Copyright Basics – Your Burning Questions, Answered
This is Part One in our “Copyright Basics” series by Melbourne-based intellectual property lawyer Sharon Givoni. Sharon is the author of Owning It: A Creative’s Guide to Copyright, Contracts and the Law.
What is Copyright?
Copyright is essentially an incentive system that rewards artists with certain exclusive rights in their work for a specific period of time. In Australia, copyright protection arises automatically. In other words, you are not required to register or use the “©” symbol for your work to be protected.
Copyright protects a wide range of works, including maps, performances, paintings, photographs, sound recordings, motion pictures, computer programs and even choreographic dances!
When does Copyright Arise?
Whilst copyright does arise automatically, there are certain requirements that must be met for copyright to arise. One such key requirement is that the work must be original and that it must be reduced to material form (i.e. that the work is recorded in some way).
So what does originality mean? This does not mean your artwork has to be new and never done before, but that the artwork needs to have originated from you as its true author.
Setting the Record Straight - Copyright Myths 101
Perspiration, not Inspiration
Copyright does not protect ideas or concepts but the expression of ideas and concepts. After all, no one artist should have a monopoly over an idea, as that would be incredibly restricting for the creative economy.
Substantial Reproduction
Copyright law prohibits people from making an exact or close copy of your artwork. This is one of the trickiest parts of copyright law, as there’s a fine line between whether an idea or the actual expression of that idea has been copied.
Not a Numbers Game
There is a common myth that you can avoid copyright infringement by changing someone else’s work by 10 per cent or more. In fact, the test is all about the quality of what you take, not the quantity.
The important message is that you do not have to copy all of someone’s work to be liable for copyright infringement. Conversely, if you believe someone has copied your work, even if they have “tweaked” it, you may have legal remedies against them.
To put some examples to the above, consider the following circumstances:
Direct infringement: Photographing a painting in a gallery and posting it on Instagram can amount to copyright infringement.
Authorising infringement: If a client asks you to create a new logo for them based on something similar to another business’s logo, not only could you be liable for copyright infringement but your client may also be liable for authorising the infringement by asking you to copy.
Unconscious copying: If your work includes an essential feature of a work you have probably seen before, you may be liable for copyright infringement even if you had no intention of copying.
Style and technique
Ultimately, the law attempts to find a delicate balance between allowing artists to freely use concepts, styles and techniques on the one hand, and giving artists enough protection to prevent someone from copying their works on the other.
The Internet – A Digital Wild Wild West?
Many fall into the trap that just because works are on the internet, or they cannot find the owner of the image, they are free to share it, print it, photocopy it, and so on. But the reality is that works on the internet can and do have the same rights as any other copyright works.
The moral of the story?
Copyright can be your shield and your sword – but, it's important you know how big your shield is and how your sword can be yielded.
Ultimately, having some key knowledge in your arsenal as well as tailored legal advice can get you a long way.
Disclaimer: This article is of a general nature only and must not be relied upon as a substitute for tailored legal advice from a qualified professional. Sharon Givoni owns copyright in this article. Sharon Givoni is the principal solicitor of Sharon Givoni Consulting. She has over 25 years of experience in providing clients with commercial and IP law advice, and artists and creatives form a substantial part of her firm’s client base.
Sharon is a creative problem solver and always cautious with the budgetary needs of her clients. Most importantly, she is dedicated to providing comprehensive legal advice in plain English, and does so through building direct relationships with her clients.
Sharon is also preparing a second edition of her book “Owning It: A Creative’s Guide to Copyright, Contracts and the Law”, the first edition which has sold out. To find out more, visit: https://www.owningit.com.au/.
For more information about Sharon Givoni go to www.sharongivoni.com.au. To contact Sharon Givoni and her legal team, contact info@iplegal.com.au