Understanding Copyright Licenses

When a person creates content, like a movie, book, or film, they should have primary control over who uses their work. Securing a copyright is the best way to prevent others from infringing on your work.

Copyrights give the creator exclusive rights over their original works. Of course, only some things are copyrightable. For instance, the U.S. Patent and Trademark Office (USPTO) will not issue a copyright on ideas, concepts, and facts. For something to be copyrightable, it must be in a tangible form. A drawing on paper would suffice. So would a novel in the form of a manuscript.

The following are examples of copyrightable materials:

• Movies
• Literary works (novels, plays, essays, etc.)
• Live performances
• Paintings and other artworks
• Sound recordings
• Radio broadcasts
• Software

You can't copyright ideas, concepts, and facts. A work must be in a fixed tangible form, such as a drawing on paper, to be eligible for a copyright intellectual property right (I.P. right).

As a copyright owner, you have certain rights that are exclusive to you. These intellectual property rights specifically include:

• Reproduction
• Distribution
• Public performance and displays
• Preparation of derivative works
• Digital transmission (for sound recordings)

Copyright owners also have the right to allow an agent to exercise their exclusive rights or transfer their copyright, in whole or in part. You do this by granting the third party a license to use your original work. The licensee's rights depend on the license type you grant them.

You may own a small business and want to give a manufacturing company permission to reproduce your works so you can distribute and sell them. Or you may provide a subsidiary company a license to use your trade secrets for business purposes.

Here, we'll discuss the different types of copyright licenses. We will also explain the rights that every kind of license carries. Finally, we will briefly discuss what an implied license is and how you can be careful to avoid them.

How Does One Create a Copyright License?

Copyright owners can transfer their rights to a third party through an assignment or a license. With an assignment, you relinquish your rights and sell or give them to another person or entity.

You still own your copyright even when you grant a license to someone else. The person with the license (the licensee) can legally exercise some or all your rights. A copyright license allows copyright owners to control how the licensee uses their rights.

It's a good idea to consult an intellectual property law attorney about your intellectual property rights before transferring any I.P. rights. They can help draft a licensing agreement with the other party.

Exclusive and Non-Exclusive Copyright Licenses

If you compose a written work or song you want to promote commercially, you may have to license your work to people who can distribute or perform. The intellectual property rights (I.P. rights) you transfer depend on the type of license you grant.

A license can be exclusive or nonexclusive. An exclusive license grants the licensee the right to use the creative work. With a nonexclusive license, multiple licensees can exercise the rights you transfer with the license.

To be valid, exclusive licenses must be in writing. The licensee should record the agreement with the U.S. Copyright Office. This will ensure that the licensee has I.P. protection for the copyrighted work.

Types of Copyright Licenses

Just as there are different types of intellectual property, there are various types of copyright licenses. As stated above, you must choose between an exclusive and a non-exclusive license. If, for example, you're a business owner and want to grant a license to a distributor, you would likely grant an exclusive license.

But, if there is a "Battle of the Bands" and they want to perform a song you've written, you may wish to grant a non-exclusive license. This allows all the participants to perform your song in the contest.

Once you determine whether a license will be exclusive or non-exclusive, you must decide on the specific type of license you'll grant. There are several types, including:

• Creative Commons — This is the most common type of license. Copyright owners tend to grant a Creative Commons license on books, art, photos, songs, films, and software programs. There are several distinct Creative Commons (CC) licenses to choose from. We'll discuss these in more detail below.
• Open source — This type of license typically involves computer software programs. An open-source license allows licensees to launch their programs on the copyright owner's platform. Mozilla Firefox or Internet Explorer are primary examples of an open-source license.
• Proprietary — This license type grants the licensee the right to use the copyright owner's software program. But, unlike with open source, the licensee cannot change or alter the program. Their only right is to use it.

No matter the license type, ensure the licensee signs a non-disclosure agreement.

Creative Commons Licenses

There are seven types of Creative Commons licenses. Each type grants the licensee particular rights. It can be confusing to tell one type from another. This is true for entrepreneurs who are not familiar with copyright protection or I.P. protection. This is why seeking legal advice before granting any license is a good idea.

There are four elements to a Creative Commons license:

• Attribution required (B.Y.) — The licensee must always give credit to the original creator.
• No derivative works (N.D.) — The copyright owner prohibits the licensee from using the license to create spin-offs of the work.
• No commercial use (N.C.) — The licensee cannot profit from the copyrighted material.
• Share alike (S.A.) — Any use by the licensee must be the same type of use.

The type of Creative Commons license you grant depends on the intellectual property protection you wish to give the licensee. The seven types of CC licenses are as follows:

• CC-0: This license type is only for materials in the public domain. Items in the public domain are open to all potential users. Items in the public domain are open to all potential users. Once original works of authorship enter the public domain, the creator surrenders all rights to their I.P. asset.
• CC-BY: This license allows the licensee to use the protected work, but they must cite the original author.
• CC-BY-SA: Under this license, the licensee must not only give credit but also ensure that their uses of the material are the same.
• CC-BY-ND: A licensee holding this type of Creative Commons license must give credit to the creator and cannot engage in derivative works.
• CC-BY-NC: This license gives the licensee permission to use the work, but they must credit the author, and they cannot do so for profit.
• CC-BY-NC-SA: This license is very restrictive. Not only must the licensee credit the original author, but they cannot use the work for commercial purposes. Also, all uses must be the same.
• CC-BY-NC-ND: This final type of Creative Commons license allows the licensee to use the work, but they must credit the author, cannot use it for commercial purposes, and cannot create derivative content.

Understandably, very few laypeople are familiar with these licensing codes. Why would they be? Unless you have experience with patent protection and copyright registration, these terms may sound foreign to you.

When you're ready to grant a license for your creative work or confidential information (trade secret), talk to someone from the U.S. Copyright Office. Better yet, consult an intellectual property attorney.

Implied Licenses

An implied copyright license can exist. Generally, courts recognize an implied license when the parties' conduct suggests there is a relationship.

Without a written licensing agreement, courts generally base the scope of an implied license on the community's common practices. As noted above, there is no such thing as an implied exclusive license.

For example, suppose a children's breakfast cereal creator verbally agrees with a production company to use images from one of their cartoons on the front of the cereal box. A court likely wouldn't allow the cereal maker to start a show using the cereal characters. The cereal maker may use the character on a cereal box.

Getting Legal Help

Copyright law is complicated. Seeking an experienced copyright or intellectual property attorney may be best. An intellectual property attorney can help you with all aspects of copyright law, from copyrighting your work to getting or giving a copyright license for a particular work.