Disclaimer: The information contained in the
Copyright FAQs constitutes legal information and not legal advice. The
reader assumes all responsibility for any and all use of this information.
Please consult a licensed attorney for specific questions. This FAQ may be
periodically updated.
What is intellectual property?
Intellectual property is an umbrella term referring to commercially valuable
creations of the mind. These creations include inventions, artwork, symbols,
names, and designs. Intellectual property protection options include
copyrights, trademarks, and patents. The appropriate protection option
depends on the work itself. For example, a copyright may protect creative
expression such as a painting, a book, or a jewelry design. A trademark
may protect a word, logo, symbol, or design that identifies the creator of
a product. A patent may protect new technological innovations.
What is a copyright?
Copyright is a form of protection grounded in the U.S. Constitution for
original works of authorship fixed in a tangible medium of expression.
Copyright protects, for example, literary, dramatic, musical, and artistic
works, such as paintings, sculptures, poetry, novels, movies, songs,
computer software, and architecture. Copyright covers both published and
unpublished works. With exception, copyright protection exists from the
moment of creation and lasts until 70 years after the death of the creator.
How is a copyright different from a patent or a trademark?
Copyright protects “original works of authorship,” while a patent
protects inventions or discoveries. Copyright protects creative expression,
whether that expression is in the form of, for example, a painting, a book,
or a sculpture. 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.
For example, I don’t have to open a box of cereal or read the ingredient
list to know the quality of the cereal. By looking at the logo on the box
I know who made the cereal and I know what to expect. The logo on a cereal
box is probably a trademark while the artistic design on the box is
probably a copyright. The cereal is probably breakfast…or lunch…or dinner.
Ok, the cereal is every meal.
When I have a copyright, what rights do I have?
Generally, the copyright owner has the exclusive right to and to authorize others to:
Reproduce the work;
Prepare “derivative” works based on the work;
Distribute copies of the work;
To perform the work publicly, in the case of, for example, musical works;
Display the work publicly, in the case of, for example, musical works; and
In the case of sound recordings, to perform the work publicly by means of
a digital audio transmission.
What is a derivative work?
A derivative work is a copyrightable creation, which is based on one or more
existing works. Only the holder of the copyright of the original can produce
or give permission to another to create the next version. A derivative work
usually involves a transformation. For example, a film based on a book is
likely a derivative work.
What is not protected by copyright?
Copyright protects expression. Copyright does not protect ideas. Copyright
does not protect facts, systems, or methods of operation, although it may
protect the way these things are expressed. Copyright does not protect
titles, names, short phrases, slogans, familiar symbols or designs, mere
variations of typographic ornamentation, lettering, coloring, or mere
listings of ingredients or contents.
Copyright does not protect the mechanical or utilitarian aspects of a design.
A “useful article” is an object having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or to
convey information. Examples are clothing, furniture, machinery, dinnerware,
and lighting fixtures. A useful article may have both copyrightable and
uncopyrightable features. For example, a carving on the back of a chair
might be protected by copyright, but the design of the chair itself might
not be protected by copyright. Some designs of useful articles may qualify
for protection under the federal patent law.
Finally, copyright does not protect works that are too old, and therefore
have fallen into the public domain.
What is the public domain?
For works created after January 1, 1978, copyright protection generally
begins at the moment of creation and lasts 70 years after the death of the
author. After this time, the work loses protection and falls into the
public domain. Certain works that were created but not published or
registered with the copyright office before January 1, 1978 lose
protection 50 years after the author’s death.
Even if a work is in the public domain, under private-property laws, the
owner may still restrict access to the work. For example, Vincent Van
Gogh’s painting “Starry Night” is in the public domain,
but an image produced by the Van Gogh Museum in Amsterdam is protected.
When in doubt, ask permission before you use a pre-existing work.
How do I know if my design is an unprotected idea or copyright protected expression?
Pursuant to the idea/expression doctrine, copyright protects only the
expression of the idea–not the idea itself. It may be difficult to
draw the line between an idea and expression. For example, in California,
the court denied protection for a jeweled pin that was in the shape of a
bee. The court determined that a jeweled bee pin was an idea and not
expression. The court found there were limited ways to make such a pin. The
premise of this court ruling seems hard to believe. But that's what the
court held. To the court, a jeweled bee pin is an idea and as such is not
protected via copyright.
Do I have to file any forms for copyright protection?
No. In the United States, copyright protection automatically exists from the
moment the work is created. However, it is suggested to register your work
with the U.S. Copyright Office. It is highly suggested to register you work
within three months of publication (posting an image on the Internet may
constitute publication).
Why should I register my work if copyright protection is automatic?
If registration is made within three months after publication (posting an
image on the Internet may constitute publication) and prior to an
infringement of the work, statutory damages and attorney’s fees will
be available to the copyright owner in court actions. Statutory damages
are set by law and therefore are easier to prove than actual damages, where
you would have to prove, for example, lost profits. In other words, if you
register for copyright before your work has been on the Internet for three
months, and someone infringes, it may be easier to prove that you’ve
been harmed.
If you register after the three-month window, you will not necessarily be
entitled to statutory damages or attorney’s fees. You will have a
heavier burden of proof as you will have to show actual damages, which are
difficult to prove.
Also, when you register for copyright you will receive a certificate of
registration (to show your family and friends) and registration creates a
public record (so that strangers can look it up). If registration occurs
within 5 years of publication, it is considered excellent evidence in a court of law.
Wait, do I even own the copyright in the work I created?
Maybe not. If you prepare a work as within the scope of your employment
(a work made for hire) your employer might be the “author” of
the work. Also, if you prepare a custom commissioned work for certain uses
and you expressly agree in a signed written instrument, the work may be
considered a work made for hire. In these cases, your employer or the person
who commissioned the work might be entitled to the copyright rights. The
authors of a joint work are co-owners of the copyright in the work, unless
there is an agreement to the contrary.
How do I register for copyright protection?
U.S. copyright registration currently costs $45 (fees are subject change)
for a group of works, consists of one form and requires zero lawyers. The
exact form to use depends on the type of work you are registering. For
example, Form VA is for visual arts registration, Form TX is for literary
works, Form PA is for performing arts, and Form SR is for sound recordings.
To be safe, it’s advisable to register your works for copyright at
least four times a year (that’s every three months). The current
forms are found for free on the U.S. Copyright website,
www.copyright.gov.
To register you need to mail the form, payment, and one or two copies or
photos of each work to the copyright office. The copies or photos are called
the deposit requirements. The number of copies depends on the exact type
of work (for example, a piece of jewelry or an unpublished literary work)
you’re registering. The form each contains plain English instructions
and provides information concerning the deposit requirements. Also,
according to the copyright office, you will soon be able to register online.
Should I register for copyright even if I keep accurate documentation of my
work, take screen shots, date everything, and mail myself my photographs
and keep the mail without opening the envelope?
Yes. It is always advisable to register. All of these methods are great ways
of keeping track of your work but, as explained in this FAQ, there are
benefits to copyright registration.
After I fill out the form and send it in, how long will it take to get my certificate?
According to the copyright office, it can take up to six months to receive
your certificate of registration in the mail. You read that right, six months.
What is a copyright notice? Do I need to put one on my work?
What is my liability if I sell counterfeit (knock off) goods?
Etsy prohibits the selling of counterfeit goods. Please do not sell them. A
seller may be held liable for selling counterfeit products if the seller
knows or has reason to know that the products are counterfeit. If the
seller fails to inquire about the authenticity of the products, for fear
of what such inquiry may yield, this may constitute knowledge. Once
knowledge has been established, a reseller of counterfeit products may be
held liable for counterfeiting.
How can I allow someone to use my work?
As explained above, the owner of a copyright has the exclusive right to
reproduce, distribute, perform, publicly display and make a derivative work.
The copyright owner may enter into an agreement with another individual and
grant this person one or more of these rights.Although an
agreement may be oral, there are inherent benefits to a written agreement.
It’s up to the two parties to agree upon the details, for example, what
rights to grant, what timeline is appropriate, and what, if any, fees to charge.
When I sell an item, what happens to my copyright?
When you sell or give away a copyrighted item, unless you have a contract
specifying a transfer of one or more of your copyright rights, you are only
selling the physical item, not any of your rights. For example, when I sell
a necklace, I am only selling the piece of jewelry. The buyer is not
entitled to the exclusive right to duplicate the necklace without my express permission.
However, pursuant to the first sale doctrine, the buyer of a
lawfully made item may re-sell that item or otherwise dispose of the
possession of that copy without the express permission of the copyright
holder. For example, when an individual buys a necklace from me, that
person may re-sell that necklace without getting my permission.
What’s the fair use defense?
The fair use defense is a way to defend an allegation of copyright
infringement. In essence it’s a way of saying “yes, I infringed,
but I have an excuse.” The fair use defense rests on the theory that
an individual should be excused due to public policy reasons such as the
copying benefits society due to educational purposes or if the copying is
considered commentary, criticism, news reporting or scholarly reports. If
the copying is for commercial use (if an artist copies and sells the work),
this fact weighs against the finding of fair use.
Many artists use the fair use defense as a loophole to copy. This is not
wise. Artistic uses are not explicitly protected by fair use. The fair use
defense is complicated and difficult to prove.
May I use a tiny bit of someone else’s work in my work?
In some cases, that court will permit copying, even without conducting a fair
use defense analysis, if the amount copied is extremely small (de minimis).
The theory is that this type of copying does not rise to the level to
constitute infringement. A court may examine whether an average audience
would recognize an appropriation as a qualitatively and quantitatively
significant portion of the copyright holder’s work as a whole. Just
like with fair use, there is no bright line test for determining a de minimis use.
What is copyright infringement?
Generally, copyright infringement occurs when a copyrighted work is reproduced,
distributed, performed, publicly displayed, or made into a derivative work
without the permission of the copyright owner. Someone may infringe even
without making any money.
What do I do if I think my copyright has been infringed?
It can be frustrating to discover a similar piece of art to yours. However,
ideas are generally free to copy. And the line between an idea
unprotectable via copyright) and expression (protectable via copyright) may
be difficult to draw. Artists may be inspired by other artists, previous
art, and the world around them. For example, Cezanne is thought to have
inspired Picasso’s cubism period and Boucher, Fragonard and Watteau
inspired Renoir.
Also, copyright protection does not preclude another author from creating
independently authored, yet identical, works. Copyright does not protect
everything. For example, copyright does not protect facts, processes or
utilitarian aspects of a design.
If you see infringement of your copyrights or other intellectual property
rights on Etsy, you may contact the other person to try to work it out or
talk to an attorney. You may also provide Etsy with the information specified
in Etsy's Copyright and Intellectual Property Policy (
http://www.etsy.com/copyright_policy.php ). Etsy cannot provide you
with legal advice or legal representation. Please speak with a licensed
attorney in your jurisdiction for legal advice.
What’s the worst that could happen if I infringe?
Please don’t purposely infringe. Even if you do not have substantial
assets, you may be forced to cease publication, shut down your web site, or
even to destroy all copies of art which includes copyright infringement.
How much do I have to change in order to claim copyright in someone else's work?
There’s a myth that if you change 30% of some else’s work, you
will be able to claim a copyright in that work. This is a myth. Only the
owner of copyright in a work has the right to prepare, or to authorize
someone else to create, a new version of that work. Accordingly, without
the owner’s consent you cannot claim copyright to another’s
work, no matter how much you change it.
What if I’m outside of the United States?
These FAQs relate to the law of the United States. However, the United States
has copyright relations with most, but not all, countries throughout the world,
and as a result of these agreements, the U.S. honors certain other copyrights.
For a listing of countries and the nature of their copyright relations with
the United States, visit www.copyright.gov
and see Circular 38a, International
Copyright Relations of the United States.
What if I don’t see answers to my specific question?
As you’re probably aware, the law is very complicated may vary from
situation to situation, place to place, and even judge to judge. These
topics have been argued and theorized by legal researchers, attorneys, and
judges for many years. And laws are always evolving. And sometimes a factor
that may seem unimportant may be actually very important. As always, do your
research, exercise good faith, treat others as you would want to be treated.
If you need further assistance, talk to a licensed attorney. This FAQ will
be periodically updated to incorporate new issues that arise.
