When we mention confusion on DuetsBlog, we’re typically referring to the well-known likelihood of confusion test of trademark infringement. But today, we’re focused on the apparent confusion many have about the important question of: When copyright protection comes into being. If you ever have wondered whether something is or has been “copyrighted,” this post is for you.

In case you’re wondering, the inspiration for this post comes from my daughter wanting my wife to enter a photo of our four-year-old Rat Terrier (named “Lucky” — long story) in the current Orvis Cover Dog Photo Contest. (By the way, judging from the popularity of the contest, the Orvis brand is engaging in a brilliant use of social media engagement and networking). As you might imagine, I was called upon to provide some pro bono legal advice to a determined minor this past weekend on interpreting the official contest rules (containing a release and license), and this important requirement:

“Photo must be original, unpublished, and not copyrighted.”

Let’s break it down, bit by bit, as I did for my daughter:

Original: The “originality” requirement is straight-forward enough; it simply means that the photo must be an original photograph, not a copy of another’s original work of authorship or public domain material. For example, a scanned digital copy of a professional photographer’s work would not qualify as original. Originality also may imply that the photo doesn’t infringe any valid copyright held by another. Having said that, it’s hard to imagine an owner’s personally-taken photograph of his or her dog not meeting the originality requirement. We snapped Lucky’s photo ourselves, and we didn’t model the setting or pose upon another’s work, so it is original.

Unpublished: It is also understandable that Orvis doesn’t want to consider any dog photo entries that already have been published elsewhere. To be on the safe side, and to stay on my daughter’s right side, as much as I wanted to, I did not include the submitted photo of Lucky in this post, so you’ll have to check out the link to the Orvis site to witness his worthiness!

Not Copyrighted: The most curious aspect of the above-quoted contest requirement is what Orvis means by the phrase “not copyrighted.” This phrase and additional requirement is confusing, especially given the previously-discussed originality requirement, and it probably makes more than a few intellectual property types cringe, perhaps almost as much as asking whether a logo or tagline has been “trademarked“.

Why? As Karen Brennan has explained before, copyright protection exists the moment an original work of authorship is fixed in a tangible medium of expression. So, the moment we snapped the photograph of Lucky, we owned not only the tangible physical digital image of him, but the underlying intangible legal copyright in the image too. And, presumably, the same would be true for all other entrants who snapped their own photographs of their dogs. Importantly, registration is not required for the creation or securing ownership of a copyright, but it is required before one can bring a federal lawsuit to enforce rights in the copyright. So, what exactly does Orvis mean by prohibiting photos that are “copyrighted” when virtually any original photo might be considered “copyrighted,” i.e., “protected by copyright“?

To avoid internal inconsistency within the contest rules, presumably, Orvis only intends to preclude from consideration photographs that are the subject of copyright registrations, because precluding all photos “protected by copyright” would disqualify virtually all entries (as demonstrated above in the discussion on originality). The uncertainty and confusion stems from the fact that the common dictionary meaning of “copyrighted” is “protected by copyright,” and “copyright” is not only a noun meaning the “exclusive right to make copies,” but it also has a defined verb meaning: “to secure a copyright on” something that is copyrightable.

So, as is the case when one uses “trademark” or “trademarked” as a verb, it is equally important to seek clarification on what is intended by the verbing usage of “copyright” or “copyrighted” — depending on the context, it may or may not mean that a copyright registration has been obtained. Again, in the context of the Orvis contest rules, it seems to me that “not copyrighted” must be intended to exclude only photos subject to registered copyrights, since a copyright is protected and can be considered secure merely upon fixing an original work of authorship within a tangible medium of expression. We haven’t sought registration of the copyright in the submitted photograph of Lucky, so we should be good there too. But, let me know if you disagree.

In any event, my daughter kindly requests that you vote for Lucky, early and often.

And after you vote for Lucky, please remember these related oldies, but goodies too: