The Digital Millennium Copyright Act

The Digital Millennium Copyright Act was enacted in 1998 to update copyright law in matters dealing with the electronic/digital environment. Its principle features focus on limitations on infringement liability for service providers and prohibitions on circumvention of technological protection measures. Online education environments are greatly affected by the act provisions. Educational institutions are generally considered as service providers for purposes of the act.

Students can become rather creative when designing websites using educational institution equipment, software, and access to the Internet. Service providers receive certain protections from liability and “notice and takedown” procedures must be strictly and timely followed. Any copyrighted works that are infringed upon by a student using educational institution resources is subject to the act.

If a copyright owner discovers that their copyrighted work is up on a website supported in some way by resources of an educational institution, the copyright owner must file a notification of alleged infringement under penalty of perjury and in accordance with the statutory requirements for notification under the act. Upon receipt of notification, the service provider must swiftly remove or block access to the material identified in the notification or face loss of protection under the act. If the service provider complies, the service provider is then exempt from monetary liability. The act contains special provisions for non-profit institutions for certain acts on the part of instructors and graduate students and considers them “a person other than the provider” and affords protection to the educational institution under the following conditions:

(a) The faculty member or graduate student’s infringing activities do not involve providing access to course materials that were required or recommended during the past three years.

(b) The institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing.

(c) The institution provides all of its users with informational materials describing and promoting compliance with copyright law.

The DMCA is divided into five titles:

1. Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.

2. Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.

3. Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.

4. Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.

5. Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.

There are many facets to the act that cannot be fully discussed in this forum. Suffice it to say, instructors should get with their organizations and their legal counsel to become familiar with the complex intricacies of the act.

In business, it’s all about making money and using a solid set of resources to make it all happen. If you have skills that should be promoted, think about having a Web presence.

How to Write a Cease and Desist Letter and Stop Copyright Infringement

When you own a copyright — whether it be for an article, a song, a website design, or anything else you’ve created that’s eligible for copyright protection — you have certain exclusive rights to your work. This includes the exclusive right to distribute copies of your work or display it in public.

But what if someone is infringing on those rights, perhaps by hosting your song online for free download without your permission or selling copies of your novel?

As the copyright owner, you have the right to sue someone committing copyright infringement — but not everyone wants to react with the full force of the law. It’s possible that you’re not out to collect damages or lost profits: you just want the infringement to stop.

How to Write a Cease and Desist Letter

Your cease and desist letter should contain the following elements:

  1. The date
  2. Your name and address
  3. The name and address of the person committing copyright infringement
  4. Your official copyright registration number
  5. The official title of your work as written on your copyright registration
  6. Your date of copyright registration
  7. A statement to the effect that you are entitled to ask the court to award you damages under US Copyright Law
  8. A statement that you wish the infringement to stop immediately, and that if the copyright infringement does not cease, you will pursue the remedies granted to you by US Copyright Law

It’s usually a good idea to send a copy of the cease and desist letter to the copyright infringing party, as well as his or her lawyer. Of course, you will also retain a copy yourself.

Copyright Registration

We often receive enquiries about how to apply for copyright protection, and many people are surprised to learn that in fact they do not need to apply at all. Copyright subsists automatically in literary, dramatic, musical and artistic works, films, sound recordings, and the typographical arrangement of published editions. Literary works are taken to include computer programs, databases, and other compilations.

Although there is no formal registration process in the UK, there are some steps which may be taken to ensure that you are able to protect your work against copyists, and increase the likelihood of successful action against an infringer. Firstly, it is useful to assert that the work is copyright, stating the owner of the copyright and the date.

© Your Company Name 2012

By making the above statement, it will be practically impossible for anyone copying this article to argue that they were not aware that copyright existed in the work, making the defence of “innocent infringement” unavailable. Note that it is important to include the date. Since copyright only subsists for a limited time, it might be possible that a person would reasonably believe that the copyright in an undated work had expired.

As well as asserting copyright in your work, it is sensible to keep good records of when works were created and updated. If you can provide objective evidence of how and when the works were created, then this will make successful enforcement more likely in the future. Some unofficial copyright registration services exist, and claim to assist with providing this evidence. However, it is difficult to advise the use of such services, since obtaining a registration will only really prove that you had access to a copy of the work on a particular date. Sending a copy of the work to yourself by recorded delivery and not opening the envelope is likely to produce exactly the same level of evidence. Even better would be a complete and dated record of drafts and source material.

It may also be sensible to consider how you can prove that an infringer has actually copied. Copyright protects only against copying so, if an alleged infringer can argue that they created their work independently and without reference to yours, then they will not be liable. Clearly an exact reproduction of a substantial portion of text would be prima facie evidence of copying, but where changes have been made it may be more difficult to prove that copying has taken place. For certain types of work, it may be possible to set ‘traps’ for a possible future infringer. In a computer program, for example, making deliberate misspellings of some words within the source code would not affect the operation of the program or necessarily be apparent to a user. However, if a similar program appeared in which the spelling errors were the same, it would be more difficult for the accused infringer to convincingly argue that they had not copied.

In the United States, copyright subsists automatically as in the United Kingdom. However, unlike the UK, the US government does provide an official registration service. Registering a work with the copyright office of the Library of Congress affords certain advantages if copyright needs to be enforced in the United States. It is also likely that a Library of Congress registration would provide the same, if not better, evidence of ownership than an unofficial registration service in any jurisdiction.

If you would like further advice on protecting your work, or are interested in registering your copyright in the US, please get in touch. Initial basic advice is always free-of-charge.

Copyright Terms – What Is the Legal Definition of a License Agreement?

Copyright of specific works and the ideal of Intellectual Property are two subjects, especially in our highly technological Internet age with ease of communication, theft and fraud, which are constantly under debate. The discussion on how to protect the rights of an artistic or literary creator from those who would steal works, give them out as their own, or simply market them for profit, has been raging since long before the Berne Convention for the Protection of Literary and Artistic Works was first penned and accepted in 1885 / 1886. The Berne Convention consists of various clauses which define who is entitled to copyright protection, over which term this copyright provision applies and how copyright protection for literary and artistic works is to be handled in countries which have differing laws. The Berne Convention was originally ratified in Berne, Switzerland in December 1887 but has undergone many and varied changes over the ensuing years, with the latest version coming into force in 1988. It has also been complemented by the World Intellectual Property Organization Copyright Treaty, covering information technology and the Internet, in 1988.

Copyright is automatically assigned to the creator of a work regardless of whether this work is registered with a national or international copyright authority or agency and applies from the moment of creation. It may be assigned for a specified length of time, sold permanently with all rights and privileges and inherited, this last when royalties for reproduction of a work are paid. It may apply to individuals or to companies which take over a work for reproduction or are assigned administrative powers, but is completely separate from patent and trade mark laws.

The Copyright License Agreement is a contractual agreement between two parties over the use of a work for a limited or defined length of time. It does not apply just to a completed work, but may be also agreed upon for a work being planned or which is in the process of completion. The Agreement allows a copyright holder to specify who has the rights to market his or her work, once it is completed, for a specific period after which the copyright reverts back to the original holder. It is possible to make separate Agreements for different countries around the world and, in some cases, for differing uses. A work of art, for example, may be licensed to a greetings card manufacturer and, at the same time, to a manufacturer of chocolate products as decoration for the packaging.

A Copyright License Agreement is not to be confused with Copyright Assignment. Here the copyright holder assigns the rights for use and marketing to a third party, to a company or agent in return for royalties or a set sum in financial recompense.

Copyright Law – A Detailed Explanation of the ‘Fair Use’ Clause

Copyright Law, as defined by the Berne Convention, is the right of a creator to the Intellectual Property of their work, to the marketing and general use of that work. It has many different clauses, according to the type of work being copyrighted, but is generally applied to literary works, works of art, music and Intellectual Property, the use of ideas. It does not apply to Patents or Trade Marks which each have their own laws and regulations. A work which is copyright to a specific person or company does not need to be registered, and copyright takes effect from the moment creation is begun through, according to the type of work involved, to many decades after the creator’s death.

For works of literature, including shorter articles and journalism, a certain amount of a work may be used by other people or companies under the principle of Fair Use. That is, a portion of the work for review purposes, as a reference in another work or as a quotation to back up, or refute, another work. Copyrighted works used by others under the principles of Fair Use do not require the approval or permission of the copyright holder.

Whilst copyright is clearly defined by the Berne Convention, the Fair Use principle is subject to many different laws, on a national level, which may differ one from another. The laws concerning Fair Use are different, for example, between the United States and European countries and, although the term Fair Use originated in the United States, it has been a part of British legislation since 1709.

Fair Use of a work is explicitly limited in scope. The taking of a significant portion of a work to produce a new work, even when this new work has additional information added to it, is a breach of the various existing laws. The use of a smaller portion of an original work to enhance a new one, whereby knowledge made available to readers takes primary importance, is considered acceptable in most cases. Courts set up to consider what is Fair Use and what is copyright infringement are required not only to assess the size of the work being used and its placement within a new work, but also the scope of the quoted text. Thereby it has been shown, under United States laws, that a short extract taken from another work which may be considered to contain the heart of that work is a substantial extract, and falls outside the realms of Fair Use.

Fair Use is also limited when the original work is harmed by an extract or publication in another work. Courts have been required to consider whether the publication of a new work containing extracts from another will affect the market potential of the original and, effectively, the possibilities for the original author to gain financial recompense for the original. A new work which supersedes an original, pushing it from the marketplace, but which contains extracts from that work may be judged to fall outside the rules on Fair Use, as the new work potential or substantially harms the author of the first.

It is generally considered, by people using the works of others under a claim of Fair Use, that a certain length – for example, three hundred words – brings usage into the realm of Fair Use. Further, it is believed by some that a non-commercial enterprise using the works of others also falls under the Fair Use rules. In both cases the person using another’s works cannot necessarily claim Fair Use, depending on the nature of what is being copied and the manner in which it is to be used. Courts have often defined the use of a shorter text as falling outside Fair Use according to its scope and substantiality but accepted longer extracts. A non-commercial enterprise using the works of another will also fall outside of the Fair Use clauses and legislation as the use may harm the originators work and income or marketing capabilities. There is no set size of a work which may be used for another, each case is judged individually upon its merits and, unlike in all other cases before a court of law, it is required that the defense justify their case of Fair Use, rather than that the prosecution should prove it.

Fair Use of copyrighted works is a very complicated area, especially with written works. It is further complicated by the use of disclaimers – which are often invalid when used against Fair Use – and the use or lack of use of attribution which may, in some cases, bring copying of a work within the scope of civil law as theft and plagiarism. Fair Use does not apply in all countries in the same way as Copyright Law, with only five countries presently having clear and concise judgments and legislation on what may be called Fair Use and what falls outside of its terms. For all other countries legislation is contained within national copyright laws and the Berne Convention.

A fair rule of thumb is: consider how substantial the extracted work is; whether the new work adds significantly to present knowledge; whether the new work is a reference, scholastic or critical work; whether the original work and its marketability will be damaged in any way. Should a chosen extract meet all the criteria the chances are that it may be considered Fair Use.

Does the “Poor Man’s Copyright” Really Work?

Copyright Registration or Poor Man’s Copyright?

Many authors, photographers, novelists, and other creative professionals swear by the “poor man’s copyright” method: mailing copies of their own works to themselves and leaving the envelope sealed, thus “proving” legal ownership over the enclosed material.

But does this really prove anything… or is the attempt simply a waste of money?

Copyright Protection is Automatic

When you create a song, a poem, a music video, a painting, or any other piece of copyrightable work, protection is automatic. You created it; you own it.

But there’s a rather conspicuous difference between owning certain rights and protecting those rights in court.

Copyright Registration is the Only Legal Proof Accepted In Court

According to the US Copyright Office’s “Copyright Basics” publication, there are definite advantages to registering officially (despite the fact that protection does not depend upon it), arguably the most important being that in case of copyright infringement, registrations for works that originated in the United States are required in order to bring a lawsuit.

Yes, you read that right: Without a copyright registration, you cannot sue someone for copyright infringement.

Another excellent reason to register sooner rather than later involves the potential payment of legal fees, in the event of a successful outcome in court; if the official registration does not take place before the infringement or within 3 months of publication, only actual damages can be rewarded (no statutory damages or legal fees).

Suddenly, the $35 registration fee proponents of the poor-man’s copyright try to avoid doesn’t seem to large and looming anymore.

Poor Man’s Copyright Not Supported by Law

One last nail in the coffin comes by way of the same publication:

“The practice of sending a copy of your own work to yourself is sometimes called a ‘poor man’s copyright.’ There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”

It’s clear that deciding to save money by choosing the poor-man’s copyright is a myopic view of reality, and that any rational look toward future finances supports a decision to officially register a copyright.

The Most Crucial Points You Should Know About Music Licensing And Musical Copyright

It never ceases to shock me the number of people are in complete ignorance of precisely what music copyright is about, and how high-risk it could be to ignore the guidelines associated with it. Music licensing is, in simple terms at least, the authorized use of any kind of tracks that holds a legitimate copyright over it.

So why do we’ve got music licensing at all? Well the true reason for it is because musicians and lyricists should have a powerful layer of protection encompassing his or her works, otherwise they would not produce it to begin with. If you made an outstanding masterpiece, you’d probably need some form of defense against individuals stealing it or declaring it is his or her own creation. This particular defense is generated by the various audio licensing methods, and the legislations facilitates them therefore you can take someone to the courtroom for breaching your own copyright entitlement.

For instance, Philips just recently released an aggressive marketing strategy. The campaign carries a reputable Beatles tune as its theme music. It’s been stated that Philips actually paid out a whopping one million bucks for the legal rights to make use of this track within their marketing plan. That really goes to show the power of audio licensing inside the corporate arena. Most people also are not able to fully understand the wide extent of audio copyright in the United States. As an example, many individuals do not know how the tracks performed for radio stations, in TV ads, in podcasts, in motion pictures and even in bars will be strongly licensed.

To gain a very clear knowledge of just how far current US and other world music copyright schemes go in locking down the interests of music providers, here are a few important principles to take into account:

The law allows you to possess rights to particular sounds, verse and notes in a music. The legal rights to any of these elements or even all of them will be your own if they’re unique and you are the original composer. You must also be aware of the point that being the inventor merely offers you the right to the tunes however for these legal rights to be enforceable inside a court of justice you’ll have to sign-up in your local copyright clinic, a thing that many performers omit to do.

Licensing regulations have a totally different process on the subject of commercialized tracks. In this case, it is an actual song not its sounds, lyrics or notes which are under examination at the certification phase. There’s a few concerned parties with regards to these kinds of songs. The individuals concerned include the record label, the artist, the musician and the song author.

The record label would own the rights for the song’s actual sound recording, the composer and verse writer will possess the legal rights for the song, the publisher will legally represent the composer and songwriter in all their business affairs which the piece of music concerns.

That is the basic set up in relation to a commercial melody. Then again, slight variations may very well take place in any given record labelling company based on the details of the legal agreements it has got with its vocalists and songwriters. Additionally, other licensing styles are available whereby companies can buy the rights to Royalty Free music, enabling them to use the music in relative peace of mind without any “needle-drop” fees. It is important to remember that royalty free and copyright free music are two very different things entirely. Copyright free music has no rights whatsoever as they are relinquished by the artist upon a track’s creation or composition.

Radio channels and bars that want to use tunes are required to get hold of public performance privileges from appropriate authorities. In North America those relevant bodies are the American Society of Composers, Authors and Publishers and the Broadcast Music Incorporated organisation.

These organizations issue out blanket certificates to diners and broadcast channels to use just about any audio that they desire. The proceeds provided by those payments are then divided moving upward amongst the music rights proprietors in the country.

It goes without saying that broadcasters and production firms must be very careful whenever selecting tracks for film or community presentations. Podcasts are certainly one area where many individuals have made a commercial mistake by simply neglecting to perform some general checks on the law and how it pertains to the use of particular music arrangements.

What Is Copyright Awareness?

There is no standard definition for “Copyright Awareness”. However, some critics have argued that awareness can only be defined in the light of what is being manifested in all forms of perception, knowledge and consciousness. In each expression, awareness is revealed as the ability to perceive (perception), know (knowledge) or the state of being conscious (consciousness).

Simply defined, awareness means you aware of something. Let us say “I am aware of road accidents” it is qualified as “Road Accident Awareness”. Similarly, when “I am aware of copyright”, this also is “Copyright Awareness”. This means whenever there is awareness of something, that thing becomes the qualifying subject for awareness.

On this wise, copyright awareness is knowing that copyright exists and having knowledge about it. It is the state of having conscious knowledge about copyright in a perceived manner. When users of copyright materials exhibit this sense of awareness in an educational institution, it gives authors the opportunity to enjoy the economic value of their works and motivates their authorship.

Copyright awareness can be developed when conscious efforts are made to bring it into fruition. For instance, when copyright notices are displayed at various points where copyright materials are mostly used.

The importance of copyright awareness can be notice in its absence. That is to say that the absence of copyright can be noticed when there is the problem of uncontrolled copyright infringement activities such as illegal photocopying, plagiarism and piracy within an academic setup.

Awareness in all sphere of life is very challenging. In the same vein, Awareness of Copyright Protection has also remained a globally controversial aspect of copyright laws in respect of works eligible for copyright protection, works not protected by copyright and authors’ protection under the copyright protection. This, however, reveals that a lot of people have little or no knowledge in this regard.

On the other hand, Awareness of Copyright Infringement (ACI) can be said to be the awareness that is created when people become aware, conscious, alert, and responsive that unauthorised use of works that are copyrighted is prohibited. Some scholers argued that before we can discuss what constitutes Awareness of Copyright Infringement (ACI), it’s probably a good idea to lay out what specifically are the rights that are granted by copyright law that are likely to be infringed. For instance, in Ghana, according to Bosumprah (2009), “copyright is infringed when a work protected by copyright is used in any of the following ways without any permission from the copyright owner:

  • Reproduction, duplication, extraction or importation into the country not for personal use but for commercial purposes.
  • Distribution of the work for sale in Ghana”.

This is because a work exploited in the above mentioned manner may be prejudicial to the honour or reputation of the author. This is why section 41 of the Copyright Act, 2005 (Act 690) regards an act contrary to the rights of an author as provided under sections 5 and 6 as infringement of copyright. So, since the copyright owner has the exclusive right to do all of those things (or to permit others to do them), infringement can happen when someone does any of them without the copyright owner’s permission (Davidson, 2010).

Davidson (2010), however agrees with other scholars that “the majority of copyright infringement suits involve unauthorized… ”

  • Reproduction (as in copying a work) through photocopying, and this according to Panethiere (2005), is one of the common ways of infringing copyright in literary works.
  • Distributing (as in copies of the work) through piracy. According to Panethiere (2005) this happens through unauthorised manufacturing and selling of works in copyright – what Osman (2010) regarded as Counterfeitingor the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity.
  • Use of someone else’s ideas or words, as in plagiarism, or using someone else’s ideas or words without properly crediting the source, Osman (2010).

Further to this, Panethiere (2005) argued that

“itis not necessary for a whole work to be reproduced or for more than one reproduction to be made for an infringement of copyright to occur. An infringement of copyright occurs so long as a substantial portion of a work is reproduced or other copyright use is made of it”.

This is because what is a substantial portion is often subjected to a qualitative rather than a quantitative test. It is the quality or essence of what has been taken rather than the amount that is taken that will often determine whether the portion taken is substantial or not.


Bosumprah, B. (2009). The Rights and Responsibilities of the Media under the Copyright Law.

Davidson, J. (2010). What Constitutes Copyright Infringement and How Is It Decided? IP Registration and Enforcement Blog. An ongoing discussion of intellectual property and entertainment law issues.

Copyright 101: Understanding Copyright Law and How to License Your Artwork As a Designer

Copyright/Licensing Info:

U.S. Constitution, Article 1, Section 8 empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” -the basis of copyright laws of today

In today’s visual world, the work created by a graphic designer are among the most powerful vehicles for communicating ideas in our society and generating revenue for a particular client. A successful logo, ad campaign, commercial or overall branding of a company, can evoke a company’s goodwill in the public mind and move an entire population to action.

© Copyright: an artist’s right to control the use of their original creative art (which also provides the basis for pricing, licensing and fair trade practices)

1978 – Copyright Act became effective

1989 – U.S. copyright law automatically protects original artwork from the moment of its creation even without inscribing a copyright notice which always allows the artist to assert a claim for copyright infringement even if he or she has not previously registered the work in question.

1998 – The Digital Millennium Copyright Act (DMCA) became effective also including the digital network environment as well as print, film and recording media.

Copyright term: Artist’s life + 70 years

Trademarks: TM or ®
While a copyright protects an artistic or literary work and a patent protects an invention, a trademark protects its name or identity.

A valid trademark gives the owner the right to prevent others from using a mark that might be confusingly similar to the owner’s mark especially if someone else uses the mark for similar goods or services thus respecting the owner’s intellectual property.

The ® symbol, however, may ONLY be used AFTER the U.S. Government grants a federal registration certificate. (Nike, Mercedes, etc… ). Being registered through the federal government entitles you to more rights in case of infringement throughout the United States, even in geographical areas in which the trademark is not used.

Licensing Rights:
Licensing copyright rights to a client for use and reuse or reproduction of a design, ad campaign, logo, etc… for a particular purpose, for a particular length of time, or for a particular geographic area for a fee is an issue of basic fairness and standard business practice in the industry.

An artist’s copyright is actually a bundle of individual rights. Each specific use can be transferred outright or licensed separately for a specific length of time. Fees are determined primarily by the value agreed upon between the licensor (artist) and licensee (client). Any rights not transferred explicitly in writing remain the property of the creator.

*In the design/advertising industry, the value of a particular work of art or design is influenced greatly by its use.

Artists can license their work on either a flat licensing fee or on a royalty fee for a specified period of time as agreed by both the licensor (artist) and licensee (client).

It is very important to be specific as each type of design and level of usage influence the final value of the artwork AND scope of the amount of design work to be completed. This information will ultimately assist in finalizing the price structure for the designer and creative budget for the client.

Setting Rates:
Rates vary by several deciding factors:

1.) Distribution:
Mass market – major retailer w/ increased potential volume of sales vs. speciality market – boutique stores w/ potential lesser volume of sales
Pertaining to start up companies: find out how many and which pieces of product, apparel, accessories, promotional materials/merchandise the client plans to produce for its initial and subsequent manufacturing runs.

2.) Type of medium/product:
Where will the finished design work appear? Print (Magazine, Newspaper Publications), Digital (Web, Email, Social Media) Outdoor (Signs/Signage, Billboards) or Multiple Forms of Media? How many mediums within each market category will the artwork appear? (for example, 1 magazine or 10? 1 billboard or 50?, etc… )

3.) Geographic area of use:
How widely will the work be used: local, regional, national, international? As the span of the marketplace increases, so does the work’s exposure, which can increase its present and future value.

4.) Duration of use:
How long will the design work be used – for one time, one year, two years? Limitations on duration of use allow designers to control the exposure of their work and to receive fair market value in each venue where their work appears.

Ownership of original art:
Giving the client the right to artwork or to a design for a specified use or a particular period of time is different from selling the client the physical artwork and submitting all electronic files. The sale of original art is considered a secondary market for graphic designers and is, by law, a transaction separate from the transfer or sale of the reproduction rights OR the original creative fee to initially design the artwork.

All-Inclusive rights “terms:”
Such licensing rights allows the client a one time run or use of the artwork, an unlimited use of the artwork, unlimited use of the reproduction of artwork, including geographic areas, all different types of media but for a limited period of time (usually 1 year), etc.. The rights pertaining to the licensing fee would be agreed by both parties in a legally binding licensing contract.

*the artist also has the right to require limitations on duration of use and separate different designs into different licenses allowing the designer more control to the exposure of their work and to receive fair market value in each venue where their work appears.

For example, the artist can “bundle” all-inclusive rights to client for all artwork EXCEPT for use of ads in publications (magazines and/or newspapers) and would limit the number of “runs” to 5 per year instead of an unlimited amount. Any more “runs” with the artist’s ad/ad campaign would require an additional licensing fee.

All-Rights Buyout:
Finally, there is an all-rights clause, also called a “buyout,” granting the client full permission for all copyrights of all original artwork including all original electronic files that the artist creates for that client. This type of transaction is always the most substantial and highest price point upon negotiation for the artist and client. The value for all original artwork is very difficult to gauge for fair market pricing since a buyout price is determined for the artwork for both present AND future value of the company. The all-rights buyout clause would be valid for the life of the client’s company and would be settled by a legally binding buyout contract.

Copyright Part One: The Definition of Protection for Creative Works

Intellectual property is a work or invention that is the result of creativity to which one has rights and which one may protect. A copyright is a way by law to protect a writing, for example, whether it is published or not. The U.S. Copyright Office designates copyright protection for “… original works of authorship fixed in any tangible medium of expression, now known or later developed…” (see 17 USC § 102(a)). Essentially there are three parts to the protection: (1) being a work of authorship, which we explore in more detail within a separate article, (2) being original, and (3) being fixed in a tangible medium of expression.

Original. A work must be original to the author in order to be protected. Further, the term “original” as used in copyright law simply means (i) that the work was independently created by the author and (ii) that it possesses at least a minimal degree of creativity. Feist Publications v. Rural Telephone Service is an illustrative case from 1991 in which Rural Telephone Service’s mere directory compilation deserved no copyright protection. The test is that an idea be more than “so mechanical or routine as to require no creativity whatsoever” – that the idea contain some “creative spark.” The court ruled that Rural Telephone Service’s directory was nothing more than an alphabetical list of all subscribers to its service, meaning no creative expression was involved.

Fixed. The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or other device. For instance, a short story that is printed on paper meets this requirement, while a live performance of the same short story that is not being simultaneously recorded does not. Another example exists in a song. A song is considered fixed when it is written down on paper, which is the medium on which the song can be perceived, reproduced, and communicated. Further, as long as the work can be perceived by a machine, like the moment the author records it onto a cassette tape or compact disc, the song is fixed. Similarly, a computer program is fixed when stored on a computer’s hard drive. Further, even though bits and bytes are only temporarily fixed via the random access memory (RAM) of a computer, many courts have held that a computer program that exists in RAM is fixed for the purpose of copyright protection.