One of my college professors explained copyright law by describing the bribe theory. People will not create new books, new plays, etc. for free. And the only way to get people to create new things is to bribe them by giving them a monopoly over those things. This is the fundamental basis for copyright law, or as stated in the Constitution – “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The system is fairly designed to afford everyone the right to copyright his or her work. That being said, knowing the basics of copyright law is important to make sure that you have all your bases covered in order to not get sued and/or have your work stolen.
Fixation & Originality
You have a copyright on anything that is fixed and original. Fixation is any permanent form; meaning almost everything is fixed apart from jazz improvisation, live TV broadcasts (if not recorded simultaneously), etc. A work is original if it is not copied. There is a pretty low standard for this, and it’s important to note that novelty is not required. Nevertheless, a greater degree of originality will result in greater protection, and vice versa.
If a piece of work is derived from “public domain work” then it can be copyrighted as long as there is a distinguishable variation. For instance, you can receive copyright protection for a compilation as long as there is a modest amount of originality. Originality in this sense could mean nothing greater than picking the order of the best blues songs of all time. You would still need to license each song, but the order of those songs is copyrightable.
What Is Not Protected
- Mere ideas, procedures, methods, systems, processes, principles, discoveries or devices
- Titles, names, short phrases and slogans
- Familiar symbols or designs
- Listings of ingredients or contents
- Scènes à faire, basic plots, staples of literature
- Research and facts
Joint work is prepared by two or more authors with the intention that the contributions from both parties be merged into inseparable or interdependent parts of a unitary whole. The contributions do not necessarily need to be of equal quantity or quality. Both authors own the copyright and can exploit it without the other author's permission or blessing, but the exploiting author may have to provide a financial accounting to the other author(s).
Works Made For Hire
An employer is considered to be the author of a work created by an employee as long as the work was made in the course of the employee’s regular job duty. In order to determine whether or not a work was made for hire, courts generally weigh a number of factors –
- What amount of control did the employer have over the project?
- Did the company pay taxes for the employee?
- Did the company provide the employee with the tools that the employee used to create this thing?
- Did the employer have the discretion to hire and fire the employee’s assistants?
- Is the work something that the company normally creates?
- What was the duration of employment?
- Did the employee create the work on the company’s location? During the normal working hours?
The basic rule is if an employee creates something as an employee then he or she doesn’t own it. Meanwhile, if a person creates something not as an employee, then he or she owns it. It’s important to note that there are different rules for independent contractors, which are normally made with a prior written agreement that addresses this issue.
Basic Exclusive Rights
Copyright owners have five basic exclusive rights –
- Right to reproduce the work
- Right to adapt the work based on the original
- Right to distribute copies of the work to the public
- Right to perform the work publicly
- Right to display the work publicly
One of the main exceptions to these rules is if you lawfully buy a copy then you can distribute it as you choose (i.e. Blockbuster).
Copyright protection begins from the moment the work is created in a fixed form. For works created by a single author on or after January 1, 1978, the copyright lasts their lifetime plus 70 years. For works created by joint authors on or after January 1, 1978, the copyright lasts the lifetime of the last surviving author plus 70 years. Works made for hire created on or after January 1, 1978 are copyrighted 95 years from publication or 120 years from creation, whichever is shorter.
There is a common misconception that you have to register something in order for it to be copyrighted. In all reality there is no need to register or take action, as copyright protection subsists from the creation of said work. Nevertheless there are benefits of registration -
- Required for infringement suit
- Statutory damages
- Attorneys’ fees
- Presumption of copyright validity (if registered within 5 years of first publication)
- Definitive proof of creation and contents of work
At the end of the day, you should always register your copyright with the government because there are many advantages. If you don’t then you run the risk of missing out on some large damages in the event of a trial.
There can be limited use of copyrighted material without acquiring permission from the author if it falls under what’s known as fair use. In order to be considered fair use it most likely is used for criticism, commentary, news reporting, teaching, scholarship or research. Other factors are whether or not it was used for commercial or non-profit, whether or not it was transformative and whether or not it was a parody (which falls under criticism or commentary).
The nature of the copyrighted work is also important. If the work is factual than it has a much higher likelihood of being considered fair use as opposed to a creative work. Moreover, if a work is unpublished than it probably wouldn’t be considered fair use as opposed to if it were published.
The amount of the work used, as well as how substantial the portion used in relation to the copyrighted work as a whole is also relevant. For this the court does a qualitative and quantitative assessment.
The last factor to look at for fair use is the effect on the potential market or value of the copyrighted work. If the new work usurps the demand for the original work then it would not qualify as fair use.
Bandlow, Lincoln. "The Basics of Copyright Law." Law of Mass Communications. University of Southern California, Los Angeles. 25 Apr. 2011. Lecture.