The Basics of Copyright

    1. Definition and Sources

      1. What is copyright? Copyright is a collection of property rights granted to the creators and owners of literary, artistic, musical, dramatic and audiovisual works.  Copyright gives creators, authors and owners the exclusive right to:
        1. reproduce copies of their works;
        2. distribute copies of their works;
        3. create derivative works;
        4. perform their works publicly;
        5. display their works publicly; and,
        6. (in the case of sound recordings) to perform their works publicly by digital audio transmission.
      2. In sum, copyright gives artists, authors, filmmakers, screenwriters, musicians and producers the right to own and control their works.
      3. What are the sources for U.S. copyright? Congress is empowered under Article 1, Section 8, Clause 8 of the U.S. Constitution, “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The primary source of U.S. copyright law is the federal legislation, the Copyright Act of 1976,  which supercedes all state copyright law and all previous federal copyright laws.
      4. How long does copyright last (under the Copyright Act of 1976)?  As of 2011, works created after January 1, 1978 are protected for the current lifetime of the individual author/creator plus 70 years.  If the author is listed as a group or organization, the term of a copyright is 95 years from the date of publication.  The term for works created before 1978 differs but the maximum term for these works is 95 years from the date the copyright first became effective.
    2. Requirements

      1. What are copyright requirements?  There are three requirements for a work to be copyrightable.  The work must be:
        1. copyrightable subject matter;
        2. fixed in a tangible medium of expression; AND
        3. created by or originated with the author or creator
      2. What are copyrightable subject matters? Basically, any creative work that appears in a fixed form; books, plays, films, tv programs, other audiovisual works, scripts for audio works and audiovisual works, photographs, sculptures, illustrations, paintings, musical compositions, sound recordings, radio programs, choreographic works, pantomimes and computer software.
      3. What can not be copyrighted? Ideas, materials produced by federal government employees as part of their jobs, scientific and factual information, inventions and industrial processes (requires patents instead) and titles of products and services (requires trademark instead)

    1. Formalities

      1. Remember that every creative work is immediately copyrighted and automatically protected once it is in a tangible form.  The formalities are optional and include:
        1. Providing a notice that ownership is claimed in the work (ex. Copyright 2011 by Monkey See Monkey Do, Inc. or  Copr. 2011 by John Doe or © 2001 Benedict O'Mahoney All Rights Reserved) and
        2. Registering the work with the U.S. Copyright Office.
      2. Although the formalities are optional, placing a notice on the work eliminates the innocent infringer defense and registering the work is a prerequisite before you can initiate a suit in U.S. courts.
        1. Under the Digital Millenium Copyright Act, foreign works are exempt from this requirement.  However, registration does provide prima facie evidence that the author owns the work.

    1. Ownership and Transfer

      1. How is copyright established?  Under current U.S. copyright law, copyright is established automatically as soon as a work containing copyrightable subject matter and eligible for protection is created in a tangible fixed form.  For maximum protection, the work should contain a copyright notice and be registered with the U.S. Copyright Office.
      2. Generally, the person who actually creates the work is considered the owner of the copyright.  But there are many situations where there are multiple authors.  Thus, copyright ownership is best defined by contracts, customs and statutes.  A person can transfer her copyright to another person or group under a contract.   
      3. The two most important concepts pertaining to multiple authors are the work for hire doctrine and joint works.  Joint works are works prepared by two or more authors with the intent that their contributions be merged as a whole.  Work for hire is defined under Section 101 of the U.S. copyright statute as:
        1. a work prepared by an employee within the scope of his or her employment; or
        2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

    1. Infringement

      1. What is copyright infringement? Copyright infringement is a violation of federal law.  Copyright infringement happens when a person uses a work in a manner that violates the copyright owner’s exclusive rights to the work.  Infringement involves a third-party interfering with the following exclusive rights under Section 106 of the U.S. Copyright Act, subject to the limitations found in Section 107 through 121:
        1. reproduce copies of their works;
        2. distribute copies of their works;
        3. create derivative works;
        4. perform their works publicly;
        5. display their works publicly; and,
        6. (in the case of sound recordings) to perform their works publicly by digital audio transmission.
      2. The most common violations included duplicating copies of a work or creating derivative works without the copyright owner’s express permission.  
      3. To prove copyright infringment, courts analyze facts and a plaintiff must establish:
        1. that she owns the work; and,
        2. that the defendant took one of the exclusve rights under Section 106.

    1. Remedies

      1. The remedies for infringement and other related matters are set out in 17 U.S.C. Sections 502-513.
        1. Section 502 provides that any court may issue “temporary and final injunctions.”
        2. Section 503 permits a court to impound and dispose of all copies of a work.
        3. Section 504 provides that the copyright owner may receive damages and any profits the infringer accrued.
          1. Section 504 (c) permits the copyright owner to elect to receive statutoray damages instead of proving actual damages.
        4. Section 505 allows successful copyright owners to receive their costs and attorney fees.
        5. Section 506 allows for criminal liability to attach to individuals who infringe a copyright willfully for purposes of commercial advantage or private financial gain.

    1. Fair Use

      1. What is Fair Use?  Fair Use is a defense against a claim of copyright infringement.  Fair use authorizes a non-copyright owner to use the copyrighted work without obtaining a copyright owner’s permission.  Section 107 of the Copyright Act of 1976 defines several ways a non-copyright owner is authorized by requiring a court to balance the following four factors to determine whether a non-copyright owner has made a fair use of the copyright owner’s work:
        1. Purpose and character of the use;
        2. Nature of the work;
        3. Amount and Substantiality of the portion used; and,
        4. Effect on the market.
      2. When a court determines that the four criteria are satisfied, it qualifies as a fair use.  An unauthorized use is most likely to qualify as a fair use:
        1. If it is educational or informational in nature;
        2. If the work being copied is a reference or other non-fiction work; and,
        3. If the use has little or no impact on the potential market for the work.

    1. Public Domain

      1. What are public domain materials?  Public domain materials are works that are free from copyright protection such as:
        1. Works that were never copyrighted;
        2. Works that cannot be copyrighted;
        3. Works for which the copyright has expired; and,
        4. Works for which the copyright has been abandoned.
      2. Here is a list of various public domain works.
      3. Here is a list of public domain movies.
      4. You are free to use works in the public domain without seeking permission from the original creator, author or copyright owner.  The key thing is to establish that they are truly free from copyright protection.  To determine if a work is copyright protected or not requires a copyright investigation.
      5. Note: Use the public domain works and movies list above at your own risk. Do your due diligence and investigate them before using.

    1. Copyright Investigation

      1. A copyright investigation search is better at determining the status of copyrighted works that are registered with the Copyright Office as opposed to verifying that it is in the public domain.  
      2. When it is difficult to find the copyright owner, one can’t assume it is in the public domain or you may risk becoming an infringer.  Thus, you must conduct a copyright investigation which is generally a two-step process:
        1. Examine the work for a copyright notice and any information that may help identify who the owner is
        2. Then complete the search Copyright search request form and send it to the Copyright Office.  
        3. Although you can do it yourself, it is an involved process and requires that you gather as much information as possible such as:
          1. The type of work involved;
          2. The title of the work;
          3. The name of the creators;
          4. The approximate year when the work was created, published or registered with the Copyright Office; and,
          5. The name of the possible copyright owners.  
        4. You or your legal department can do this search or you can hire  individuals or firms to conduct a search and generate a copyright report.
      3. Possible reasons why a work might still NOT be in the public domain even if a search fails to turn up a record of the work:
        1. The work was published after 1978 and not registered;
        2. The work was published between 1978 and Dec. 31, 1922 and the copyright owner complied with applicable copyright renewal and notice requirements;
        3. The work was created before 1978 but not published therefore it is entitled to copyright protection based on common law;
        4. The work was originally published or registered in a foreign country that is party to an international copyright agreement the U.S. is also a party to;
        5. The work was registered recently but it has not been catalogued yet;
        6. The information in the search request may be incomplete, incorrect or not specific enough to identify the work; or,
        7. The work may have been registered under a different title or as part of a larger work.

    1. Using Copyrighted Works

      1. When you want to use copyright works:
        1. Determine if the work is protected by copyright or in the public domain.
        2. If it is copyright protected, determine if your use qualifies as fair use.
        3. If it is copyright protected and your use won’t qualify as fair use, obtain the right to use copyrighted materials by contacting the individual, group or company that holds the copyright and request permission.  This will lead to some form of licensing agreement that notes:
          1. What is covered by the agreement;
          2. The rights to use and modify the materials;
          3. The duration of those rights; and,
          4. The consideration (usually, the pay) you will offer the copyright owner.

    1. Moral Rights

      1. What are moral rights?  Moral rights or droit moral are a concept that originated in France.  They include the following:
        1. Right to Create, prohibiting the completion of a work from being judicially mandated;
        2. Right of Disclosure, permitting the author to determine when to make the work public;
        3. Right to Withdraw the Work after it has been disclosed, which is a limited right that applies only to publishing houses and requires the author to indemnify the publisher for losses;
        4. Right of Name Attribution/Authorship, entitling the author:
          1. to be recognized as the creator of the work;
          2. to anonymously or pseudonymously publish the work;
          3. to prevent the work from being attributed to another; and,
          4. to stop his/her name from being attributed to works he or she did not create or that later became distorted.
        5. Right of Integrity, allowing the author to prevent alterations, distortions or destruction of her work; and,
        6. Right of Protection from Excessive Criticism, permitting the author to publish a reply to unjustified criticism.
      2. The United States does NOT officially recognize Moral Rights EXCEPT for the Right of Authorship and the Right of Integrity in the case of visual artists.  One of the reasons that the U.S. does not recognize Moral Rights is that other aspects of U.S. law provide protection equivalent to Moral Rights.

    1. International Copyright

      1. What about works created in foreign countries or works created in the U.S. by foreign citizens? These works are also protected by the Copyrigt Act of 1976 if they meet one or more of the following qualifications from Section 104:
        1. They are unpublished works;
        2. They are published works and on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled;
        3. The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party;
        4. The work is a sound recording that was first fixed in a treaty party;
        5. The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party;
        6. The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States;
        7. The work comes within the scope of a Presidential proclamation based on a determination that a foreign nation is providing copyright protection to U.S. creators on “substantially the same basis” as that provided its own citizens;
        8. The work is a Berne Convention work; or,
        9. The work is a sound recording protected under the Geneva Phonograms Convention or the WIPO Performances and Phonograms Treaty.
      2. Here’s a link to a list of parties to international copyright agreements.
      3. The key points are that:
        1. All works created  by foreign citizens should be treated with the same care, caution and investigation that one would apply to works created by U.S. citizens;
        2. Since the US joined the Berne Convention, creators have broader international protection of their work (at a minimum, it must be the level specified in the treaty and a country must offer the same level of protection to foreign citizens that it provides to its own citizens).  Also, creators may eventually be given new rights to control the modification of their work; and,
        3. The display of a proper copyright notice is no longer required to ensure copyright protection.


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