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No, I don't know what a 'copyright' is. But, I have a feeling I am about to find out.

No, I don’t know what a ‘copyright’ is. But, I have a feeling I am about to find out.

Author’s Note: This is the first post on Copyrights in our on-going series that will give a overview of ‘basic’ topics regarding Trademarks and Copyrights.  The hope is that this series will provide a strong introduction to Trademarks and Copyrights for readers who are relatively inexperienced, as well as a good refresher for others.

What is a Copyright?

A copyright is essentially a set of exclusive legal rights to a  original creative work (usually called a “work of authorship”) that is granted to the author for a set period of time.  Under the United States Copyright Act of 1976, the following exclusive rights (meaning no one but the author may exercise them, unless the author gives permission) are reserved for an author of a copyrighted work:

  • to reproduce or make copies of the work
  • to prepare derivative works (i.e. to make modifications or adaptations to the original)
  • to distribute copies of the work
  • to perform or display the work
  • to have the work transmitted (i.e. over the radio or on TV)

Under U.S. Copyright law, an author receives copyright protection for a work as soon as the it has been fixed in a tangible medium of expression.  For an example, as soon as you write out a short story, you now have a copyright in that story since it has been fixed in a mode of expression that others could view or copy.  The same with making a film or sound recording. However, having a tune stuck in your head, but failing to write out the musical notes from it, would not entitle you to copyright protection for that tune.  Registration of a work with the U.S. Copyright Office is not required in order to receive copyright protection, however doing so does confer additional advantages to the copyright owner, namely the ability to seek statutory damages against an infringer.

Currently, an author’s copyright in a work lasts for the life-span of the author, plus an additional 70 years. For example, let’s say in the year 2000 (to make the math simple) you write the next Great American Novel (mazel-tov!).  However, due to the lavish lifestyle the income that your celebrated book affords you, you end up dying in 2030 due to an excess of good living (too bad!).  Your novel would continue to have copyright protection until 2100 (and your heirs would continue to profit from the income).  Of course, copyright extension for a work can be extended by an act of Congress, such as what was done for certain works by the Copyright Term Extension Act.

In the U.S., Copyright law is the domain of Federal Law.  The United States Constitution grants to Congress the power, “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.” (Note: This is the same clause that also gives Congress the right to pass laws governing patents).  Currently, Copyright Law is statutorily governed by the Copyright Act of 1976 and its amendments.

Copyright protection can be given to a broad variety of subject matter.  For instance, books, letters, songs, paintings, choreography, plays, music, sculptures, software, architectural plans, movies, sound recordings, TV shows can all be copyrighted.  However, there a limitations to what is copyright-able.  Section 102 of the Copyright Act explicitly lists ideas, procedures, processes, systems, method of operations, concepts, principles, and discoveries as not being eligible for copyright protection.  Additionally, while not stated in the statute as such, and courts do not normally assess the artistic value of a work, some level of ‘minimum creativity’ is required for copyright protection.  Hence, writing a simple story about a boy playing fetch with his dog might not be the most creative story ever written (and is pretty boring from the sound of it), but it probably would satisfy the minimal creativity test.  However, merely listing facts or data in a book or publication would not be copyright-able since facts themselves are not subject to copyright and there was no creativity displayed in the listing of them.  A famous copyright case involved two publishers of telephone books, one who accused the other of blatantly copying the information contained in its phone book.  The Court held that the names, addresses, and telephone numbers contained in the phone book were not protected by copyright, and the plaintiff’s telephone book as a whole was not subject to copyright protection either, since there was nothing creative about how it had organized or expressed the information in the phone-book (like all phone-books, information was listed alphabetically by name), regardless of how much time and effort it took to create the phone-book.

Some other exceptions to Copyright protection are (there will be a more in depth post on these sometime in the future):

  • Ideas themselves aren’t protected, only the expression of an idea that has been fixed in tangible medium is.  For example, a professor may write a paper detailing his brilliant new theory on why the Roman Empire collapsed.  If another person writes his own paper that repeats the theory, but details and describes it using his own words, not those of the professor, than he has not violated the professor’s copyright (although he may be guilty of plagiarism, an ethical violation, if he didn’t give credit to the professor).  Note, this divide between idea and expression is less clear-cut when dealing with fictional works.
  • ‘Useful articles’ or works that serve a functional or useful purpose are not copyright-able.  However, if a useful work contains artistic elements, than copyright protection might be extended to those elements only.  For example, a toilet is not copyright-able, but if the toilet featured an elaborate design on the bowl of puppies ‘investigating’ fire hydrants, than that design may receive copyright protection, but only the design itself, not the rest of the toilet.

Similar to there being limitations to what can receive copyright protection, there are also exceptions to an author’s broad, exclusive rights in a copyrighted work.  The Copyright Act allows for circumstances where others may make use of a work, and not be considered to be infringing on the author’s copyright.  This is called ‘Fair Use’ (which also will be the subject of its own future post).  Purposes that the statute lists explicitly as being fair use include criticism, commentary, new reporting, teaching, scholarship, and research.  Other purposes may also be considered to be fair use and the Copyright Act provides a four factors that should be weighed in making that determination:

  • the purpose and character of the use
  • the nature of the copyrighted work
  • the amount and substantiality of the work used, in relation to the work as a whole
  • the effect of the use upon the potential market for or value of the work

Additional exceptions to an author’s exclusive rights exist for libraries, archives, educational institutions, and public broadcasters.

What is the purpose of Copyright Law?

The goal of copyright law is arguably two-fold: A) it is meant to help enrich and encourage art and culture to flourish by providing incentives for authors to create and B) provide a framework by which authors are able to benefit and profit from their work.  How successful U.S. copyright law is in achieving and balancing these goals are a matter of some debate.  Some argue that the protections and rights that are reserved for authors for a limited time are way too broad and actual hamper creative expression and use by society of those creative works.  Critics often point to how long copyright protection currently lasts for under statute, and the uncertainty that a lot of times results around whether a use is to be considered fair use or not as support.  Others argue that there are not broad enough exceptions for academic and scholarly use.  On the flip-side, there are those who believe the robust protections and exclusive rights given to an author are necessary in order to have authors who are willing to invest there skills and talent in creating works of cultural benefit.  As you can see, there is inherent in copyright law a balancing aspect between these two goals, and the question on how best to go about satisfying both is one that is not likely to be settled for a long time.