Is This Song Copyrighted? What About This Photo?

I spend a little time over on Reddit.com. O.k. a lot. A lot of time. Don't judge me. But, I cannot tell you how many times I have seen posts by artists or content creators asking whether some photo or song is copyrighted and if they can use it in their project or Youtube video.

So what's the answer? Well, there is no one-size-fits-all answer to whether something is copyrighted or not but, if you have a question about an item, you have to be able to play the odds a bit. Meaning, when you say "chances are" this item is or isn't copyrighted, you have some solid information backing up those chances. Let's take a look at a few facts you can use when these questions pop up.

A Place of Yes

When you are wondering about the copyright status of something like a song or a photo, it is good business to start from a place of "yes." Meaning, you should assume that those kinds of items are copyrighted and go from there. Now, this won't be the case all the time (monkey selfie comes to mind) but, remember, we are playing the odds here. Photos and songs often require and demonstrate many of the creative choices and decisions that are distinctly protectible by copyright.

With photos, some of the selections that courts may examine to determine originality (and thus copyrightability) are “posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.” [1] So, most photographs, “probably the overwhelming majority,” contain sufficient originality to qualify for copyright. [2] So, yes, that photo you copied from Facebook or lifted off of Google is likely copyrighted.

Similarly, music requires so many creative selections that shape the composition. Think of all the different aspects of music - lyrics, melody, harmony, rhythm, pitch, cadence, the verse/chorus relationship, tempo, phrasing, structure, chord progressions, meter, "timbre, tone, spatial organization, consonance, dissonance, accents, note choice, combinations, interplay of instruments, basslines, and new technological sounds can all be elements of a musical composition." [3] Because all it takes is a modicum of creativity to qualify for copyright, when there are endless ways to come up with that modicum, creative works like music generally end up enjoying broad copyright protection. So, yes, that music clip you are trying to add to your video is probably copyrighted. This is a very safe presumption.

Reasons a Work May No longer be Copyrighted

O.k. so we see that music and photos have a bunch of different ways in which they can be creative and it only take a tiny bit of that to obtain copyright protection. But there are a couple of main reasons why a work may not be protected.

Expired Copyright

Eventually, a copyright will expire and, when it does, the work enters the public domain. A work in the public domain is free to use and cannot be owned by any one person. Now, the rules related to copyright expiration are especially convoluted because, over the years, the Copyright Act has been re-written and added to (Addendummed? No. Addendumized? No. Addended! Yes! Addended.) This resulted in changes in the duration of a copyright depending on several things such as when a work was first published, registered, whether it was renewed, whether it had the proper notice, etc. For our purposes, any work published prior to 1926 is now in the public domain in the United States. Additionally, any work created since 1978 enjoys a copyright for the life of the author plus 70 years. You can find more information about copyright duration HERE.

If any of your questions deal with a modern work and/or a piece where the creator is still alive and kicking, you should assume it is under copyright.

Abandoned Copyright

The exclusive rights granted to a copyright owner can also be voluntarily abandoned. But, unlike trademark rights, which are a whole different animal, a copyright cannot be considered abandoned through simple inaction or a failure to enforce that right. There has to be an “overt act” that demonstrates an intent to abandon a copyright. [4] For instance, a statement by the creator that they are placing their work in the public domain would be considered abandonment.

It is simply not safe to rely upon anything implicit or that lacks the explicit expression of an intent to abandon a copyright. Just because the copyright does not seem to be enforced or the creator cannot be found does not mean that any rights have been abandoned. Additionally, remember that copyright consists of a bundle of rights that can be broken up and exploited separately. For instance, an owner can abandon reproduction rights but not distribution rights which would mean that everyone has permission to copy their work but the owner retains the exclusive right to sell or otherwise distribute that work to others.

That's really about it...There are not a whole lot of ways in which a valid copyright can be lost.

The Takeaway for Creators

If you want to know if something highly creative like a photo or song is copyrighted, the answer is almost certainly yes if it is even a little bit modern. If the original composer or photographer is still alive, forget about it, it is likely copyrighted. If your use is not allowed, you either need to get permission directly from the copyright owner or use licensed work. There are a bunch of reputable websites that offer royalty-free songs, graphics and photos for us creators. This is the way to go if you are in any way unsure about the legal permissibility of using someone else's work.

References

[1] Bridgeman Art Library, LTD. v. Corel Corp., 36 F. Supp. 2d 191, 196-197 (S.D.N.Y. 1999).

[2] Id.

[3] Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004).

[4] Hampton v. Paramount Pictures Corporation, 279 F.2d 100, 103 (9th Cir. 1960).