Copyright: a brief overview
Copyright is a form of intellectual property that protects original works. Copyright protection begins when your original work is "fixed in a tangible medium" (for example, it is recorded in video or audio, stored on a computer, written on paper, photographed on your phone, etc). When a work is protected by copyright, others can not reproduce, sell or perform the work without the permission of the author(s), unless one of the exceptions (such as fair use) applies.
Copyright protection typically covers the following types of work:
- Videos (such as an archive of a Twitch stream)
- Sound recordings and musical compositions (such as an original song you sing while streaming)
- Video games and computer software
- Visual works (posters, paintings, ads, photos, graphics)
- Written works (poems, lectures, articles, books)
Processes, ideas, names and common symbols are typically not copyrightable, although protections might be available under other types of intellectual property law, such as trademark protection.
This protection is not based on who is the first user to register the copyright. In most cases, copyright protection will immediately attach upon creation of your original work.
Some examples can help illustrate what kinds of works are protected by copyright. When a work is protected by copyright, others can not reproduce, sell or perform the work without the permission of the author(s), unless one of the exceptions (such as fair use) applies.
1. A Twitch user streams themselves playing a game. Is any of that copyrightable?
Yes! Provided that the Twitch user has the rights to stream the game, and there are no restrictions in the game’s end user license agreement (EULA), the streamer is creating a “derivative work”: a new creative work that features the content of another creative work, but is sufficiently original that it enjoys its own copyright protections.
If this work is fixed in a tangible medium (e.g. the streamer recorded their livestream), the streamer obtains copyright owners in their derivative / original contribution, for example the commentary the streamer provided. As a result, others will need your permission to use this derivative work.
2. A Twitch user uploads a VOD of themselves singing an original song. Is that copyrightable?
Yes! This creative work constitutes a sound recording, and if it was “fixed in a tangible medium” by being recorded on the user’s computer. Copyright protection attaches.
Other individuals or organizations will need your permission to use, reproduce or broadcast your work. However, note that the example concerns an original song. To the extent that you are reproducing a song that was made by someone else, you need their permission. Failing to obtain permission may result in a DMCA takedown notice.
3. A Twitch user live streams their travel. Is that copyrightable?
Maybe. Such a video stream would typically be considered a creative work, but live streams are ephemeral and do not meet the criterion of being “fixed in a tangible medium”, unless they are being recorded (e.g. from your desktop, iPhone, GoPro, etc.). Not only does this recording fix the stream in a tangible medium, this recording can also act as proof that the work was created at a certain date.
4. A Twitch user makes a painting on stream. Is that copyrightable?
Yes! Such visual work would be protected by copyright law. As a result, a viewer who takes a screenshot of the painting and starts to reproduce it on posters, t-shirts and mugs would be violating copyright law if they did not obtain the permission of the creator.
Do I need to file anything to obtain protection?
When you create a copyrightable work, copyright protection will immediately attach. However, you can enhance this copyright protection by officially registering your work with the United States Copyright Office.
Registering your copyright with the Copyright Office makes your copyright part of the public record. This registration makes it easier to prove your copyright ownership if someone does attempt to steal or copy your work, and provided it is timely registered, you can get additional damages in the event of a dispute. Additionally, in the United States, copyright registration is considered prima facie (accepted until proven otherwise) evidence of copyright ownership.
To register your copyright with the Copyright Office, visit the Copyright Office’s Registration Portal.