Basic Copyright Principles

What Does Copyright Protect?

In identifying works that are protected by copyright, it is important to note that copyright protection governs the expression of an idea, not the idea itself. There can be numerous expressions of the same idea, all of which can be subject to separate copyright protection as long as the expression itself is original. For example, there are numerous action adventure movies with essentially the same plot, but the dialogue and scenes are somewhat different. Each movie qualifies separately for copyright protection because the expression is different, even though the ideas are all the same. Other items that are not protectable under copyright law include:

(a) procedures, processes, systems, methods of operation, concepts, principles, ideas or discoveries, which generally are protectable under patent law;

(b) facts (historical facts, for example, are not themselves protectable, and are considered public domain information, although a movie containing footage acting out such facts would be protectable because the movie is protectable expression);

(d) anything in the public domain, which means that no other form of protection exists, such as trademark or patent protection (most classical music is in the public domain, although in the case of a particular recording of any such music, such as the Atlanta Symphony's recording of Beethoven's Ninth, the recording itself would be protectable under copyright law as an original expression). Likewise, a recording of Beethoven's Ninth by a high school band would also be subject to separate copyright protection as an independent expression. Also in the public domain are programs produced by the federal government, such as Presidential addresses, and Congressional hearings, but beware of

(i) work done by contractors for the federal government, because often the contractor is allowed to own the copyright and

(ii) broadcasts of public domain materials, because the broadcasts would be copyright-protected to the extent that there is added commentary or material (such as voiceovers or screen graphics, etc.). Finally, designs based on simple geometric shapes, colors, textures, and other generic elements are often considered public domain and not copyrightable.

Copyright protection, like patent protection, is based on the U.S. Constitution Article I, Section 8 - "The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;..." Under this provision, a copyright owner has exclusive rights to works of authorship created by that owner.

There are eight categories of copyright (17 U.S.C. §102(a)). An author’s work must be “fixed in a tangible medium of expression” and fall under one of these categories to qualify for copyright protection:

(1) literary works (this category includes books, articles, and software programs and their accompanying documentation)

(2) musical works, including any accompanying words (this applies to the music itself plus any lyrics);

(3) dramatic works, including any accompanying music (this applies to plays and any music that is included in the play)

(4) pantomimes and choreographic works;

(5) pictorial, graphic and sculptural works (this is the visual arts and graphics category);

(6) motion pictures and other audiovisual works (this category covers most all multi-media works);

(7) sound recordings (this covers CDs, cassettes, etc.);

(8) architectural works (this covers architectural plans)

What Rights Does Copyright Protection Provide?

Over the years there have been numerous changes to the term of copyright protection, to the requirements relating to registration of a work with the U.S. Copyright Office, and with regard to whether or not a work should be marked with the copyright symbol in order to actually receive protection. Currently, copyright protection exists from the moment a work of authorship is created. No further action is necessary for an author to claim that its work is protected by copyright. However, registration of a work with the U.S. Copyright Office is required before one can file a lawsuit against an infringer. When an application for registration is filed by the copyright owner, one of the eight categories listed above must be selected. Although previously it was necessary to mark one's work with the copyright symbol or designation in order to claim copyright protection, it is no longer required that works be marked in order to qualify for protection. If a work was produced prior to January 1, 1978, it is generally unprotected, unless it bears a copyright symbol. Since March 1, 1988, a copyright notice is not required on copyrighted works, although it is advisable to use one, since it puts the public on notice as to who owns the copyright and provides a stronger position for the copyright owner in a copyright infringement case.

Copyright protection is valid from the moment of creation of the work until the death of the author plus seventy (70) years. If the work is a "work for hire" (meaning it was created by an employee in the scope of employment or by an independent contractor, who assigns ownership to another party), the copyright protection is valid for ninety-five (95) years.

Because of the numerous changes to copyright law over the years the question of whether an older work is copyright-protected depends on a number of variables, including the year the work was first created. Therefore, if one needs to know the exact status of copyright in a particular work, it is advisable to check with an attorney or with the U.S. Copyright Office.

Once copyright protection exists for a work, the owner has six exclusive rights (17 U.S.C. §106), which no one can exercise without the permission of the copyright owner. The owner can grant a third party a license to all rights as a whole or to one or more rights separately. The owner's exclusive rights to control are:

(1) the right to make copies;

(2) the right to prepare derivative works (works based on and incorporating the original work in some way);

(3) the right to distribute copies (this would include making copies available over the Internet);

(4) the right to perform the work publicly (which applies to musical and dramatic works, motion pictures, etc.);

(5) the right to display the work publicly (for audiovisual works, sculptural work, pictorial and graphic works, etc.); and

(6) in the case of a sound recording, the right to perform the work publicly by means of a digital audio transmission.

If a copyright owner grants to a person the right to create derivative works of an original work, the person creating the derivative work will own the copyright in the derivative work. Those rights in the derivative work, however, extend only to the material contributed by the person creating the derivative, not to the original work on which the derivative was built. Copyright in the derivative work is independent of and does not affect or enlarge the ownership or scope of copyright protection in the preexisting material (a colorized movie is a good example – the black and white being the original and the colorized version being the derivative work).

Copyright Infringement

The most obvious infringement of a copyright is direct copying, but that is hard to prove, so it is usually inferred when there is shown to be (i) substantial similarity between the original and the allegedly infringing work and (ii) access by the alleged infringer to the original work.

When one is accused of infringement, the first defense is usually that the work is not subject to copyright. The second defense may be that the allegedly infringing work was independently developed.; In cases where access and substantial similarity are conceded, fair use and/or parody may be used as a defense.

Fair use was first written into law in the 1976 revision of the copyright act (17 U.S.C. Section 107) and is generally conceded to be the most complicated area of copyright law, with issues relating to music being particularly problematic. The fair use statute basically provides that use of copyrighted work is not an infringement if one's use of the work is for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and the following factors are resolved in favor of the person using the copyrighted work:

(1) the purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes (criticism and comment is one of the most widely accepted examples of fair use; use by a non-profit is more likely to be a fair use than use by a for profit);

(2) the nature of the copyrighted work (use of portions of copyrighted material in informational works involves a better chance of a finding of fair use than use in a creative work);

(3) amount and substantiality of the portion used in relation to the copyrighted work as a whole (the greater the amount of the copyrighted work used, the less likely it will be deemed to be a fair use - also courts will consider whether a party copied the "heart" of the copyrighted work or less distinctive parts); and

(4) effect of the use on the potential market for or value of the copyrighted work (This is the most important element. The Supreme Court has ruled that the plaintiff in a copyright case only needs to demonstrate the likelihood of future harm. It is not necessary to show actual harm. (Sony Corp. ofAmerica v. Universal City Studios, Inc., 464 U.S. 417 at 451 (1984)))

The four factors listed above are always considered when copying has obviously occurred and while all four factors are important; it is generally conceded that the most important factor is the last factor - the effect of the copying on the potential market for the copyrighted work.

Also important in determining liability for infringement is the first sale doctrine. Under copyright law the owner of a physical copy has the right under the first sale doctrine to resell the copy and make personal copies of it. The copyright owner’s exclusive rights do not control what the owner of the physical copy can do with the copy, so long as the resale by the owner of the copy does not result in multiple new copies.