Copyright protects how a piece of artistic work is visually or aurally represented, including artworks, photographs, videos, films, lyrics, music etc. It does not protect the underlying idea. For example, you cannot protect the idea of a picture of a tree growing upside down out of the sky. Still, it could be problematic from a legal perspective if you were to reproduce how that idea is substantially reproduced visually, such as copying the original work too closely. The author usually owns the copyright in the works upon creation, unless the works are created by a person as part of their employment, in which case the ownership of works vests automatically in the employer. In this regard, you must be careful when retaining freelancers and consultants to ensure you have appropriate IP rights.
The copyright owner can authorise others to use the works via a licence (i.e., the right to use the works subject to specific terms and conditions) or assign the copyright (i.e., give up the ownership rights) to a third party. Before retaining any person to produce any work, these important and valuable rights should be considered.
If a person substantially reproduces a copyright-protected work without having the requisite permission, then it is likely to amount to copyright infringement, and the owner can take legal action. Whether a work has been substantially reproduced will be based on the type and amount of the work that has been copied, which will be assessed from a qualitative (i.e., the intrinsic value of the work that has been copied when considering the work as a whole; for example, a synonymous line associated with a movie – Clint Eastwood – “…do you feel lucky punk…”) and quantitative basis (i.e., the amount of the overall work that has been copied).
Copyright does not last forever and is usually extinguished after 70 years from the author’s death or from the date it was first created/published (depending upon the type of the work). After the copyright expires, the work becomes available in the ‘public domain’ and can be used without permission from the owner of the work. Be mindful that although the original work may be in the public domain, an adaption of the original work by a third party may still be in copyright, i.e., the adaption is an original work itself, and copying could raise legal issues.
To help avoid running into claims of copyright infringement, you must carefully check what is required and ensure you can obtain the necessary rights to use the works for the purposes intended. For example, a company may require full ownership of the works (i.e., a complete assignment, namely full ownership rights). Still, the owner or licensor may only agree to supply a limited licence on the terms agreed between the respective parties. In addition, the cost of obtaining an assignment will far exceed a licence’s price. This must be discussed with the company trying to acquire the rights from the outset, and you should have a chain of evidence that grants the rights required for the company, which is documented and agreed upon in writing. If you do not have something set out in writing, you will only be able to rely on an implied licence, which is fraught with risk.
A company must also consider the legal risks of using someone’s copyright-protected works. For example, the risk profile of a child posting something on social media is far less than a company that publishes the same copyright-protected works.