “statutory damages,” which means you do not have to prove financial harm suffered as a result of the infringement. ,The court will instead pick from a range in the law (currently $750-$30,000) per infringed work for ordinary infringements. However, in some cases, where the infringer can prove they had a good faith belief that their use was not infringing, statutory damages can be reduced to zero. But if there was a copyright notice on the work, that can defeat the “innocent infringer” reduction of statutory damages.

Finally, although placing notice of copyright is not required, anyone who knowingly removes Copyright Management Information (CMI) for the purpose of facilitating infringement is breaking the law. So, the bottom line is that a copyright notice (e.g., © Your Name, Year) can’t hurt and might even help. But most importantly, register your work before you put it out in the world, or you give up key enforcement tools under U.S. law.

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Did You Publish Photographs in 2023?

As the year draws to a close, we want to remind photographers in particular about group registration of published photographs. Ideally, your work is best protected when it’s registered with the Copyright Office before it leaves the studio. But deadlines and schedules being what they are, we know that registration often slips through the cracks.

Fortunately, a work can be registered at any time during the term of its protection under copyright, which is your lifetime plus 70 years.[1] Additionally, photographers have a unique advantage because photographs can be registered in groups of up to 750 images per application. This is true whether the photos are published or unpublished, but there are two limitations to keep in mind.

First, no mixing. A group photo registration application must contain all published OR all unpublished images. Second, a group of published photos is restricted to images that were first published in the same calendar year. That’s why we wanted to reach out at this time.

To be clear, you are allowed to register 2023 published photos next year, or at another time in the future. But we’ve met more than a few photographers who’ve let the backlog pile up and then try to remember When was that photo was first published? And we get it. The organization process of sorting through backlog is more work than registration—especially if you register through RightsClick, which is so easy.

Finally, we want to remind photographers that published work is likely to be most vulnerable to copyright infringement. And registration is the only path to the full range of remedies — from settlement to litigation.

[1] U.S. law.

Unsure about the meaning of “Publication”? You’re not alone. Learn more here

Are you a Capture One user? Get the RightsClick plugin today and make the process from edit to registration even easier!

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The “Server Test” – A Shell Game in Copyright Law

Suppose you come across one of your images on a news site, blog, or promotional site– a common occurrence for many creators. You’re certain that you didn’t give permission to use the image, but when you contact the site owner about the use, they tell you it isn’t on their website. But of course, it is! You can see the image right there. What are they talking about? Well, they might be referring to the “server rule” or “server test”—a controversial topic in copyright law you should know.

According to the 9^th Circuit, covering California and about a dozen other western states), infringing the “public display” right does NOT depend on whether you can see the image on the website, but whether the image is actually hosted on the owner’s computer (i.e., server). For instance, if a news site links to your image hosted on Instagram or Twitter but does not store a copy on its own server, the 9^th Circuit considers this like hotlinking articles, and under this “server test,” considers the display non-infringing. The “server rule” was just re-affirmed this past Summer in a case captioned Hunley v. Instagram. Copyright attorney Aaron Moss has a thoughtful blog on the subject if you want to learn more.

Prominent copyright scholars Jane Ginsburg and Luke Budiardjo have criticized the “server test,” and in a few recent cases, the 2^nd Circuit (New York State) disagrees with the 9^th and thinks if anyone can see an image on a website, then gosh, that website is displaying the image publicly. This makes a lot more sense to us. But the 9^th Circuit isn’t backing down. So, when we built the RightsClick Assessment tool to help you evaluate the strength of a possible infringement claim, we included a question to help you think about the “server test.”

Meanwhile, the Hunley case is on appeal and when different courts take opposite approaches, that is often the kind of dispute that will eventually be appealed to the Supreme Court. That is still a ways off, but we’ll be watching for news on the “server test” and will keep you posted!

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