Copyrights
Copyright protection is available for certain types of original works. It allows authors, artists, and other creators of original works to create works without fear of someone else copying and profiting from their work. FindLaw's section on Copyrights provides information and resources on getting copyright protection for your own work, licensing copyrights, using someone else's copyrighted material, and much more. In this section you can also find links to forms and resources from the U.S. Copyright Office.
What Can Be Copyrighted?
Copyright is a type of intellectual property protection that protects the "form of material expression." This means that facts, ideas, concepts, or techniques of a particular work are not protected. For this reason, copyright protection is only available for works that are fixed in a tangible form. Examples of fixed in tangible form are a story written on paper or a painting on canvas. The categories of works that are protected under copyright law include software, paintings, literary works, photographs, movies, sound recording, musical works, and television broadcasts.
Rights of a Copyright Owner
A copyright owner is afforded certain exclusive rights over the work. The copyright owner has the exclusive right to reproduce the work, sell the work, and perform or display the work publicly. The copyright owner also has the exclusive right to create derivative works, which are new works based on the original copyrighted work. If the copyright owner would like to give these rights to another person, he or she has the option to transfer ownership or give a person a license to use the work. If the copyright owner transfers his or her rights, he or she ceases to be the copyright owner. If, on the other hand, the copyright owner gives someone a license, then he or she is still the owner of the copyright, he or she simply gives certain rights to use the work.
Requirements for Copyright Protection
The main requirements to receive copyright protection are that it is an original work and fixed in a tangible form. While registration with the U.S. Copyright Office is not a requirement for receiving copyright protection, there are benefits to registering a copyright. For example, registration of a copyright provides a public record of the copyright claim in the work. Registration is also required before you can file a copyright infringement lawsuit.
Original works created after March 1989 are not required to include a copyright notice to have copyright protection; however, there are benefits to having a copyright notice on your work. The notice of copyright alerts the public to the fact that work is under copyright protection and identifies the year the work was first published and the copyright owner. In addition, including a copyright notice doesn't require any formal steps – you simply need to include the notice in your work.
Hiring an Intellectual Property Attorney
Whether you would like to find out if your work qualifies for copyright protection or you would like to find out if you can use someone else's work, an intellectual property attorney can help you navigate through all the aspects of copyright law.
What is the Difference Between Copyright, Patent and Trademark?
Copyright, patent, and trademark are all different types of intellectual property (IP). Although the three types of IP are very different, people often confuse them.
A brief description of copyright, patents, and trademarks, including a brief discussion of how these forms of IP differ from copyright, is provided below.
What’s Copyright?
A copyright is a collection of rights automatically vested to you once you have created an original work. To understand how these rights can be used or licensed, it is helpful to analogize them to a bundle of sticks, where each stick represents a separate right vested to you as the owner. These rights include the right to reproduce the work, to prepare derivative works, to distribute copies, to perform the work publicly, and to display the work publicly.
As the copyright owner, you have the authority to keep each “stick,” to transfer them individually to one or more people, or to transfer them collectively to one or more people. This can be accomplished through licensing, assigning, and other forms of transfers. The power of copyright allows you to choose the way your work is made available to the public.
As the copyright owner, you have the authority to keep each “stick,” to transfer them individually to one or more people, or to transfer them collectively to one or more people. This can be accomplished through licensing, assigning, and other forms of transfers. The power of copyright allows you to choose the way your work is made available to the public.
What’s Patent?
The primary goal of the patent law is to encourage innovation and commercialization of technological advances. Patent law incentivizes inventors to publicly disclose their inventions in exchange for certain exclusive rights. A patent protects inventions. These inventions can include new and useful processes, machines, manufactures, compositions of matter as well as improvements to these. Certain computer programs may fall within the subject matter protected by both patents and copyrights. In this respect the patent system compliments copyright protection by providing protection for functional aspects of the software, which are not protected by copyright. Unlike with copyright protection, to get patent protection one must first apply for and be granted a patent from the U.S. Patent and Trademark Office (USPTO). Unlike the copyright registration process, the patent application process is expensive, complex, difficult, and time consuming and generally should not be attempted without the assistance of an experienced patent attorney or agent.
What’s Trademark?
According to the USPTO, “a trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Examples include brand names, slogans, and logos. (The term “trademark” is often used in a general sense to refer to both trademarks and service marks.)” Similar to copyright, a person does not need not register a trademark or service mark to receive protection rights, but there are certain legal benefits to registering the mark with the USPTO. There is rarely an overlap between trademark and copyright law but it can happen — for instance, when a graphic illustration is used as a logo the design may be protected both under copyright and trademark.
| Copyright | Patents | Trademark | |
|---|---|---|---|
| What’s Protected? | Original works of authorship, such as books, articles, songs, photographs, sculptures, choreography, sound recordings, motion pictures, and other works | Inventions, such as processes, machines, manufactures, compositions of matter as well as improvements to these | Any word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others |
| Requirements to be Protected | A work must be original, creative and fixed in a tangible medium | An invention must be new, useful and nonobvious | A mark must be distinctive (i.e., that is, it must be capable of identifying the source of a particular good) |
| Term of Protection | Author’s life plus 70 more years. | 20 years | For as long as the mark is used in commerce |
| Rights Granted | Right to control the reproduction, making of derivative works, distribution and public performance and display of the copyrighted works | Right to prevent others from making, selling using or importing the patented invention | Right to use the mark and to prevent others from using similar marks in a way that would cause a likelihood-of-confusion about the origin of the goods or services. |
Copyright in General
What is copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."
How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”
Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.
I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.
Is my copyright good in other countries?
The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other's citizens' copyrights. However, the United States does not have such copyright relationships with every country. For a listing of countries and the nature of their copyright relations with the United States, see Circular 38a, International Copyright Relations of the United States.
Copyright is the exclusive right given to the creator of a creative work to reproduce the work, usually for a limited time.[1][2][3][4][5] The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself.[6][7][8] A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States. Some jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders.[citation needed][9][10][11][12] These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution.[13]
Copyrights can be granted by public law and are in that case considered "territorial rights". This means that copyrights granted by the law of a certain state, do not extend beyond the territory of that specific jurisdiction. Copyrights of this type vary by country; many countries, and sometimes a large group of countries, have made agreements with other countries on procedures applicable when works "cross" national borders or national rights are inconsistent.[14]
Typically, the public law duration of a copyright expires 50 to 100 years after the creator dies, depending on the jurisdiction. Some countries require certain copyright formalities to establishing copyright, others recognize copyright in any completed work, without formal registration.
Contents
History
European output of books before the advent of copyright, 500s to 1700s. Blue shows printed books. Log-lin plot; a straight line therefore shows an exponential increase.
Background
The concept of copyright developed after the printing press came into use in Europe[15] in the 1400s and 1500s.[citation needed] The printing press made it much cheaper to produce works, but as there was initially no copyright law, anyone could buy or rent a press and print any text. Popular new works were immediately re-set and re-published by competitors, so printers needed a constant stream of new material. Fees paid to authors for new works were high, and significantly supplemented the incomes of many academics.[16]
Printing brought profound social changes. The rise in literacy across Europe led to a dramatic increase in the demand for reading matter.[15]Prices of reprints were low, so publications could be bought by poorer people, creating a mass audience.[16] In German-speaking areas, most publications were academic papers, and most were scientific and technical publications, often autodidactic practical instruction manuals on topics such as dike construction.[16] After copyright law became established (in 1710 in England and Scotland, and in the 1840s in German-speaking areas) the low-price mass market vanished, and fewer, more expensive editions were published.[16][17]
Conception
The concept of copyright first developed in England. In reaction to the printing of "scandalous books and pamphlets", the English Parliamentpassed the Licensing of the Press Act 1662,[15] which required all intended publications to be registered with the government-approved Stationers' Company, giving the Stationers the right to regulate what material could be printed.[18]
The Statute of Anne, enacted in 1710 in England and Scotland provided the first legislation to protect copyrights (but not authors' rights). The Copyright Act of 1814 extended more rights for authors but did not protect British from reprinting in the US. The Berne International Copyright Convention of 1886 finally provided protection for authors among the countries who signed the agreement, although the US did not join the Berne Convention until 1989.[19]
In the US, the Constitution protects the rights of authors and the legislature, Congress, can create national copyright laws but must exercise their power within the scope of the Constitution. Modeled on the Statute of Anne, Congress enacted the Copyright Act of 1790. While the national law protected authors’ published works, authority was granted to the states to protect authors’ unpublished works. These two protections exist today: protection by the state for unpublished work, subsequent protection by federal law for published work.[19]
Congress enacted an updated law in 1909, which was later determined to be flawed and was subsequently replaced by the 1976 Copyright Act. This act expanded the items that were eligible for protection, including literary, music, dramatic, pictorial/sculptural works, motion pictures, sound recordings, and choreographic works. This act also extended the copyright protection to life plus 50 years. One final change was that it “codified a fair use exception to copyright”. With these changes in place, the US was in a better position to join the Berne Convention, extending copyright protections internationally.[19]
Copyright laws allow products of creative human activities, such as literary and artistic production, to be preferentially exploited and thus incentivized. Different cultural attitudes, social organizations, economic models and legal frameworks are seen to account for why copyright emerged in Europe and not, for example, in Asia. In the Middle Ages in Europe, there was generally a lack of any concept of literary property due to the general relations of production, the specific organization of literary production and the role of culture in society. The latter refers to the tendency of oral societies, such as that of Europe in the medieval period, to view knowledge as the product and expression of the collective, rather than to see it as individual property. However, with copyright laws, intellectual production comes to be seen as a product of an individual, with attendant rights. The most significant point is that patent and copyright laws support the expansion of the range of creative human activities that can be commodified. This parallels the ways in which capitalism led to the commodification of many aspects of social life that earlier had no monetary or economic value per se.[20]
Copyright has developed into a concept that has a significant effect on nearly every modern industry, including not just literary work, but also forms of creative work such as sound recordings, films, photographs, software, and architecture.
National copyrights
Often seen as the first real copyright law, the 1709 British Statute of Anne gave the publishers rights for a fixed period, after which the copyright expired.[21] The act also alluded to individual rights of the artist. It began, "Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing ... Books, and other Writings, without the Consent of the Authors ... to their very great Detriment, and too often to the Ruin of them and their Families:".[22] A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as the work's creator appears in some countries' copyright laws.
The Copyright Clause of the United States, Constitution (1787) authorized copyright legislation: "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." That is, by guaranteeing them a period of time in which they alone could profit from their works, they would be enabled and encouraged to invest the time required to create them, and this would be good for society as a whole. A right to profit from the work has been the philosophical underpinning for much legislation extending the duration of copyright, to the life of the creator and beyond, to their heirs.
The original length of copyright in the United States was 14 years, and it had to be explicitly applied for. If the author wished, they could apply for a second 14‑year monopoly grant, but after that the work entered the public domain, so it could be used and built upon by others.
Copyright law was enacted rather late in German states, and the historian Eckhard Höffner argues that the absence of copyright laws in the early 19th century encouraged publishing, was profitable for authors, led to a proliferation of books, enhanced knowledge, and was ultimately an important factor in the ascendency of Germany as a power during that century.[23]
International copyright treaties
The Pirate Publisher—An International Burlesque that has the Longest Run on Record, from Puck, 1886, satirizes the then-existing situation where a publisher could profit by simply stealing newly published works from one country, and publishing them in another, and vice versa.
The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not "register" or "apply for" a copyright in countries adhering to the Berne Convention.[24] As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires. The Berne Convention also resulted in foreign authors being treated equivalently to domestic authors, in any country signed onto the Convention. The UK signed the Berne Convention in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act 1988. Specially, for educational and scientific research purposes, the Berne Convention provides the developing countries issue compulsory licenses for the translation or reproduction of copyrighted works within the limits prescribed by the Convention. This was a special provision that had been added at the time of 1971 revision of the Convention, because of the strong demands of the developing countries. The United States did not sign the Berne Convention until 1989.[25]
The United States and most Latin American countries instead entered into the Buenos Aires Convention in 1910, which required a copyright notice on the work (such as all rights reserved), and permitted signatory nations to limit the duration of copyrights to shorter and renewable terms.[26][27][28] The Universal Copyright Convention was drafted in 1952 as another less demanding alternative to the Berne Convention, and ratified by nations such as the Soviet Union and developing nations.
The regulations of the Berne Convention are incorporated into the World Trade Organization's TRIPS agreement (1995), thus giving the Berne Convention effectively near-global application.[29]
In 1961, the United International Bureaux for the Protection of Intellectual Property signed the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. In 1996, this organization was succeeded by the founding of the World Intellectual Property Organization, which launched the 1996 WIPO Performances and Phonograms Treaty and the 2002 WIPO Copyright Treaty, which enacted greater restrictions on the use of technology to copy works in the nations that ratified it. The Trans-Pacific Partnership includes intellectual Property Provisions relating to copyright.
Copyright laws are standardized somewhat through these international conventions such as the Berne Convention and Universal Copyright Convention. These multilateral treaties have been ratified by nearly all countries, and international organizations such as the European Unionor World Trade Organization require their member states to comply with them.
Obtaining protection
Ownership
The original holder of the copyright may be the employer of the author rather than the author himself if the work is a "work for hire".[30] For example, in English law the Copyright, Designs and Patents Act 1988 provides that if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer which would be a "Work for Hire". Typically, the first owner of a copyright is the person who created the work i.e. the author.[31][31] But when more than one person creates the work, then a case of joint authorship can be made provided some criteria are met.
Eligible works
Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Specifics vary by jurisdiction, but these can include poems, theses, fictional characters plays and other literary works, motion pictures, choreography, musical compositions, sound recordings, paintings, drawings, sculptures, photographs, computer software, radio and television broadcasts, and industrial designs. Graphic designsand industrial designs may have separate or overlapping laws applied to them in some jurisdictions.[32][33]
Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.[34] For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney'sparticular anthropomorphic mouse, but does not prohibit the creation of other works about anthropomorphic mice in general, so long as they are different enough to not be judged copies of Disney's.[34] Note additionally that Mickey Mouse is not copyrighted because characters cannot be copyrighted; rather, Steamboat Willie is copyrighted and Mickey Mouse, as a character in that copyrighted work, is afforded protection.
Originality
Typically, a work must meet minimal standards of originality in order to qualify for copyright, and the copyright expires after a set period of time (some jurisdictions may allow this to be extended). Different countries impose different tests, although generally the requirements are low; in the United Kingdom there has to be some "skill, labour, and judgment" that has gone into it.[35] In Australia and the United Kingdom it has been held that a single word is insufficient to comprise a copyright work. However, single words or a short string of words can sometimes be registered as a trademark instead.
Copyright law recognizes the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique; two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other.
Registration
A copyright certificate for proof of Fermat's Last Theorem, issued by the State Department of Intellectual Property of Ukraine.
In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce his or her exclusive rights.[24]However, while registration isn't needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees.[36] (In the US, registering after an infringement only enables one to receive actual damages and lost profits.)
A widely circulated strategy to avoid the cost of copyright registration is referred to as the poor man's copyright. It proposes that the creator send the work to himself in a sealed envelope by registered mail, using the postmark to establish the date. This technique has not been recognized in any published opinions of the United States courts. The United States Copyright Office says the technique is not a substitute for actual registration.[37] The United Kingdom Intellectual Property Office discusses the technique and notes that the technique (as well as commercial registries) does not constitute dispositive proof that the work is original or establish who created the work.[38][39]
Fixing
The Berne Convention allows member countries to decide whether creative works must be "fixed" to enjoy copyright. Article 2, Section 2 of the Berne Convention states: "It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form." Some countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The United States and Canada, on the other hand, require that most works must be "fixed in a tangible medium of expression" to obtain copyright protection.[40] U.S. law requires that the fixation be stable and permanent enough to be "perceived, reproduced or communicated for a period of more than transitory duration". Similarly, Canadian courts consider fixation to require that the work be "expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance".[40]
Copyright notice
A copyright symbol used in copyright notice
Before 1989, United States law required the use of a copyright notice, consisting of the copyright symbol (©, the letter C inside a circle), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder.[41][42] Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle), which indicates a sound recording copyright, with the letter P indicating a "phonorecord". In addition, the phrase All rights reserved was once required to assert copyright, but that phrase is now legally obsolete. Almost everything on the Internet has some sort of copyright attached to it. Whether these things are watermarked, signed, or have any other sort of indication of the copyright is a different story however.[43]
In 1989 the United States enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic.[44] However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit – using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.[45]
Enforcement
Copyrights are generally enforced by the holder in a civil law court, but there are also criminal infringement statutes in some jurisdictions. While central registries are kept in some countries which aid in proving claims of ownership, registering does not necessarily prove ownership, nor does the fact of copying (even without permission) necessarily prove that copyright was infringed. Criminal sanctions are generally aimed at serious counterfeiting activity, but are now becoming more commonplace as copyright collectives such as the RIAA are increasingly targeting the file sharing home Internet user. Thus far, however, most such cases against file sharers have been settled out of court. (See: Legal aspects of file sharing)
In most jurisdictions the copyright holder must bear the cost of enforcing copyright. This will usually involve engaging legal representation, administrative or court costs. In light of this, many copyright disputes are settled by a direct approach to the infringing party in order to settle the dispute out of court.
"...by 1978, the scope was expanded to apply to any 'expression' that has been 'fixed' in any medium, this protection granted automatically whether the maker wants it or not, no registration required."[46]
Copyright infringement
For a work to be considered to infringe upon copyright, its use must have occurred in a nation that has domestic copyright laws or adheres to a bilateral treaty or established international convention such as the Berne Convention or WIPO Copyright Treaty. Improper use of materials outside of legislation is deemed "unauthorized edition", not copyright infringement.[47]
Statistics regarding the effects of copyright infringement are difficult to determine. Studies have attempted to determine whether there is a monetary loss for industries affected by copyright infringement by predicting what portion of pirated works would have been formally purchased if they had not been freely available.[48] Other reports indicate that copyright infringement does not have an adverse effect on the entertainment industry, and can have a positive effect.[49] In particular, a 2014 university study concluded that free music content, accessed on YouTube, does not necessarily hurt sales, instead has the potential to increase sales.[50]
Rights granted
According to World Intellectual Property Organisation, copyright protects two types of rights. Economic rights allow right owners to derive financial reward from the use of their works by others. Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work. The author or creator may be the owner of the economic rights or those rights may be transferred to one or more copyright owners. Many countries do not allow the transfer of moral rights. Where Economic rights allow right owners to derive financial reward from the use of their works by others, the Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work.[51]
Economic rights
With any kind of property, its owner may decide how it is to be used, and others can use it lawfully only if they have the owner's permission, often through a license. The owner's use of the property must, however, respect the legally recognised rights and interests of other members of society. So the owner of a copyright-protected work may decide how to use the work, and may prevent others from using it without permission. National laws usually grant copyright owners exclusive rights to allow third parties to use their works, subject to the legally recognised rights and interests of others.[51] Most copyright laws state that authors or other right owners have the right to authorise or prevent certain acts in relation to a work. Right owners can authorise or prohibit:
- reproduction of the work in various forms, such as printed publications or sound recordings;
- distribution of copies of the work;
- public performance of the work;
- broadcasting or other communication of the work to the public;
- translation of the work into other languages; and
- adaptation of the work, such as turning a novel into a screenplay.
Moral rights
Moral rights are concerned with the non-economic rights of a creator. They protect the creator's connection with a work as well as the integrity of the work. Moral rights are only accorded to individual authors and in many national laws they remain with the authors even after the authors have transferred their economic rights. In some EU countries, such as France, moral rights last indefinitely. In the UK, however, moral rights are finite. That is, the right of attribution and the right of integrity last only as long as the work is in copyright. When the copyright term comes to an end, so too do the moral rights in that work. This is just one reason why the moral rights regime within the UK is often regarded as weaker or inferior to the protection of moral rights in continental Europe and elsewhere in the world.[52] The Berne Convention, in Article 6bis, requires its members to grant authors the following rights:
- the right to claim authorship of a work (sometimes called the right of paternity or the right of attribution); and
- the right to object to any distortion or modification of a work, or other derogatory action in relation to a work, which would be prejudicial to the author's honour or reputation (sometimes called the right of integrity).
These and other similar rights granted in national laws are generally known as the moral rights of authors. The Berne Convention requires these rights to be independent of authors’ economic rights. Moral rights are only accorded to individual authors and in many national laws they remain with the authors even after the authors have transferred their economic rights. This means that even where, for example, a film producer or publisher owns the economic rights in a work, in many jurisdictions the individual author continues to have moral rights.[51]Recently, as a part of the debates being held at the U.S. Copyright Office on the question of inclusion of Moral Rights as a part of the framework of the Copyright Law in United States, the Copyright Office concluded that many diverse aspects of the current moral rights patchwork—including copyright law's derivative work right, state moral rights statutes, and contract law—are generally working well and should not be changed. Further, the Office concludes that there is no need for the creation of a blanket moral rights statute at this time. However, there are aspects of the U.S. moral rights patchwork that could be improved to the benefit of individual authors and the copyright system as a whole.[53]
The Copyright Law in the United States, several exclusive rights are granted to the holder of a copyright, as are listed below:
- protection of the work
- to determine and decide how, and under what conditions, the work may be marketed, publicly displayed, reproduced, distributed etc.
- to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies)
- to import or export the work
- to create derivative works (works that adapt the original work)
- to perform or display the work publicly
- to sell or cede these rights to others
- to transmit or display by radio, video or internet.[54]
The basic right when a work is protected by copyright is that the holder may determine and decide how and under what conditions the protected work may be used by others. This includes the right to decide to distribute the work for free. This part of copyright is often overseen. The phrase "exclusive right" means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without the holder's permission. Copyright is sometimes called a "negative right", as it serves to prohibit certain people (e.g., readers, viewers, or listeners, and primarily publishers and would be publishers) from doing something they would otherwise be able to do, rather than permitting people (e.g., authors) to do something they would otherwise be unable to do. In this way it is similar to the unregistered design right in English law and European law. The rights of the copyright holder also permit him/her to not use or exploit their copyright, for some or all of the term. There is, however, a critique which rejects this assertion as being based on a philosophical interpretation of copyright law that is not universally shared. There is also debate on whether copyright should be considered a property right or a moral right.[55]
UK copyright law gives creators both economic rights and moral rights. While ‘copying’ someone else's work without permission may constitute an infringement of their economic rights, that is, the reproduction right or the right of communication to the public, whereas, ‘mutilating’ it might infringe the creator's moral rights. In the UK, moral rights include the right to be identified as the author of the work, which is generally identified as the right of attribution, and the right not to have your work subjected to ‘derogatory treatment’, that is the right of integrity.[52]
Indian copyright law is at parity with the international standards as contained in TRIPS. The Indian Copyright Act, 1957, pursuant to the amendments in 1999, 2002 and 2012, fully reflects the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a party. India is also a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization (UNESCO). The Indian system provides both the economic and moral rights under different provisions of its Indian Copyright Act of 1957.[56]
Duration
Expansion of U.S. copyright law (currently based on the date of creation or publication).
Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work (e.g. musical composition, novel), whether the work has been published, and whether the work was created by an individual or a corporation. In most of the world, the default length of copyright is the life of the author plus either 50 or 70 years. In the United States, the term for most existing works is a fixed number of years after the date of creation or publication. Under most countries' laws (for example, the United States[57] and the United Kingdom[58]), copyrights expire at the end of the calendar year in which they would otherwise expire.
The length and requirements for copyright duration are subject to change by legislation, and since the early 20th century there have been a number of adjustments made in various countries, which can make determining the duration of a given copyright somewhat difficult. For example, the United States used to require copyrights to be renewed after 28 years to stay in force, and formerly required a copyright notice upon first publication to gain coverage. In Italy and France, there were post-wartime extensions that could increase the term by approximately 6 years in Italy and up to about 14 in France. Many countries have extended the length of their copyright terms (sometimes retroactively). International treaties establish minimum terms for copyrights, but individual countries may enforce longer terms than those.[59]
In the United States, all books and other works published before 1923 have expired copyrights and are in the public domain.[60] In addition, works published before 1964 that did not have their copyrights renewed 28 years after first publication year also are in the public domain. Hirtle points out that the great majority of these works (including 93% of the books) were not renewed after 28 years and are in the public domain.[61] Books originally published outside the US by non-Americans are exempt from this renewal requirement, if they are still under copyright in their home country.
But if the intended exploitation of the work includes publication (or distribution of derivative work, such as a film based on a book protected by copyright) outside the U.S., the terms of copyright around the world must be considered. If the author has been dead more than 70 years, the work is in the public domain in most, but not all, countries.
In 1998, the length of a copyright in the United States was increased by 20 years under the Copyright Term Extension Act. This legislation was strongly promoted by corporations which had valuable copyrights which otherwise would have expired, and has been the subject of substantial criticism on this point.[62]
Limitations and exceptions
In many jurisdictions, copyright law makes exceptions to these restrictions when the work is copied for the purpose of commentary or other related uses. US copyright does NOT cover names, title, short phrases or Listings (such as ingredients, recipes, labels, or formulas).[63]However, there are protections available for those areas copyright does not cover – such as trademarks and patents.
There are some exceptions to what copyright will protect. Copyright will not protect:
- Names of products
- Names of businesses, organizations, or groups
- Pseudonyms of individuals
- Titles of works
- Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
- Listings of ingredients in recipes, labels, and formulas, though the directions can be copyrighted
Idea–expression dichotomy and the merger doctrine
The idea–expression divide differentiates between ideas and expression, and states that copyright protects only the original expression of ideas, and not the ideas themselves. This principle, first clarified in the 1879 case of Baker v. Selden, has since been codified by the Copyright Act of 1976 at 17 U.S.C. § 102(b).
The first-sale doctrine and exhaustion of rights
Copyright law does not restrict the owner of a copy from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. It is therefore legal, for example, to resell a copyrighted book or CD. In the United States this is known as the first-sale doctrine, and was established by the courts to clarify the legality of reselling books in second-hand bookstores.
Some countries may have parallel importation restrictions that allow the copyright holder to control the aftermarket. This may mean for example that a copy of a book that does not infringe copyright in the country where it was printed does infringe copyright in a country into which it is imported for retailing. The first-sale doctrine is known as exhaustion of rights in other countries and is a principle which also applies, though somewhat differently, to patent and trademark rights. It is important to note that the first-sale doctrine permits the transfer of the particular legitimate copy involved. It does not permit making or distributing additional copies.
In Kirtsaeng v. John Wiley & Sons, Inc.,[64] in 2013, the United States Supreme Court held in a 6–3 decision that the first-sale doctrine applies to goods manufactured abroad with the copyright owner's permission and then imported into the US without such permission. The case involved a plaintiff who imported Asian editions of textbooks that had been manufactured abroad with the publisher-plaintiff's permission. The defendant, without permission from the publisher, imported the textbooks and resold on eBay. The Supreme Court's holding severely limits the ability of copyright holders to prevent such importation.
In addition, copyright, in most cases, does not prohibit one from acts such as modifying, defacing, or destroying his or her own legitimately obtained copy of a copyrighted work, so long as duplication is not involved. However, in countries that implement moral rights, a copyright holder can in some cases successfully prevent the mutilation or destruction of a work that is publicly visible.
Fair use and fair dealing
Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution without permission of the copyright holder or payment to same. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:
- the purpose and character of one's use
- the nature of the copyrighted work
- what amount and proportion of the whole work was taken, and
- the effect of the use upon the potential market for or value of the copyrighted work.[65]
In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation. The concept is sometimes not well defined; however in Canada, private copying for personal use has been expressly permitted by statute since 1999. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, the Supreme Court of Canada concluded that limited copying for educational purposes could also be justified under the fair dealing exemption. In Australia, the fair dealing exceptions under the Copyright Act 1968 (Cth) are a limited set of circumstances under which copyrighted material can be legally copied or adapted without the copyright holder's consent. Fair dealing uses are research and study; review and critique; news reportage and the giving of professional advice (i.e. legal advice). Under current Australian law, although it is still a breach of copyright to copy, reproduce or adapt copyright material for personal or private use without permission from the copyright owner, owners of a legitimate copy are permitted to "format shift" that work from one medium to another for personal, private use, or to "time shift" a broadcast work for later, once and only once, viewing or listening. Other technical exemptions from infringement may also apply, such as the temporary reproduction of a work in machine readable form for a computer.
In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992) prohibits action against consumers making noncommercial recordings of music, in return for royalties on both media and devices plus mandatory copy-control mechanisms on recorders.
- Section 1008. Prohibition on certain infringement actions
- No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
Later acts amended US Copyright law so that for certain purposes making 10 copies or more is construed to be commercial, but there is no general rule permitting such copying. Indeed, making one complete copy of a work, or in many cases using a portion of it, for commercial purposes will not be considered fair use. The Digital Millennium Copyright Act prohibits the manufacture, importation, or distribution of devices whose intended use, or only significant commercial use, is to bypass an access or copy control put in place by a copyright owner.[32]An appellate court has held that fair use is not a defense to engaging in such distribution.
EU copyright laws recognise the right of EU member states to implement some national exceptions to copyright. Examples of those exceptions are:
- photographic reproductions on paper or any similar medium of works (excluding sheet music) provided that the rightholders receives fair compensation,
- reproduction made by libraries, educational establishments, museums or archives, which are non-commercial
- archival reproductions of broadcasts,
- uses for the benefit of people with a disability,
- for demonstration or repair of equipment,
- for non-commercial research or private study
- when used in parody
Accessible copies
It is legal in several countries including the United Kingdom and the United States to produce alternative versions (for example, in large print or braille) of a copyrighted work to provide improved access to a work for blind and visually impaired persons without permission from the copyright holder.[66][67]
Transfer, assignment and licensing
A copyright, or aspects of it (e.g. reproduction alone, all but moral rights), may be assigned or transferred from one party to another.[68] For example, a musician who records an album will often sign an agreement with a record company in which the musician agrees to transfer all copyright in the recordings in exchange for royalties and other considerations. The creator (and original copyright holder) benefits, or expects to, from production and marketing capabilities far beyond those of the author. In the digital age of music, music may be copied and distributed at minimal cost through the Internet; however, the record industry attempts to provide promotion and marketing for the artist and his or her work so it can reach a much larger audience. A copyright holder need not transfer all rights completely, though many publishers will insist. Some of the rights may be transferred, or else the copyright holder may grant another party a non-exclusive license to copy or distribute the work in a particular region or for a specified period of time.
A transfer or licence may have to meet particular formal requirements in order to be effective,[69] for example under the Australian Copyright Act 1968 the copyright itself must be expressly transferred in writing. Under the U.S. Copyright Act, a transfer of ownership in copyright must be memorialized in a writing signed by the transferor. For that purpose, ownership in copyright includes exclusive licenses of rights. Thus exclusive licenses, to be effective, must be granted in a written instrument signed by the grantor. No special form of transfer or grant is required. A simple document that identifies the work involved and the rights being granted is sufficient. Non-exclusive grants (often called non-exclusive licenses) need not be in writing under U.S. law. They can be oral or even implied by the behavior of the parties. Transfers of copyright ownership, including exclusive licenses, may and should be recorded in the U.S. Copyright Office. (Information on recording transfers is available on the Office's web site.) While recording is not required to make the grant effective, it offers important benefits, much like those obtained by recording a deed in a real estate transaction.
Copyright may also be licensed.[68] Some jurisdictions may provide that certain classes of copyrighted works be made available under a prescribed statutory license (e.g. musical works in the United States used for radio broadcast or performance). This is also called a compulsory license, because under this scheme, anyone who wishes to copy a covered work does not need the permission of the copyright holder, but instead merely files the proper notice and pays a set fee established by statute (or by an agency decision under statutory guidance) for every copy made.[70] Failure to follow the proper procedures would place the copier at risk of an infringement suit. Because of the difficulty of following every individual work, copyright collectives or collecting societies and performing rights organizations (such as ASCAP, BMI, and SESAC) have been formed to collect royalties for hundreds (thousands and more) works at once. Though this market solution bypasses the statutory license, the availability of the statutory fee still helps dictate the price per work collective rights organizations charge, driving it down to what avoidance of procedural hassle would justify.
Free licenses
Copyright licenses known as open or free licenses seek to grant several rights to licensees, either for a fee or not. Free in this context is not as much of a reference to price as it is to freedom. What constitutes free licensing has been characterised in a number of similar definitions, including by order of longevity the Free Software Definition, the Debian Free Software Guidelines, the Open Source Definition and the Definition of Free Cultural Works. Further refinements to these definitions have resulted in categories such as copyleft and permissive. Common examples of free licences are the GNU General Public License, BSD licenses and some Creative Commons licenses.
Founded in 2001 by James Boyle, Lawrence Lessig, and Hal Abelson, the Creative Commons (CC) is a non-profit organization[71] which aims to facilitate the legal sharing of creative works. To this end, the organization provides a number of generic copyright license options to the public, gratis. These licenses allow copyright holders to define conditions under which others may use a work and to specify what types of use are acceptable.[71]
Terms of use have traditionally been negotiated on an individual basis between copyright holder and potential licensee. Therefore, a general CC license outlining which rights the copyright holder is willing to waive enables the general public to use such works more freely. Six general types of CC licenses are available (although some of them are not properly free per the above definitions and per Creative Commons' own advice). These are based upon copyright-holder stipulations such as whether he or she is willing to allow modifications to the work, whether he or she permits the creation of derivative works and whether he or she is willing to permit commercial use of the work.[72] As of 2009 approximately 130 million individuals had received such licenses.[72]
Criticism
Some sources are critical of particular aspects of the copyright system. This is known as a debate over copynorms. Particularly to the background of uploading content to internet platforms and the digital exchange of original work, there is discussion about the copyright aspects of downloading and streaming, the copyright aspects of hyperlinking and framing.
Concerns are often couched in the language of digital rights, digital freedom, database rights, open data or censorship.[73] Discussions include Free Culture, a 2004 book by Lawrence Lessig. Lessig coined the term permission culture to describe a worst-case system. Good Copy Bad Copy (documentary) and RiP!: A Remix Manifesto, discuss copyright. Some suggest an alternative compensation system. In Europe consumers are acting up against the raising costs of music, film and books, a political party has been grown out of it, The Pirates. Some groups reject copyright altogether, taking an anti-copyright stance. The perceived inability to enforce copyright online leads some to advocate ignoring legal statutes when on the web.
Public domain
Copyright, like other intellectual property rights, is subject to a statutorily determined term. Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be used or exploited by anyone without obtaining permission, and normally without payment. However, in paying public domain regimes the user may still have to pay royalties to the state or to an authors' association. Courts in common law countries, such as the United States and the United Kingdom, have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publicly available. Works posted in the internet, for example, are publicly available, but are not generally in the public domain. Copying such works may therefore violate the author's copyright.
How Long Does Copyright Protection Last?
The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code).More information on the term of copyright can be found in Circular 15a, Duration of Copyright, and Circular 1, Copyright Basics.
No. Works created on or after January 1, 1978, are not subject to renewal registration. As to works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages. For information on how to file a renewal application as well as the legal benefit for doing so, see Circular 15, Renewal of Copyright, and Circular 15a, Duration of Copyright.
WHAT IS PROTECTED BY COPYRIGHT
Copyright law protects all original literary, dramatic, musical, and artistic works; each of these general categories covers a wide range of creations including works posted on the Internet. Specific examples of works protected by copyright are listed in this Government of Canada guide: What types of works are protected?
REQUIREMENTS FOR COPYRIGHT PROTECTION
Copyright protection is automatic once a work comes into existence; registration is not required.
Fixation and originality are important requisites for copyright protection. A work must be in a fixed format to be copyrighted. It can be produced onto any media (print, digital) to meet the fixation requirement.
The standard for originality is relatively low; copyright protects different types of works from ordinary (technical manuals) to innovative (art). Originality is not defined in the Copyright Act, but guidelines have developed through case law.
To classified as original, a work must
- Originate from the author
- Not be a copy of another work
- Be a product of the author's independent skill and effort (as opposed to the product of an automated arrangement)
WHAT IS NOT PROTECTED BY COPYRIGHT
Ideas and facts are not protected by copyright. – it is the tangible expression of facts and ideas that copyright law protects.
The Copyright Act only protects works that are considered to be substantial. Subsequently, titles*, slogans, names, and short word combinations are not generally eligible for copyright protection. However these items might be registered as trademarks.
*Original and distinctive titles might be protected as part of the entire work
EXAMPLES
Not Protected by Copyright
|
Protected by Copyright
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An idea for a plot
|
A novel, manuscript, movie ....(the expression of the plot)
|
Population data
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A graphic that contains the data
|
Facts
|
A newspaper article containing those facts (the expression of those facts)
|
For more examples see About Copyright
COPYING INSUBSTANTIAL AMOUNTS OF A WORK
Copying an insubstantial amount of a work is permitted without asking for permission or paying royalties. Judging the difference between substantial / insubstantial copying can be difficult. A “substantial amount” is not defined in the Copyright Act. A key point is that the amount copied (quantity) , is only one component in the analysis. Here are other factors that a court would consider.
Value of what is copied – An effective illustration is from the movie Gone with the Wind. A court ruled that the use of “Frankly my dear I don’t give a damn” - 8 words out of the entire movie – was copyright infringement. Another example would be a company's mission statement from their annual report, or website.
The amount copied in relation to the entire work. A sentence might be considered insubstantial if copied from a novel. In contrast a line from a poem, (the same amount of text), might be judged as infringement.
Also review the Douglas College Fair Dealing Policy
II. What can and can’t be copyrighted?
To recap, copyright is the legal right that one has to control copies and distributions of their work. The copyright holder cantemporarily disallow others from copying, changing or distributing their work. Its purpose is to incentivize creators to create so that the public can benefit from their continued productivity. Knowing those two things helps make sense of the rules regarding what can and can’t be copyrighted.
To copyright something, only three elements are required: (1) fixation, (2) originality, and (3) expression.
(1) Fixation: a creative idea must be locked in a permanent state. To protect a song, for example, it must be notated on paper or recorded onto tape or CD. A live performance of that song won’t be protected.
(2) Expression: Expression goes hand-in-hand with the fixation requirement. Ideas can’t be copyrighted, but the “expression” of an idea can be copyrighted. For example, the idea that a movie should be made about a suave, British superspy who uses quirky technology can’t be copyrighted, but the James Bond films, the expression of that idea, certainly can.
(3) Originality: Creative work must meet a basic level of originality to be considered the product of an author. Direct copies of someone else’s work can’t be copyrighted, and neither can facts, short phrases, titles, etc. For example, the names and addresses in a phonebook can’t be copyrighted but the photo on its front cover most certainly can.
These three requirements require a bit more depth to understand fully.
(1) Fixation
To get copyright protection, you must fix your work “in a tangible medium.” That means to copyright your song, you first need to record your song and write down the lyrics. To copyright your story, it needs to be written on paper or saved on your word processor.
If you perform your song live for a friend without recording it, notating it or writing down the lyrics, your song is not protected by copyright. Regardless of the quality of your song, you won’t receive copyright protection until the song is in a state that is capable of being reproduced.
“Fixed” work is defined as a work that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” For example, a sandcastle or ice sculpture that you worked all day on would probably not be considered fixed so it’s not copyrightable. However, as soon as you take a photograph of your sandcastle or ice sculpture, thus fixing it in reproducible medium other than your own memory, the image and design of the sandcastle can receive legal protection.
(2) Expression
Imagine asking a friend for a movie recommendation. You tell your friend that you want to see a movie about a suave government spy who uses gadgets and is irresistible to women. That synopsis is an idea.
If that person handed you a James Bond DVD, that would be an expression of that idea. That person could also hand you a DVD of the movie xXx or its sequel or xXx: State of the Union or even any of the Austin Powers movies. Those would all be expressions of that same idea, too.
The Copyright Act protects expressions. It does not protect idea[s], procedure[s], process[es], system[s], method of operation[s], concept[s], principle[s], or discover[ies] . . . .”
The reason for the Act’s demarcation makes sense if you remember that copyright laws exist solely for the public’s benefit. The law wants everyone who is interested in writing about government spies to actually write about government spies. The public does not benefit from someone merely thinking about writing a novel. So if someone doesn’t express their ideas, the public does not benefit, and thus, the idea cannot be copyrighted.
If ideas were protected, whenever a person came up with an interesting, memorable character for a film of book, it would bar everyone else from making a similar character. The same could be said about familiar plots or settings. If these could be copyright protected, everything in the human experience would quickly be copyrighted. After all, some argue that there are at most 36 different plots of stories that can be told and every story told is just a variation of one of those 36 plots.
Expression is easier understood when you consider the concept of parallel independent creation: copyright laws protect your specific expression of an idea, but interestingly enough, it doesn’t prevent someone else from independently generating that same expression.
For example, imagine you are a poet in Brooklyn, New York, and you’ve just finished your 10-line masterpiece that you’ve been writing everyday at the coffee shop for the last year. Meanwhile, at a bar 3,000 miles away in California, Average Joe writes that same poem, word for word on the back of a napkin while waiting for his drink. Since both of you independently thought of that poem and generated the expression without ever being influenced by the other’s work, both of you would get full copyright protection in your poem. It wouldn’t matter who wrote it first.
(3) Originality
It’s a common saying that “everything has been done before.” As I said above, some smart people say there are no more than 36 stories that can be told. Everything we’ve ever seen or read is just a variation on one of those stories.
Copyright law takes this into consideration by setting a low threshold for originality. Though no one can definitively say what is original and what isn’t original, examples from past cases offer helpful guidance.
A photograph on the front cover of a phonebook is clearly an original work. But a list of names and addresses listed alphabetically in a phonebook is not original, as the Supreme Court declared in Feist Publications, Inc. v. Rural Telephone Service Co. Somewhere in between those two examples is the cutoff point between protected originality and non-protected unoriginality.
The law also recognizes that some creative works, especially those in genres like science fiction and westerns, share lots of common elements that may not be copyrightable. Science fiction stories are full of spaceships, aliens, or gruff space marines; westerns are full of horses, saloons, and quick-shooting cowboys. Some elements of stories like these are often so formulaic that they can’t be protected by copyright. The law calls these non-copyrightable aspects of works as scenes-a-faire.
Finally, it’s worth noting that the law isn’t concerned with the quality of the work when it looks at originality. A child’s drawing in crayon is just as copyrightable as a master-painter’s greatest work. Low budget pornography is just as original and worthy of copyright protection as art films or high-budget summer blockbusters.
In conclusion, it’s more likely than not that if something fits the common sense definition of creative work, it will satisfy the originality requirement.
Putting it all together
Generally, titles, short phrases, facts, and utilitarian language can’t receive copyright protection. This makes sense because they are either too much like ideas or not original enough to meet copyright law’s requirements. This means that even if someone spends a lot of time and mental energy generating a title, I can copy it and use it in my own work in any way I want without issue.
Facts
Copyright law protects a person’s expression; it does not protect facts. A person who discovers a fact about the world (like a biologist who discovers a fact about human cellular structures, a historian who discovers a fact about Napoleon’s life, or a journalist who learns secret information about a news event) is not the author of that fact under copyright law. [ Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). ] That person has neither expressed anything to create the fact nor does a fact of the world involve any creative originality.
Said another way, facts may be discovered, but that discovery isn’t an act of authorship.
For example: Imagine you’re a historian and you’ve devoted your life’s research to proving through the archeological record that Genghis Khan, rather than being an aggressive Mongolian warlord, was actually a peace-loving Mongolian philosopher. After searching for archeological evidence on the Mongolian Steppes for a decade, finally you find evidence that definitively proves your hypothesis. You publish this all in a detailed biography of Genghis Khan’s life that rocks the history world.
If a movie producer wanted to make a movie based on Genghis Khan being an ancient peace-loving beatnik using all of the details you describe in your book, he wouldn’t have to pay you a dime because you merely learned a non-protectable historical fact.
But if the movie producer wanted to make a movie directly based on the biography that you wrote (where he uses lines from your book or the structure of your book), he would need your permission because he’s using the rights to your “expression” of the historical fact that you learned.
Other examples of things that would be considered non-protectable facts.
-The President of the United States is Barack Obama
-Mosquitoes are carriers of malaria
A fact can’t be protected even if you’re the one who independently created the fact or you’re the only person who knows about the fact:
-You can see me perform my secret concert at Balboa Park tomorrow night
-This watercolor in my closet that I painted is blue
Titles
Neither copyright nor trademark law protects titles of individual works. The only possible protection for titles is through unfair competition laws.
-The Girl With the Dragon Tattoo
-Gone with the Wind
-Citizen Kane
Short phrases
Phrases are not protectable under copyright law.
-“Land ho!”
-“A bird in the hand is worth two in the bush.”
-“A buyer’s market.”
However, short phrases may be protected under some other legal scheme, like trademark, rights of publicity, or unfair competition law.
“Here’s Johnny” – a protected trademark of Johnny Carson
“Just Do It” – trademark of Nike
“I’m Lovin’ It” – trademark of McDonald’s
Utilitarian language
If there’s only one way to accurately communicate a concept to someone, then the language you’re using is utilitarian. Utilitarian language is not protectede by copyright law, because if it were, someone could get the exclusive rights to basic explanations like the instructions on how to assemble a chair or bake a cake. If there’s only one way for people to communicate an idea, the law doesn’t want anyone with control over people’s ability to communicate freely.
By contrast, patent law protects truly original, novel, and useful instructions with practical value, and trademark law gives people limited protection to use utilitarian language in their business transactions or on products.
Some examples of non-protectable utilitarian language are:
- “Turn the screws counterclockwise with a Phillips-head screwdriver," in instructions to build a desk.
- “Crack two eggs into a preheated skillet."
If you have any questions about whether your work meets the minimum standards to receive copyright protection, or if you just have questions about copyright law in general, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
I. What is copyright law, who created it, and why do people think we need it?
Submitted by New Media Rights last modified Wed, 06/28/2017 - 4:22pm
I. What is copyright law, who created it, and why do people think we need it?
Copyright law temporarily gives an author the sole right to copy and distribute his or her work. The idea that an author of a work should be able to control how his work is initially distributed goes way back in history. In fact, the Founding Fathers thought copyright laws were so important they included them in the Constitution. Article I, Section 8, Clause 8 of the Constitution gives Congress the power to make laws: “[t]o promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.”
If you read this closely, you’ll notice that copyright law wasn’t created to ensure creative people “get rich” off of the works they create. Instead, the Founding Fathers understood that the public benefitted greatly from individuals’ creative work. Yet they also understood that would-be creators needed an incentive to create. So they included an incentive in the Constitution: Bestowing Congress with the power to grant creators the exclusive right to control their creation for a limited period of time. And when that period expired, the public could legally copy or use that work for any purpose. Reflecting on copyright law’s benevolent purpose, the Supreme Court summarized it in one great little phrase: “[Copyright law exists to] stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
Originally, U.S. copyright laws were very limited. For better or worse, the length of time works were protected by copyright has continued to grow drastically over the past 200 years. After the most recent extension of the length of copyright protection, authors of creative works are now generally protected for their entire life plus 70 years after their death.
Generally, modern changes to copyright law can be looked at as responses to the technologies that have made it increasingly easier for people to make exact copies of another person’s work. In 1776, you needed an expensive printing press, expensive paper and ink, and a lot of time if you wanted to copy someone’s book. By 1976, all you needed was a copy machine and a handful of quarters.
In 1776, copying a stage play required transcribing the dialogue by hand, word-for-word, over multiple viewings. By 1985, copying a television show was as easy as programming a VCR. And by 2010, copying movies—including movies not yet released in theaters—is as simple as a few clicks of the mouse.
If you have any questions about the policy behind copyright law or its history, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
Works Protected by Copyrights
A copyright gives certain exclusive rights to persons who create original works of authorship, including literary, dramatic, musical, artistic and certain other intellectual works. This protection is available to both published and unpublished works. Copyrightable works include the following categories:
These categories should be viewed broadly. For example, the code used to create computer programs may be registered as a "literary work." Maps and architectural plans may be registered as "pictorial, graphic and sculptural works." A dance could be registered as both a choreographic work (if written down or otherwise recorded) and as an audiovisual work (if filmed).
To be protected by copyright, the work must be more than an idea. It must be fixed in a "tangible form of expression." This means the work must be written or otherwise recorded. This is because a copyright does not protect an idea or plan: it protects the expression of that idea or plan.
In addition, copyrightable work must be original. It must not be copied from someone else and must contain a minimal level of creativity on the part of the author. Facts, well-known phrases and lists of names or ingredients, in and of themselves, are not copyrightable. However, if these items are organized or expressed in an original manner, then a copyright would protect that organization or expression, although not the actual facts or lists contained. In other words, copyright protection extends only to an author's original, creative contribution to a work.
What is protected by copyright?
According to the US Copyright Office, in order for something to qualify for copyright protection, that something must exist in a tangible form. Specifically:
In other words, that great idea you told your friend about the other day cannot be protected by copyright in and of itself, but if you write that great idea down, the words can be protected.
Still, there's always room for interpretation, confusion, and ongoing debates over what is and isn't protected by copyright law. So below we've outlined five things the US Copyright Office clearly states are not protected by copyright—even if they are a tangible expression of an idea or thought.
What is not protected by copyright?
1. Ideas, Methods, or Systems
Ideas, methods, and systems are not covered by copyright protection. According to the US Copyright Office, Circular 2, this covers quite a few things including making, or building things; scientific or technical methods or discoveries; business operations or procedures; mathematical principles; formulas, algorithms; or any other concept, process, or method of operation.
2. Commonly Known Information
This category includes items that are considered common property and with no known authorship. Examples include standard calendars, height and weight charts, telephone directories, tape measures and rulers, and lists or tables taken from public documents. A phrase such as “The sky is blue” also falls under this category since there is no known authorship associated with it.
3. Choreographic Works
A choreographic work, whether original or not, is not subject to copyright protection unless it has been videotaped or notated. The same applies to speeches that have not been transcribed before or after they are given, as well as any other types of performances.
4. Names, Titles, Short Phrases, or Expressions
Also exempt: names, titles, short phrases, or expressions—such as that catchy slogan you came up with for your business—product descriptions, pseudonyms, titles of works, and business names. The good news is that while they are not protected by copyright, if they pertain to your business (for example, goods and services) they can be protected with a trademark.
Recipes also fall under this category. Specifically the listing of ingredients (even if it's your own recipe ingredients) is not protected by copyright. This applies to formulas, compounds, and prescriptions as well. There are exceptions however, such as when recipes are compiled in a cookbook for instance or if the recipe is accompanied by “substantial literary expression,” a term that refers to text such as directions, or when there is a combination of recipes, there may be a basis for copyright protection.
5. Fashion
Contrary to what you might think, fashion (that is, a shirt, dress, or other article of clothing) is not protected by copyright law. Despite the fact that copyright law protects such things as architectural design works (Circular 41) or works of the visual arts (Circular 40), fashion is all about clothing and accessories, which under copyright law are considered “useful articles." It is possible however, to copyright a specific fabric pattern (Burberry plaids for example), but not the actual dress. And, it should be noted that while designs can't be copyrighted, they can be patented.
Copyright vs. Trademark: What's the Difference?
The shining painted pupils of the fiberglass princess are fixed on you. As the swing squeaks and your daughter squeals, the familiar princess statue haunts you. Then you see it: she's a faded likeness of Disney's Snow White. She's standing next to an even less recognizable Cinderella. As you gaze around the park, you notice other almost-recognizable characters: a sun-bleached Barney the dinosaur here, a giant Bugs Bunny head there.
The creepiness is entirely lost on your daughter. Whoever owns this park has to be violating some kind of intellectual property rights, but which ones?
To answer this question, it is essential to understand the differences between trademark vs. copyright protection. Both forms of intellectual property protection protect creative works, but they do so from different directions. Copyright and trademark overlap, and learning to unwind those overlapping rights is a great way to explain what each one protects.
Copyright: the Expression of an Idea
Disney does not own the stories of Snow White or Cinderella. The company could not register a copyright that would prevent anyone from using the underlying story. However, Disney does own the copyright to the animated films it made featuring those characters. What, exactly, then does the copyright to those films protect?
Copyright registration protects the particular creative expression of an idea. The films' producers made a series of choices. They wrote a script, animated sequences, and, importantly, designed the now iconic characters.
Disney can stop someone from copying their film outright, yet copyright goes even further. Disney can prevent others from copying the components of the film as well: the script, the scenes, and the characters.
How far the copyright protection can go depends on the expressiveness of the work. In Snow White's case, Disney made particular creative choices that made these characters iconic: each of the Seven Dwarfs has his own personality; Snow White has her particular hairstyle and blue and yellow dress. Those choices are unique to Disney's version of the story and are part of what's protected by the copyright.
Among the most creative and expressive elements of the film is the character of Snow White that Disney created. So, Disney does not rely only on the copyright to protect her.
Trademark: an Investment in Goodwill
Over the years, these iconic princesses have become deeply associated with Disney: Their likenesses adorn toys and clothes. Actresses become these princesses in Disney's theme parks. Customers have come to associate these characters with the Disney name. The characters are ambassadors for the company's products.
So, when Disney had to decide between copyright or trademark protection, they went with both. In addition to the copyright, Disney chose to register a trademark—to identify and distinguish Disney as the owner of the goods. Over time, customers have come to associate Disney with these characters well beyond the animated films they came from. This association is a form of goodwill.
Disney sells particular kinds of products that come with certain consumer expectations. Disney sells princess toys to children. Disney princess-branded products provide family-oriented entertainment. They use Snow White, Cinderella, and other princesses to create specific kinds of magical, glamorous Disney princess products.
That business did not create itself. Disney leveraged its copyrighted characters to create a brand that its customers associate with. Now, when using that familiar Snow White on a product, customers know that it is from Disney. Moreover, they know what kind of Disney product it is. Disney, through its trademark registration, can prevent others from using its characters in an attempt to co-opt the goodwill that Disney has worked so hard to create.
And What About Infringement?
To infringe a trademark or copyright, the infringer must trespass on what the intellectual property protects. The infringer must take a particular expression (like Snow White as a character from a film) or co-opt the goodwill built up by the company (Snow White as part of the Disney princess brand).
For the fiberglass statue in the park, the infringement is a bit of both. The playground is taking the decisions that Disney made when designing the characters. Even if the execution is less than perfect, reproducing the look of Disney's character uses a critical part of the animated film without permission. Moreover, the way the playground is using the characters is closely aligned to how Disney uses its princesses.
The test to see if it is too close is likely confusing. A jury would have to determine if the playground's use of Snow White might cause users to think that the playground is in some way associated with Disney. The fiberglass princesses may be a long way from Disneyland, but it may be reasonable to think that the maker of the statue or the owner of the park would have licensed rights from Disney in order to use its characters and trademarks.
Know the Differences
The use of these characters illustrates how intellectual property rights can overlap. Trademark and copyright can protect the same thing but in very different ways. A good familiarity with the different kinds of intellectual property protection allows anyone to separate which aspects trademark protects and which aspects copyright protects. It also illustrates how careful everyone needs to be with the creative content of others.
LegalZoom can help you register a copyright or register a trademark. The process for each begins by completing a simple questionnaire. We'll work with you to assemble your application and file it with the appropriate government agency.
How to Avoid Copyright Infringement
Copyright is a well-known type of intellectual property (IP) protection represented by the © symbol. Watch any film and the copyright infringement warning will appear, threatening jail time and fines. Copyright extends beyond video to songs, pictures, books, blogs, podcasts, paintings and even software. For those who are both consumers and business owners, it’s important to know how to avoid copyright infringement.
How Do You Get U.S. Copyright?
Once a work is expressed in a tangible medium, which is paper, electronic, recording or anything that can be seen, read or heard, you actually have copyright protection. Technically the © is not required on the work, but it’s a good idea to use the © symbol or to sign paintings.
Protecting your works with a registered copyright is a simple process relative to other forms of intellectual property like patents or trademarks. More information on copyright registration is available on the U.S. Copyright Office (USCO) website. Remember that any IP registration in the U.S. will only protect you in the U.S.
Copyright does not have to be registered with the USCO unless you wish to bring legal action when someone else infringes on your work. Also, if you wish to give others the right to use your work but you are not sure about the different types of licenses, the Creative Commons organization has several license options.
What Is Copyright Infringement?
Copyright laws are designed to protect the creator of original works, which are creative expressions from others using and profiting their work, without permission. The idea is that the author or creator owns the rights to the work and can decide if and how others use his or her creation.
For example, music copyright would exist for songwriters on their lyrics. When songwriters allow artists to record their words, there would be an agreement outlining how the right to record is granted, thus avoiding copyright infringement.
If another artist decided to record the same song without permission, the songwriter would be able to bring legal action for copyright infringement against the artist. If you believe that the copyright infringement definition sounds like stealing, you would be correct.
Other examples of copyright infringement include:
Tips for Avoiding Copyright Infringement
Use Caution If It’s Not Your Original Work
If you did not create it, the work is not yours to use freely, even if there is no copyright symbol. If you were to pass an unlocked bicycle on the street, you would not take it – that is obviously stealing. The same applies for a photograph on the Internet. Look for the license or permissions before you use anything that isn’t yours.
Video hosting companies such as YouTube use software to detect music copyright infringement before allowing uploads. Slideshare allows users to report copyright infringement. Artists and author can subscribe to online services that monitor and report plagiarism. However, there are many sites with free-to-use music and photos.
Read, Read, Read
Many creators do wish to share their works either for a fee or for proper attribution. The rules for use or terms are often in the form of a license. It’s important to review and read the licensing terms to avoid issues. For example, we once licensed IP cartoons for our office walls. Based on the license, we could not use those pictures online or we would have received a fine.
Don’t Believe the Urban Legends
While open source code has reduced the cost of software development, it can be a landmine to use if you do not read the license for rules regarding commercial use. It is not as open as one might think: some licenses prevent reselling of the code.
Do not believe anyone who tells you that you can take a three or five second music clip without permission; it’s not true. Also, the myth that big companies do not care is just that: a myth. Software has automated the infringement reporting process, and no matter the size of the company, the business will act upon any instances of infringement.
Look for Fair Use
Although ignorance is not a defense, there are some exceptions to the copyright infringement laws. There is an exception called “fair use,” which is often associated with education. The concept is that if you are using a photo or an article for educational or non-commercial purposes, then you may be exempt from infringement.
Overall, it’s important to understand the copyright laws or rights for any original creations to avoid copyright infringement. Being diverted by fines or legal action can take up valuable time and resources. The steps to avoiding copyright infringement are quite simple: identify and protect original works, and educate family and/or employees about copyright infringement.
LegalZoom can help you register a copyright for your works, and we can put you in touch with an independent attorney who can answer questions about copyright infringement. Get started today by answering a few questions about your copyright.
CopyrightWhat is copyright?
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:
Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
There are two types of rights under copyright:
Most copyright laws state that the rights owner has the economic right to authorize or prevent certain uses in relation to a work or, in some cases, to receive remuneration for the use of their work (such as through collective management). The economic rights owner of a work can prohibit or authorize:
Examples of widely recognized moral rights include the right to claim authorship of a work and the right to oppose changes to a work that could harm the creator's reputation.
In the majority of countries, and according to the Berne Convention, copyright protection is obtained automatically without the need for registration or other formalities.
Most countries nonetheless have a system in place to allow for the voluntary registration of works. Such voluntary registration systems can help solve disputes over ownership or creation, as well as facilitate financial transactions, sales, and the assignment and/or transfer of rights.
Please note that WIPO does not offer a copyright registration system or a searchable copyright database. Find out more about copyright registration and documentation systems.
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