How to learn copyright laws affecting freelancers and self-employed people

Question

I've been considering starting my own company or doing some freelance work.

I've heard through mainstream media that copyright law affects lots and lots of different types of work, especially the kind of creative work that I'm considering doing as a freelancer, but I really don't understand it all very well. It seems hopelessly complex to me. In the USA, I guess I have to register my work with the Library of Congress or the US Register of Copyrights or something in order to be able to own the copyright in my work, but I'm really not sure.

Is there any definitive source that I can go to for trying to get a better understanding of copyright law? If so, please answer with specifics.

Answer 1

How to learn copyright law....

As a long-term open source software developer, I have to say one never really stops learning copyright law. There are however some very basic things to be aware of. There are even questions which have not been definitively answered, such as whether or when #include <headerfile.h> can ever lead to the copyright holder of headerfile.h having a say in the code that merely includes the headerfile for functional reasons. Sometimes we do get lucky and get answers from the court (see the recent Kirtseang v. Wiley where the Supreme Court held that foreign first sales are first sales under US copyright law, an opinion that did not sway the whole court however). More often we don't (if I link to GNU Readline at runtime only, does the GPL govern my work?).

The first is that everywhere copyright seeks to strike a balance between works being publicly available and encouraging their creation. The lines are not always exact. In the US for example, a bunch of data collected in a database is not generally protected, but the selection, arrangement, and layout of recipes in a cookbook is (even though the individual recipes are not protected). In the UK the data in a database may be subject to copyright but if I assemble the same data in a new data I am in the clear as long as I collected it myself. This is an example of differing lines and how both seek to balance the same two interests but end up doing so differently.

The second thing is that one or two sources are never going to get you far enough to really understand it. For the US, you can start with the Copyright Office, but that doesn't give you more than a very brief overview.

So beyond that, another thing you can do is read important caselaw. These are important because they give you a sense of what judges are thinking the laws mean. Important cases in the US include:

• Universal Studios v. Reimerdes (2nd circuit, holding that although software was free speech, the DMCA could prohibit links to DeCSS)
• MGM v. Grokster (Supreme Court, holding that a company may be held liable for infringement by customers where they market infringing uses of their products)
• Sony v. Universal Studios, Supreme Court, holding that a business is not liable for infringement by customers due to mere infringing capability of their products if they have substantial non-infringing uses
• Sony v. Connectix, 9th Circuit, holding that reverse engineering is fair use, and that copying in order to reverse engineer is fair use.
• Lexmark v. Static Control, 6th Circuit, holding that copyright does not extend to components needed to make interoperable printer cartridges.
• Kirtsaeng v. Wiley, holding that a foreign first sale can and in most cases will, count as a first sale for copyright purposes in the US.

Beyond that start following legal blogs covering copyright issues, preferably those with multiple viewpoints so you aren't just buying an agenda.

Finally, whenever you are concerned, hire a lawyer. Treat the lawyer as a consultant. Don't be shy when asking questions. After all part of what you are paying him for is to help you understand.

Answer 2

In fact, unless contracts specify otherwise, you own the copyright in almost (fashion is one exception in the USA; all clothing exists completely outside the bounds of all US copyright legislation) anything you create immediately upon "putting pen to paper," so-to-speak. This is true even if you never publish your creation.

If you want to pursue litigation in federal court (this is where copyright suits are argued in the USA, at the typical price of $60,000 per day for a typical 2.5 week trial), then you will need to first register your work with the US Register of Copyrights before filing suit, but you still technically "own" the copyright in your creations regardless of whether or not you register them.

And the matter of the date of registration of your creations also affects the damages you are allowed to claim in court if you allege infringement. In particular, if the alleged infringement occurred before you registered your work with the copyright office, then your allowable damages are smaller than if the alleged infringement occurred after you registered your work.

Aside from Title 17 of the US Code (of which the US Register of Copyrights testified two months ago before Congress that it, "...needs an army of lawyers to understand..."), Nimmer (which can be had for the low, low price of $2,623.00) is widely regarded as the definitive legal interpretation regarding copyright law. If that's too rich for your blood, then the best alternative for understanding copyright law is to spend many hours watching and listening to Harvard Law School Professor Terry Fisher scratch the surface of the subject in his 12-week CopyrightX MOOC, recently completed on edX.org and also available universally here. There's also a great deal of what he thinks are the best judicial opinions to read for trying to understand this phenomenally complex subject and 6 special events featuring speakers such as Harvard's Professor Larry Lessig who spoke very convincingly and publicly in February 2013 about "Dumb Copyright" in the aftermath of Aaron Swartz' January suicide. Professor Lessig begins speaking here at minute mark 09:05.

Compared with Nimmer, the CopyrightX MOOC is at just the right price: zero, zilch, nada, nothing. Pretty good value for anyone who wants to learn about copyright law as it relates to freelance creative work. Professor Fisher also talks (though less extensively) about copyright law in other nations than just the USA.