Copyright Basics - the Highlights

An introduction to copyright law drawn from the copyright statute and from Copyright Basics by the Library of Congress, Copyright Office: http://www.loc.gov/copyright/circs/circ1.html

Ronald W. StaudtChicago-Kent College of Law

Copyright Basics

U.S. Constitution Art 1, Sect. 8 Cl. 8

“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”

Copyright Basics

U.S. Copyright Act, 17 U.S.C. §§ 101 - 810

§ 102.  Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship

fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.  

“original works of authorship “

Originality demands that the work not be copied.

Second requirement imposed by the Supreme Court is that there must be at least a minimum level of creativity.

A work is "fixed" in a tangible medium of expression

when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

§ 102. Works of authorship include the following categories:

   (1) literary works;    (2) musical works, including any accompanying words;    (3) dramatic works, including any accompanying music;    (4) pantomimes and choreographic works;    (5) pictorial, graphic, and sculptural works;    (6) motion pictures and other audiovisual works;    (7) sound recordings; and    (8) architectural works.

Works that can be protected by copyright

Literary works– Books, articles, letters

– Computer source and objectcode

Works that can be protected by copyright

Musical works

Sound recordings

Works that can be protected by copyright

Pictorial, graphic and sculptural works– Paintings, drawings– Photographs– statues

§ 102(b)

In no case does copyright protection for an original work of authorship extend to any idea,

procedure, process, system, method of operation, concept, principle, or discovery,

regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright protects expression

§ 102(b) embodies the famous copyright “idea/expression dichotomy”– Ideas are not protected – anyone can do

a play about star crossed lovers– Expression is protected – you cannot

copy the dialog from West Side Story

Things that are not copyrightable subject matter

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

Things that are not copyrightable subject matter

Works that have not been fixed in a tangible form of expression, (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Things that are not copyrightable subject matter

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

Things that are not copyrightable subject matter

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Works in the public domain– The works of Shakespeare, for example,

Fonts History or other facts Recipes Scenes a faire Processes, systems, methods of operations

More things that are not copyrightable subject matter

Sec. 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Sec. 103. Subject matter of copyright: Compilations and derivative works

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

A "compilation"

is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works.  

A compilation can be an “original work of authorship” if

its selection, coordination and arrangement is not copied and .

its selection, coordination and arrangement evidences at least a minimum level of creativity.

A "derivative work"

is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work"

A "derivative work"

Can be the movie orthe book or the play.

A derivative work can be an “original work of authorship” if

its editorial revisions, annotations, elaborations, or other modifications … as a whole

are not copied and evidence at least a minimum level of

creativity

Sec. 201. Ownership of copyright

(a) Initial Ownership. - Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.

Employer if the work is made for hire or the work is specially ordered or commissioned

A "work made for hire" is

   (1) a work prepared by an employee within the scope of his or her employment; or    

A "work made for hire" is

(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.

Sec. 106. Exclusive rights in copyrighted works

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

Sec. 106. Exclusive rights in copyrighted works

(2) to prepare derivative works based upon the copyrighted work;

Sec. 106. Exclusive rights in copyrighted works

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Sec. 106. Exclusive rights in copyrighted works

4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

Sec. 106. Exclusive rights in copyrighted works

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

Sec. 106. Exclusive rights in copyrighted works

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

NOTICE OF COPYRIGHT

The use of a copyright notice is no longer required under U. S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.

Copyright Basics http://www.loc.gov/copyright/circs/circ1.html

COPYRIGHT REGISTRATION

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.

Copyright Basics http://lcweb.loc.gov/copyright/circs/circ1.html#cr

HOW LONG COPYRIGHT PROTECTION ENDURES

A work that is created … on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. … For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

http://lcweb.loc.gov/copyright/circs/circ1.html#cr

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright

Fair Use Factors

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Fair Use Factors

(2) the nature of the copyrighted work;

Fair Use Factors

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Fair Use Factors

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Digital Millennium Copyright Act

Copyright Office Summary (pdf)