A copyright lawyer (copyright attorney) can help many artists and creators these days. Copyright legal protection became essential, as artists and creators’ daily bread depends on it. In the guide below, a copyright lawyer (attorney) will present some very important information on copyright law. In this framework, we will explain what is a protected work and how it is defined. We will also explain what is a copyright infringement, how to avoid it and what remedies are available against it.
The law firm of Decker & Ofir is an Israeli boutique law firm, specializing in intellectual property (IP) and copyright. We provide comprehensive legal services to our Israeli and international clients, including legal protection of copyright in Israel and abroad, legal representation by a copyright lawyer (attorney) in copyright infringement proceedings and legal consultation in copyright and IP matters.
Why is it So Important to Protect Copyright in 2020?
2020 was a turning point for many industries. It especially affected the creative industries, since they usually depend on the wide audience as a financial source. The different Covid-19 measures and restrictions made it very difficult for artists to continue with their usual work. It happened in industries such as the music industry, the dance and theatre industry and the film industry. Even the book sales industry was affected, as we saw prohibitions on the sale of books in many countries (as they were not considered essential products).
The current situation is expected to cause many changes in those industries. New technological innovations will enable artists to develop new business plans in order to continue making profits from their works. But apart from that, this new era emphasizes the great importance of protecting copyright, in order for artists to gain revenues from their works.
Being familiarized with copyright law is important not only for those who create for living, but also for those who use protected works. The reason being that using works against the law’s provisions might lead to some undesired legal consequences. Thus, in this article, a copyright lawyer (attorney) will present to you some essential information on copyright law and the protections it grants. Furthermore, we will explain what is a copyright infringement, how it is defined in the Israeli law and what are the ways to avoid it.
Copyright Law – Background
For many decades, the Israeli copyright law was based on British legislation from over 100 years ago. This situation caused various problems, some of which were based on the fact that many forms of modern creative works (such as recorded music, TV series and computer games) did not exist back then. This situation changed in 2008, when the new Copyright Act came into force. This law changed the field of copyright completely, and made it much easier for artists and creators to protect their works.
What Exactly is a Creative Work?
Interestingly, the Israeli law does not give a clear cut answer to this question. Same applies in other countries. Instead, the law specifies different types of creative works. It is interesting to see that not only artworks are entitled to copyright protection. Apart from paintings, statues, architectural works, songs, plays, films and films, the law protects other forms of creative works. Among them are computer softwares, different drawings (such as electric circuits) and other types of works.
A creative work must be recognized as one of the above sub-definitions. But it is not sufficient in itself. It should also meet other criteria in order to be protected. It must be original, which means originated by its creators. It also must have some artistic elements. In cases of a doubt regarding the existence of artistic elements, the court will examine the work and conclude whether they exist. However, it is important to note that the court does not deeply examine how artistic a work is, and even a low standard of artistry would satisfy this criterion.
The reason behind this examination is that the law aspires to prevent granting protection for products that should not be considered as creative works. A good example is a phonebook, which although being a book, is not a work of literature. On the other hand, classical music and pop music would both be recognized as musical works, despite the great difference between them in artistic terms.
What Protections and Rights Do Creative Works Have?
The law specifies different actions that only the owner of a creative work is entitled to perform, or allow others to perform. Among those actions are copying the work, distributing it, broadcasting it, renting it and transferring it to others. The law also prevents others from creating works that are based on a protected work (that is, to make derivative works). For instance, in order to translate a book, one is required to get permission from the owner of the rights in the book. The same applies for using a chorus of a song or creating a TV series based on a character of a book.
Another important right is called “the moral right”, which means the right to get credit for a work and also the right not to use the work in a way that distorts it or harms the creator’s reputation. If we take a painting as an example, even if the rights in the painting were sold or transferred, giving credit to the creator is still required. Avoidance from doing so may be considered as copyright infringement and base grounds for legal actions (C&D letters, lawsuits, etc,).
The creators of a work also enjoy the right that their work would not be presented in a way which is against their values. An example could be using a song made by a devoted religious singer in a commercial with sexual content. It might as well be considered as an infringement of the artist’s moral right.
The Term of Copyright Protection and the Ability to Transfer It
The rights in a protected work are property rights, similarly to property rights on a car or a house. It means that they can be transferred to others, by way of rent, sale or inheritance. It is also possible to grant licenses for particular uses of a work. For instance, a production company can purchase the right to broadcast a song in a TV series. Such a license would still prevent the production company from using the song for other purposes.
However, unlike in the case of an ownership of a car or a house, which can theoretically last forever, owning a protected work is limited in its term. Currently, the law postulates that the ownership would last for the life of the creator, and additional 70 years after his/her death. The term of ownership is being limited in order to balance between the creators’ interest to enjoy the fruits of their labor and the interest of the public to use the work. After the term of protection ends, a work becomes a part of the public domain. For that reason, nowadays anyone can use classical music works of composers such as Mozart and Bach.
Who is the Owner of a Creative Work?
The first owners of a work are usually the artists or creators. Sometimes there is one creator and sometimes a group of creators. Yet, in many cases, the creators transfer their rights. As explained above, a work is like a tangible asset that can be transferred. Thus, not always the creator would be considered as the owner of a work.
An example would be a painter who sells her paintings to another person. If it wasn’t settled otherwise, the ownership of a work would be transferred to the purchaser. Still, if the new owner would display the work publicly, or publish a copy of it, generally giving credit to the painter would still be required, due to the moral right, on which we explained above.
At times, there are cases where works are made for others from the beginning. A common example is a work which is made in the workplace. A person working in a startup company and writing a software code, usually agrees in advance that the software is made for the employee. Accordingly, the creator would usually waive his copyright. Similarly, a musician who works in an advertising company and composes music for radio commercials, would usually waive her copyright in the compositions.
What is a Copyright Infringement?
Copyright infringement means making a certain use of the work, while this use is reserved exclusively for the owner. The law states that one cannot use a work or allow others to use it, without the owner’s permission. Doing so would be considered as a copyright infringement. It means that even someone who did not commit an infringement on his own, but allowed others to use a work while not being permitted to do so, might still be exposed to legal actions.
For instance, playing music in a chain of convenience stores requires a license and payment of royalties to the owners of the rights in the music. If the owner of the chain allows her franchisees to play music without a license, both the owner of the chain and the franchisees might find themselves being sued for copyright infringement.
Copyright infringement can be in the form of copying a work, but also renting it, broadcasting it, publishing it and so on. Nowadays copyright infringement happens in rather more sophisticated ways. It can happen by using a part of the work, and not only by copying an entire work.
How to Avoid Committing Copyright Infringement?
The best way is to contact the owner(s) of a work and request permission for any unauthorized use, and to give credit to the creators when using their works. It is important to locate all of the owners and get their permission (license), while specifying all the different uses that are included in the particular license. It is important not to go beyond the authorization that was given, and in any case of a doubt regarding a certain use, we recommend consulting an expert copyright lawyer (attorney), in order to avoid infringements.
Yet, there are cases where license is not necessary. The Israeli law includes a number of permitted uses of a work. The main permitted use/defense is called “fair use.” It means using the work for the purposes of “private study, research, commentary, review, journalistic report, quotation, or teaching and examination by an educational institute.”
It means that in some cases it will be acceptable to use a work for different purposes, even without the need to get the owners’ permission. However, it is quite difficult to conclude in specific circumstances what would be considered as a fair or permitted use. It depends on various factors, such as the scope of the use of the work, the purpose of the use and its character. Therefore, we recommend seeking legal consultation in any case of a doubt regarding this question.
Updates in Copyright Law
The law keeps on updating, in an attempt to follow the rapid developments of the modern digital world. One of the latest updates of the law was designed to handle the multiplicity of copyright infringements on the web. The law states that courts can now issue orders that would limit the access to infringing websites or web content. If you would like to remove infringing content from the internet, a copyright lawyer (attorney) may help you with filing a motion for such order.
Another update is with regards to the many contemporary or past creative works in which the owner of a work is unknown. Imagine yourself watching the TV, and all of a sudden a video you took with your phone appears on a news report, without any credit to you as the creator of the video. To solve this problem, which only became more and more common lately, the law now states that using such a work requires mentioning that the owner is unknown. The media outlet is required to publish contact information, so that the owner of the work could reach out and demand credit or stoppage of the use.
In this article an Israeli copyright lawyer (attorney) explained about copyright law, its protections and avoidance of infringement. If you have more questions or need legal assistance in copyright matters, you may contact the law firm of Decker & Ofir. Our attorneys specialize in copyright law and IP protection in many other fields, including trademarks, designs and trade secrets.