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What’s up, y’all. Welcome to The Shontavia Show, where my goal is to help you start a business based on your life’s vision. This ain’t gonna be your daddy’s business advice. I’m laser focused on entrepreneurship in the 21st century, vision and breaking the traditional mold. If you can get with that, you can get with me, be sure to visit shontavia.com for more episodes, blog posts, and other content. Thank you for listening. The show starts now.

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What’s up everybody? I’m Shontavia and this is another episode of The Shontavia Show where I want to inspire you to build a business based on your life’s vision. Today’s episode is all about copyrights and what the law actually has to say about it. So for many people, I’d say probably even most entrepreneurs and content creators, copyrights are the things that intersect with your business and your day to day operations the most, more than probably any other kind of any other, probably more than any other kind of intellectual property law.

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Intellectual property is this umbrella term that people use to refer to patents, trademarks, copyrights and trade secrets altogether and copyright law is just one of those types of intellectual property law. The law is actually relatively simple on its face, but it is really, really complicated in its application. In fact, one of the things I want to do on this show today, I have a lot of questions about, you know, what is where, I’m maybe stepping on the line a little bit, but at any rate, I want to use this episode to start with the relatively simple concepts of copyright law and what it actually says. I’ll do later episodes about specifically how copyright law might impact you online and that kind of thing. But before we get started with what the law has to say, I want to start with one of my favorite entertainers of all time, who is Missy Elliott and what she has to say about it.

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So Missy has this song from 2001 called Get Your Freak On. It’s absolutely probably one of my favorite songs on the planet. I probably have sweated out many a perm to this. I don’t have a perm now. Haven’t had one in a decade, but back in the day sweated out many a perm to that song. The video too is amazing. Go watch the video if you’ve never seen it. For my youngins, there are lot of you know folks from my childhood, my college days and that video, LL Cool J, Ludacris, Nate Dogg, all them. Anyway, in the song there’s this line in the song where Missy says, “ain’t no stopping me, copywritten so don’t copy me.” And basically if you could boil copyright law down into one sentence, Missy Elliot has probably done it better than anybody on the planet, including all these high priced lawyers like I used to be.

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So basically that is the point. If you hold a copyright in something, you get the right to keep others from copying that thing. So thank you Missy for breaking it down for everybody. There’s a lot more of course. And that’s really what I want to talk about in this episode, how you can start to understand this big term, “copyright,” and understand the big broad principles. Because like I was saying before, really copyrights are pretty important for entrepreneurs and content creators. And I want to say too about content creators. That is a term that gets thrown around a lot now. The phrase is always on the news. Content creator jobs are on the rise. People are calling themselves content creators. I call myself a content creator and there are some very successful content creators making a ton of money on like Instagram and Facebook and lots of different social media platforms.

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Everybody wants to get into the content creator game, especially because the internet is ultimately a machine for sharing and reproducing and repurposing content and the things we make. So what I would like to do is start real big and we can drill down is as much as people want.

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Almost every facet of copyright doctrine though has been impacted by the internet in some way. So the law that I’m going to talk about here today was created, in some instances, hundreds and hundreds of years ago. So you’ll start to see why in your own business, especially if you’re operating online, there are a ton of questions about how this stuff applies for us here in the 21st century. But let’s start with the basics.

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So in the United States, the, the way in which we get to copyright law is through the United States Constitution. So the framers of the US Constitution thought intellectual property and content creation was so important that they wrote it into article one, section eight clause eight of the Constitution.

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This was one of the first articles even passed and one of the first days of the first Continental Congress. And essentially the Constitution gives Congress the power to promote the progress of science and the useful arts by granting people who build stuff and create stuff, exclusive rights in those things. So that is where we start. With the Constitution. What I’d like to do from that kind of constitutional statement though is break down what that looks like as a matter of law, meaning what is required and what is not required in the United States right now as it relates to copyright law.

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So there are three things that are required in anything else you hear is probably inaccurate or doesn’t tell the complete picture. So first, what is required is “orginality, “the second thing required is a “work of authorship.” And the third thing that is required is “fixation.”

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And in the United States that’s all the law actually requires: originality, work of authorship and fixation, and anything else is not a copyright requirement.

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And I’ll talk a little bit about some of the things that are not required. So you’ll know when you get bad advice from folks. So first in terms of originality, what that really means, what at least the courts have said that means is that you must independently create the content or create the work.

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And second, there must be a minimal degree of creativity. So what does all that mean? Independent creation basically just says you have created the thing, you’ve not copied it from anywhere else. Go back to Missy Elliott’s definition.

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You’ve created something without copying anyone else. So, even if I’m sitting in a room and you’re sitting in a different room and we write exactly the same poem, I mean that would be pretty strange, but if we wrote exactly the same poem with exactly the same words, we could both own a copyright in that work because we have independently created that work as long as we meet those other requirements.

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So independent creation, pretty easy in most instances to deal with. I mean there’ve been some really strange things that happened in the past few years. So there was like a question recently about whether a monkey could own a copyright in a selfie that it took with somebody’s camera, but weird things like that aside. Independent creation is pretty simple to get to.

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The second thing is a minimal degree of creativity. So what’s that mean? A minimal degree of creativity. It’s a really, really low bar, at least in the United States. A really, really low bar. So like I have three kids, they’re nine, four and two right now. They like to create things all over my walls, all over my house.

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And where they’re creating probably has that minimal degree of creativity as a matter of law. There’s a really famous case about what it means to have a minimal degree of creativity and it involves something, for the youngins who might be listening you probably haven’t seen in your lifetime, which is a phone book and the phone book boys and girls was a thing that listed everybody’s phone numbers back in the day and they did it in alphabetical order with people’s last names, their phone number and their home address. And there was this famous case called Feist vs. Rural about whether or not if one person made a phone book with everybody’s name in alphabetical order with their phone number and their address, whether or not that could be considered copyrightable and have a minimal degree of creativity so that they could keep people from copying their phone book.

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What the court said in that case was that is not a minimal degree of creativity if you’re just putting stuff in alphabetical order that doesn’t meet the standard. So the bar is really, really low for a minimal degree of creativity. So listing things in alphabetical order, not creative, but the bar is still pretty low.

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If you have little kids in your family, they’re probably creating things with a minimal degree of creativity. So that’s the first requirement for copyright law.

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The second is something called a “work of authorship.” And what the work of authorship means is there’s a list of different categories of things that are copyrightable in the Copyright Act, which is the law in the United States that deals with all of this stuff. And I’m gonna read the list and talk a little bit about the things on the list that are most relevant.

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What I’ll say though is this is not an exhaustive list. Courts have said you can add new things to the list if you can make a good enough argument for them. So I’ll list out the eight things that are mentioned in the law. Talk about a couple of things that have been added to the law over time.

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So the first thing as a matter of law, that is considered a work of authorship, meaning it can receive copyright protection are literary works, so like books, poetry anthologies, those types of things. Books are considered copyrightable, things that are literary works.

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Number two, musical works, including any accompanying words. So if you have a song that is the audio and the lyrics, those things, those musical works are copyrightable. They are considered works of authorship.

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Dramatic works. So theater plays, that kind of thing, including the music, those things are copyrightable. Pantomimes and choreographic works. They shows up a lot with dancers, with ballet, with jazz, with tap, that kind of thing. Choreographic works, things that need to be choreographed, pantomime.

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Number five, pictorial graphic or sculptural works.

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Number six, motion pictures and other audio visual works.

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Number seven, sound recordings.

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Number eight, architectural works.

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So that’s what the law says, at least as a foundation. These are the things that are copyrightable. Now again, this is a non exhaustive list. So other stuff that’s not listed here could be considered copyrightable.

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Some things at least in the 21st century that could be relevant for you to know that are copyrightable are things like websites and software. So like if you’re developing an app, the software behind that app is considered copyrightable and websites, so if you scroll to the bottom of any website, you’ll see a copyright notice at the bottom.

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I’ll talk about copyright notices in a little while in this episode, but copyright notices at the bottom of every website because websites can be considered really a combination of a lot of, a lot of the things I just mentioned.

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There are some things that copyright law does not protect, right, and so some of those things include ideas, procedures, processes, systems, discoveries, principles, concepts, methods of operation, usually that kind of stuff, like when you’re talking about ideas, procedures, processes, systems, discoveries, that really is more in the patent realm.

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Copyright law protects those works of authorship. That list that I just mentioned a few minutes ago, and you can try to add things to this list.

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Sometimes you’ll be successful, sometimes you won’t. A lot of that depends on frankly, ultimately you being in court or, or fighting with someone about whether your thing is copyrightable you end up in court and the court interprets whether or not your thing should be added to the list.

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There was a lawsuit a few years ago about whether gardens could be considered a work of authorship – court said no, under that set of circumstances, gardens, because they’re flowers, they grow. You don’t need really human interaction for things to grow in that way. Gardens are not considered works of authorship. So now you can be creative but you might not be successful.

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So that’s the second requirement. Works of authorship. Again, the first was originality.

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The third requirement is something called fixation. So I’m gonna say the legal kind of term, the legalese, and then explain what I mean. But when we hear the term fixation, what that means is that the work is fixed in a tangible medium of expression, such that it can be perceived for more than a transitory duration. And what that basically means is if you have created a work of authorship, it’s something we can see for more than a brief moment it’s something we can perceive for more than a brief moment.

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We can experience, we can maybe touch and feel it if it is, you know, some type of architectural work or whatever, but we have to be able to see it, perceive it for more than a transitory duration.

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So what kinds of things might not be considered fixed? So like blowing a bubble, you might blow a bubble, it creates a circle or a sphere or whatever for a short period of time and then it bursts. That would not be considered fixed cause it’s not perceivable for more than a transitory duration.

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For my artists out there. Things that might not be considered fixed are, like, freestyles unless you’re simultaneously recording that freestyle or, I mean it’s not a freestyle if you write it down beforehand I guess. But unless it’s written down somewhere or being simultaneously recorded, it is not considered copyrightable. Same with like a parade unless it’s being recorded in some way. Photos are being taken.

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The parade itself would not be considered fixed unless it’s also being recorded in some way where we can see it for more than a transitory period. Extemporaneous speeches, like things you’re just saying or doing off the dome without being recorded. So if you are in that universe of improvising, of doing extemporaneous stuff where you just saying stuff off the top of your head or so like freestyles I mentioned earlier, that kind of thing. Then you also want to be recording, writing things down in a way so that those things are copyrightable.

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Otherwise, if it’s not fixed, it is not copyrightable.

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So once you meet those three requirements, at least in the United States, you own a copyrighted work. You don’t actually have to go register anything with the Copyright Office. It does not have to be brand new or or novel in any way.

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It actually doesn’t even have to be good. There’s no requirement that the thing you create is even aesthetically pleasing or has any kind of creative value as long as you meet those three things. Original work of authorship fixed in a tangible medium of expression, and again, you actually don’t even have to register anything with the copyright office.

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So you can, but you do not have to. If you choose to register your copyright with the copy.. Your work of authorship with the copyright office or not, no matter what you decide to register or no, you can still use a copyright notice and using a copyright notice just makes the public aware that you’re staking your claim in the ground saying, Hey, I have a copyright claim in this work. And so a notice you’ve seen them a million times probably it’s usually the C with the circle around it, the year that a work has been published and then either the name of a person or the name of a business, and that is a copyright notice.

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You actually don’t even have to do that. You can, but you don’t have to, to actually acquire copyright ownership in a thing.

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I used to represent a client who did not want to put copyright notices on his work because he thought it took away from the aesthetic beauty of the, he was a photographer and painter didn’t want to put the C with the circle around it and all of that on his work. Someone came to pictures of his work and started selling reprints online and we were able to stop that person from doing that even though there was no copyright notice, even though there were none of those things. Because in the US you don’t actually have to do those things. So again, you scroll to the bottom of any website, you’ll see those. If you want to see some examples, if you go to my website, you’ll see where I can… I explain how to step-by-step how you can create copyright notices though they’re really pretty simple.

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If you choose to register though, if you choose to register your copyrighted work, there’s some benefits you get because thus far I haven’t said anything that indicates you would need to register a copyright. You get it automatically. You don’t even have to have a registered copyright to put that little C with the circle around it on your work.

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So why would you spend the money to register your work? With the United States Copyright Office? There are a couple of reasons why you could/should register your work with the Copyright Office. And let me give you just a couple of the benefits of registering your copyright at work. So you have a public record number one that you created something you can prove it kind of easily, if you filed an application with the Copyright Office and they’ve approved it, you have a public record that you created something and own it.

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Number two in the U S if you want to sue somebody in federal court over their illegal copying, which we call infringement, of your work, then you have to have it registered first. And you can do this at any time. So if you don’t want to spend the money up front, you want to wait and if somebody does copy your work and then you want to file a registration application, you can do that.

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But if you do it within the first five years, courts will assume that your copyrighted work is valid and that you are the owner and that can be a pretty big deal in copyright lawsuits because if you’ve filed an application to register your copyright, then that’s your basic level of proof and the court starts from the premise that that is true. And the other party, the one who has allegedly copied your work wrongly has to prove that you’re not the owner or that your work does not meet the requirements.

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So it takes a lot more work on their part than it does on your part. If you go ahead and register your copyrighted work.

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And if you register it early enough, you can get better money damages if you end up in court. So these are something called statutory damages. You can get more money and it’s a set amount. Well, I won’t say more, but you can get a set amount of statutory damages for this illegal copying, this infringement of your work. And statutory damages range from $750 to $30,000 going up to $150,000 if the infringement is purposeful or willful.

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That’s kind of the legal term you’ll see, “willful.”

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Also if you register your work, if you end up in court, you can get attorney’s fees and that’s important because copyright infringement is really, really expensive. Just to send somebody a letter. If a lawyer is going to do it, it’s going to cost you a few thousand dollars and the average cost of being in court and litigating, having a whole lawsuit about copyright infringement is just shy of $300,000 (on average!), So if you want to sue somebody in court and you have a copyright registration, you can ask a court to give you your attorney’s fees back.

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And another thing that’s getting more and more important for entrepreneurs is we have a more global world and society is if you have a registration, you can record that registration with customs and border control and that will protect you against illegal copies of your work coming into the country coming into the United States.

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So those are some of the reasons why you might think about registering your work. Either way, once you have a copyrighted work, something that is protected, whether you register it or not, if you meet those requirements, you have a copyright that lasts for a pretty long time.

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If you’re an individual and the copyright is owned by an individual creator, then the copyright duration is the life of the author– of the creator– of the author plus 70 years. So you have a copyright for a long time for your entire life plus 70 years.

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Or if there’s corporate authorship, the duration is a little bit more complicated. It’s 120 years from the date of creation, or it’s 95 years from the date of publication, whichever date is earlier.

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So I’ll say that again, but basically copyright duration last one of two time periods. If there is just a creator, an individual who’s created the work, the duration is the life of the author plus 70 years. If there’s corporate authorship, it’s 120 years from creation or 95 years from publication, whichever date is earlier.

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And publication means you’ve put that work out there for the world to see either by selling it, distributing it, disseminating it in some kind of way.

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The last thing I want to mention about copyrights and this part is actually pretty, this is something that I think enough people don’t appreciate when they go out and either register copyrights or claim copyright ownership in a thing.

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Once you receive a copyright, whether you register it or not, what you get is exclusive rights in that thing. You get a right to keep others from doing certain things with your copyrighted work. Now the thing that is not appreciated in my opinion is the fact that you actually have to go out and police your work.

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You have to monitor uses. You have to affirmatively reach out to somebody and say, Hey, that is my copyrighted work and you cannot copy it, you cannot use it in some way, so just you having a copyright doesn’t stop me from copying your work. What it does is give you the right to say to me, “Hey, you can’t do that.” So you actually, once you get any kind of intellectual property, it is now on you to monitor and police uses of your work online or wherever.

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So what do you get? You get this exclusive right to do certain things and there’s six things in the law and I’ll talk about them not using legalese. I’ll just kind of explain what they are.

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So the first thing you get under these exclusive rights is the right to reproduce the copyrighted work. So that means like I’m creating this podcast right now. I’m the only one who at least as of right now, who can reproduce this work in some way. I’m the only one who can– whether I want to sell it or do whatever it is with it, unless I give that right to somebody else.

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I’m the only one who can prepare derivative works based on a copyrighed.. My copyrighted work. So like derivative work examples would be like turning a book into a movie, or creating a remix of a song or uthat kind of thing.

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Number three, selling or distributing copies of the work. So you have the exclusive right to sell or distribute copyrighted work unless you give that right to other people. The right to perform the work publicly, the right to display the right publicly. And when you have a sound recording, you have the right to perform using digital audio transmissions and that’s what copyright law gives you an exclusive right to do those things and the exclusive right to police your, your work in that way.

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So all of this is just the tip of the iceberg. This is just kind of like the fundamental basics. It is really, really, really complicated stuff and really, really complicated to understand how this works out in the real world, especially like on YouTube and on other social media platforms.

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You can hire lawyers, yes. To do all of this and manage all of this for you.

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My thought though is that if there’s something that’s really important to your business, you should at least understand the basics of it, which is why I wanted to do a podcast episode specifically about this.

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So you understand at least fundamentally what you have. Even if you have a whole team of lawyers, I know this is a lot, I know this isn’t the most sexy topic necessarily, but as a business owner, you really have to understand this stuff and know like fundamentally what’s going on with your content, with the things that you’re creating.

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Do you have other questions about copyright? Are there things in particular that you’re dealing with that intersect with this in some way? Did you know you already may have a whole portfolio of copyrighted work? If you’re out creating things, blog posts, social media posts, pictures. If you have comments or questions, please head over to shontavia.com leave a comment about this episode.

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Ask me questions. If you have questions, you can read more on my website about this and all kinds of topics related to entrepreneurship and you can find other resources there. Thank you.

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Thank you so much for listening to this episode of The Shontavia Show. If you enjoyed this episode, please be sure to like, subscribe and leave a comment wherever you’re listening. You can find me on social media everywhere, Facebook, Instagram, Twitter, LinkedIn, and wherever else @ShontaviaJEsq. You can also visit me at shontavia.com to find a transcript of this episode along with other show notes. While you’re there, please be sure to subscribe to my email newsletter. The information shared in this podcast and through my other platforms is designed to educate you about business and entrepreneurship and I love to do this work. While I am a lawyer, though, the information I provide is not legal advice and does not create or constitute an attorney client relationship. The Shontavia Show is a LVRG Incorporated original. The show is recorded on site in South Carolina and produced at Sit N Spin Studio in Greenville, South Carolina. Original music and sound design is by Matt Morgan and Daniel Gregory. Mixing and mastering is by Daniel Gregory and the video is by GVL Media.