copyright protection:
from Monkey Selfies to Cézanne
Mike Seyfang via Flickr.
By Kimberly Peaslee
Every day each of us interacts with works protected by copyright
– at work, at home, online. Understanding what can be protected via
copyright, how it can affect us as both consumers and creators, and when
we need to seek permission to use another’s work enables us to avoid
potential legal disputes.
Copyright protection in the United States is based on the Constitution and is governed primarily by federal statutes.1 Additional statutory
rights are afforded to authors who federally register their copyrights with
the Copyright Office within either three months of publication, or before
there is any infringement of the work.2 These additional rights can be
significant and will be discussed in more detail later in this article. Also
outside the scope of this writing is the fact that US copyrights are also
protectable around the world through various treaties.3
As stated in the Copyright Act of 1976, “copyright protects an author’s creative expression once it has been fixed in a tangible medium.”4
While this statement may seem simple, further inspection reveals that it
is complex. Copyright is not a single right, but rather a bundle of rights
including the right to copy, distribute, perform publicly, display publicly,
and create derivative works.5 Each of these rights can be owned and/or
licensed, separately or as a whole.6
Copyright Ownership
To be an “author,” one must contribute sufficient creativity to a
“work” to satisfy the requirements for copyright protection. The Copyright Office has recently clarified that an author cannot be a plant, an
animal, or nature itself.7 While that might seem obvious to some, a series
of “monkey selfies” recently garnered international attention when a
photographer’s camera was stolen by a Black Macaque and used to take a
series of self-portraits. See, for example, Figure 1. When the portraits were
uploaded onto Wikipedia as part of their creative commons project, the
owner of the camera, David Slater, attempted to claim ownership of the
copyright in the images, arguing that the camera was his and had cost

26 
him a lot of money. As Slater soon found out, ownership of the camera
has no bearing on the authorship or ownership of the copyright in the
resultant photographs.
The now famous “monkey selfies” are not a case of joint authorship, either. Generally, barring a written agreement, a work created by
co-authors is jointly owned by the authors.8 To be a joint work, the work
must be created by two or more authors, the contributions by each author
must be inseparable or interdependent parts of a single work (e.g., art for
a graphic novel), and the authors must have intended their contributions
to be merged into a single work.9 Furthermore, each contribution must
be of sufficient originality as to be independently copyrightable.
When a work is jointly owned, each owner has an undivided interest
in the rights to the whole work.10 Joint authors have the right to exploit
those rights without permission of the other owner, but they also have a
duty to account to the other owners their share of the profits from any
exploitation of the work.11
While it may seem counterintuitive, two people can independently
create the “same” work.12 If there is no evidence of copying, either direct
or indirect, then each individual person is the sole author and owner of
his or her respective work, even though the works are not unique.
Generally, an employer is the author of a work created by an
employee within the scope of his or her employment.13 This is referred
to as a “work made for hire.” A classic example is a software developer
working for a software company. A “work made for hire” is statutorily
defined and also refers to limited instances of commissioned works.14
Having agreements in writing is important in issues of copyright
ownership. Because ownership in a copyright initially vests in the author,
it is very important to have the artist/author assign the copyright to you,
so there is no confusion as to the intention of the parties.15 To ensure
that you own the copyright to works that you have created specifically
for yourself, it is prudent to have an agreement in writing.
Qualifications for Copyright
As expected, there must be some element of creativity in a work
for it to warrant copyright protection at all.16 Copyright protection does
New Hampshire Bar Journal
Fall 2014
Figure 1: One of the now famous “monkey selfies” at the center of the Wikipedia/David Slater spat.
not extend to single words, slogans, ideas, facts, processes, or the like.17
Those types of “expressions” may be protectable through other means,
including trademark or patents if they cannot be copyrighted.
An “expression,” as defined in the statute, includes, but is not
limited to, a literary work, musical work, dramatic work, pantomime
or choreographic work, pictorial, graphic or sculptural work, motion
picture or other audiovisual work, sound recording, architectural work,
or some combination thereof.18
Because some works may fall into various categories, or consist of
several protectable forms, a license granted to use a particular work must
be clearly defined. For example, if you are interested in publicly playing
a sound recording, then you may also need permission to use the lyrics,
the musical composition, or other copyright-protected components.
There are clearinghouses to help establishments, such as restaurants and
retail stores, obtain the proper permissions needed to play large libraries
of music at their particular venues.19
For a creative expression to be “fixed” in a tangible medium, it
must be capable of “being perceived or otherwise communicated for a
period of more than transitory duration, either directly or with the aid of
a machine or device.”20 Common examples are photographs, recordings,
printed or written works, or works viewable on a computer. Examples of
things that would not be copyrightable unless fixed in a tangible medium
are storytellers, a sports team, or a dancer performing live.
It is also important for the fixation of a work to be by or with the
permission of the author.21 Once a football game has been recorded with
the permission of the NFL, for example, the recorded game is copyright-
Fall 2014
able, and broadcasting the game without permission could violate the
copyright and be actionable, unless the broadcast falls into the statutory
exception.22
Copyright Registration
Once you have created a work, the next step is to balance the benefits
of registering your work against the risks of not registering your work
within a certain period of time. Because there is neither state copyright
protection nor any “poor man’s copyright,” your copyright must be federally registered if you wish to sue in court to protect the copyright.23 Federal
registration costs roughly $50 per work and consists of a submission of
some representation of the work along with a completed application
form.24 In some cases, an actual copy of the work must be submitted.25
If certain criteria are met, you may register several works as a collection
to save on fees.26 The requirements for registration differ depending on
whether the work has been published; “publication” in the copyright
context generally relates to the circumstances under which there has
been some transfer of ownership.27
If you federally register your copyright within three months of publication, or before an infringement occurs, the benefits of that registration
include the right to recover statutory damages and attorney’s fees in
actions related to your copyright.28 If you do not register your copyright
until after an infringement has already occurred, you can only recover
actual damages and lost profits.29 Having to prove damages can add
considerable costs to enforcing your rights.
There are other benefits to federal registration, as well. Federally
New Hampshire Bar Journal

27 
registering a work within five years of publication is prima facie evidence
that the copyright registration is valid.30 Federal registration also allows
you to record the registration with US Customs, which can help prevent
the importation of infringing articles.
Copyright Terms and Infringement
Depending on the identity of the author of a copyrighted work,
the term of copyright protection can vary. In the case of an individual,
the copyright for a work lasts for the author’s life, plus 70 years.31 In
the case of joint authors, the copyright lasts for 70 years after the last
surviving author dies.32 For “works made for hire,” the copyright lasts
for 95 years after publication, or 120 years from creation, whichever is
shorter.33 The extraordinary length of time protection lasts can make the
search for permission to use a copyrighted expression difficult, but no
less important.
As a general matter, the use of any of the bundle of rights (i.e., the
right to copy, distribute, publically perform or display, or create derivative
works) afforded to the copyright owner without the owner’s permission
constitutes copyright infringement.34 To prove direct infringement, a
copyright owner must show a valid copyright in the work and that the
“infringer” exercised any one of the exclusive rights.
Copying can be evidenced indirectly by demonstrating that the
alleged infringer had access to the copyrighted work and that there are
similarities between the works. It is not a defense to an infringement
claim to say that you diligently tried to get permission but could not. This
is true even if you could not find the work’s owner. If you cannot obtain
written permission to use a copyrighted work, it is generally better to
choose another work, or create a work yourself for a particular purpose.
The penalties for copyright infringement can include injunctions,
the destruction of infringing articles, damages, enhanced damages for
willful infringement, costs and attorney’s fees, and even imprisonment.35
With stakes this high, it is important to ensure that anyone you hire
to create a website for your business, for example, is clear on the risks
involved in a copyright infringement action.
There are limitations on the scope of copyright protection - including some affirmative defenses to copyright infringement - but it is wise
to understand under what circumstances these exceptions may apply, so
as to avoid being lulled into a false sense of security. For example, it is
becoming easier and easier to copy the images of others and post them
to social media sites. It may even appear that no one is being punished
for using copyrighted works in this manner. While there may be instances
of artists/authors welcoming the added publicity, there are certainly other
instances where unauthorized use of another’s work results in a lawsuit.
One consolation for visual artists, at least, is that it is getting easier to
track the use of your images online, but this does require active policing
on the Internet.36
One recent example of copyright infringement on social media
involved Daniel Morel, a photographer on location in Haiti during the
2010 earthquake. Morel tweeted several photographs of the devastation;
within hours his photographs had been retweeted all over the world and
were being attributed to someone other than Morel. The Southern District
of New York found that Getty Images and Agence France-Presse willfully

28 
copied Morel’s photographs without his permission and awarded Morel
$1.2 million in damages.37 While this case involved sophisticated parties,
these types of lawsuits could impact anyone who uses social media. It is
important that every social media user has an understanding of what is
and is not permitted on the respective sites and, at the very least, reads
the terms and conditions for each such platform he or she uses.
One often-discussed affirmative defense to copyright infringement
is Fair Use.38 Fair use generally falls into two categories: parody and
commentary/criticism. The first major category of fair use, parody, is
typically a piece of writing or music that deliberately copies another
work in a comic or satirical way. By definition, parody requires that a
substantial amount of a relatively well-known work be used by another.
The second major category of fair use, commentary and criticism,
encompasses news reporting and educational uses. When commenting
on or criticizing a copyrighted work, the fair use doctrine allows some of
the copyrighted work to be reproduced to achieve that purpose. However,
to qualify as fair use, courts typically take the position that you should
use only what is necessary. As you might imagine, what is “necessary”
depends on the situation. Some examples of commentary and criticism
include quoting lines from a song for a music review, summarizing a
scientific study for a news report, or copying a portion of an article for a
class you are teaching.
Determining fair use requires the court to use a balancing test, and
each case is very fact-specific. Some of the factors considered by the courts
include 1) the purpose and character of the unauthorized use, 2) the
nature of the copyrighted work, 3) the amount and substantiality of the
portion used without permission, and 4) the effect of the unauthorized
use on the potential market for the copyrighted work.39
The first factor, the “purpose and character of the use,” focuses
on two issues; first, whether the use is a commercial use, and second,
whether the use is transformative.40 A transformative work is one that
adds something “new” to the copyrighted work, whether that is a new
meaning, a new expression, or a new message.
The second factor, the “nature of the copyrighted work,” reflects
both the level of creativity and whether or not the work was “published”
in the copyright context. The Supreme Court has held that it is unlikely
to be fair use if the work has not been published, because the author
generally has the right to control the first public appearance of his or her
work.41 Also, if the work is highly creative, it is generally afforded greater
protection than informational or functional works.42 A highly creative
work might be a painting or a sculpture, while an informational work
might be an instruction manual.
The third factor, the “amount and substantiality of the portion
used,” assesses the quality, not the quantity, of what is used. If, for example, another uses critical passages from a work or summarizes the
whole work (e.g., the unauthorized use goes to the “heart” of the work),
then it may not be fair use.43 However, the amount and substantiality
used may need to be high if, for example, the new work is a parody.
The fourth factor, the “effect of the use on the potential market to the
copyrighted work,” focuses on whether the unauthorized use harms the
owner or even replaces the original work. This is another very important
factor in the fair use analysis, in addition to the purpose and character of
New Hampshire Bar Journal
Fall 2014
the use. When there is direct competition between the works, the courts
will typically rule against the alleged “infringer.”
As with other applications of fair use, fair use in the copyright
context is a balancing of one’s intellectual property rights with another’s
First Amendment, or free speech, rights and requires the consideration
of multiple factors. It is generally not fair use to post copies of another’s
photos, quotes, or writings on the web without permission, especially on
your business website. Similarly, posting items on social media can be
problematic because the simple act of “liking” something is unlikely
to qualify as commentary or criticism. A review of a particular website’s
terms and conditions can clarify many circumstances in which potential
infringement could occur.
As a consumer or creator of copyrightable works, a written agreement
is generally well worth the effort and expense. A well-crafted agreement
between the author of a work and a commissioner/user/purchaser of a
work can help avoid the cost of defending against or enforcing a copyright
claim in court by clearly memorializing the intent of the parties. It is wise
to seek out competent counsel versed in copyright issues to determine
whether a license or an assignment is better suited to a particular situation and also to determine what terms might be relevant to the particular
relationship. It is also important to note that while you may purchase
a work (e.g., a painting or a sculpture) from an artist or a gallery, the
copyright does not flow with the work.
One related area of the law that has caused some confusion is the
First Sale doctrine, which permits a purchaser of a particular work to
sell, display, or otherwise dispose of the particular copy of the work that
was purchased.44 This right is somewhat unique to the United States and
in no case does it extend to additional copies of the work.
Additionally, under New Hampshire law, art dealers are required to
have a written agreement with their artists.45 As an artist/author, if you
are interested in showing your work in a gallery, you should carefully
review the written agreement with the gallery to make ensure that each
party’s expectations are clearly defined. As a third-party purchaser, it is
also wise to have a written bill of sale to memorialize the agreement.
Copyright law is broad and has many nuances. Copyright protection touches fine art, branding, industrial design, and countless other
aspects of our daily lives – even the simple use of social media. I hope
this article has provided you with a basic understanding of copyright’s
commercial and cultural value and has sparked an interest in learning
more.
ABOUT THE AUTHOR
Kimberly Peaslee, who is admitted to
practice in several states and to the
national patent law bar, works with
a range of clients to help capture and
protect their intellectual property assets.
She practices at Upton & Hatfield, LLP in
Concord.
Fall 2014
Endnotes
1 United States Constitution, Article 1, Section 8, Clause 8;Copyright Act of 1976,
17 U.S.C. §§101-805.
2
17 U.S.C. §504; the Copyright Office is part of the Library of Congress.
3
Id. §101.
4 Id. §102.
5 Id. §106.
6 Id. §201.
7
U.S. Copyright Office, The Compendium of U.S. Copyright Office Practices §306
(3d ed, 2014).
8 17 U.S.C. §201.
9 Id. §101.
10 Id. §106A.
11 H.R.Rep. 94-1476 at 121.
12 Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340,345 (1991).
13 17 U.S.C. §101; §201.
14 Id.
15 Id. §201.
16 Feist, infra n. 14 at , 358.
17 17 U.S.C. §102.
18 Id.
19 There are several clearinghouses for music licensing including, but not limited to, BMI,
ASCAP, and SESAC.
20 Id. §101.
21 Id.
22 See Id. §110. Establishments of certain size, etc. may be allowed to display the game
under certain circumstances but are not able to rebroadcast the game.
23 Id. §301.
24 See www.copyright.gov/eco.
25 Id.
26 Id.
27 17 U.S.C. §101.
28 Id. §412;§§504-505.
29 Id. §504.
30 Id. §410.
31 Id. §§302-303.
32 Id.
33 Id.
34 Id. §501.
35 Id. §§502-506.
36 There are services and websites directed to mining the internet for image files. One such
example of a reverse image lookup is by Tineye at https://www.tineye.com.
37 Agence France-Presse v. Morel, case number 1:10-cv-02730, in the U.S. District Court
for the Southern District of New York (2013).
38 17 U.S.C. §107.
39 Id.
40 See Cariou v. Prince, 741 F.3d 694 (2d Cir. 2013).
41 See Harper & Row Publishing, Inc. v. Nation Enterprises, 105 S.Ct. 2218 (1985).
42 See Stewart v. Abend, 110 S.Ct. 1750 (1990).
43 See Harper & Row, 105 S.Ct. at 2231.
44 17 U.S.C. §109.
45 N.H. REV. STAT. ANN. § 352:7 (2014).
New Hampshire Bar Journal

29 