Copyright
This is an essay I am developing on Copyright Law. Come back occasionally to see the changes.
Introduction
To every creative person copyrights are both a boon and a bane. The copyright is the most valuable thing
that a writer, filmmaker, photographer, artist, composer, or musician has when they are done creating.
Sure, they have the tangible object: the manuscript, the painting, the recording, etc. But the value of
that tangible object is usually small by comparison to the right to reproduce and sell copies of it or
to make other works derived from it.
On the other hand, creative people are sometimes inspired by the works of others and wish to incorporate
other works into their own. Filmmakers may wish to sync music that they like to the other sounds and images that they
have fixed in their movie. Writers may wish to write stories based on characters that others have created.
To do so they must have the permission of the holder of the copyright. If they cannot get that permission
their is stifled but if they proceed without it then they are trambling on the rights of another creative person
and depriving them of credit and compensation for their work.
The Founders of our country not only saw this conflict but they also realized that all things must come to an
end. Their vision is reflected in the U.S. Constitution.
Fundamentals of U.S. Copyright Law: the Constitution
Article I Section 8 of the U.S. Constitution states:
"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;"
Basics of U.S. Copyright Law
Copyright law in the United States of America is primarily governed by
Title 17 of the U. S. Code
which consists of the laws passed by the U.S. Congress in various years under the
authority of Article I Section 8 of the U.S. Cosntitution cited above.
Sections of the copyright law are usually cited in this style: 17 USC §100.
What Rights Does A Copyright Give Me?
Subject to certain limitations,
17 USC § 106
gives the owner of a copyright the EXCLUSIVE right to:
-
-
- produce copies of the work
- create derivative works
- distribute copies work to the public by sale or rental
- perform the copyrighted work publicly
- display the copyrighted work publicly
Limitations on those exclusive rights include: Fair Use
(17 USC §107),
Reproduction by Libraries and Archives
(17 USC §108),
Performance or Display by Non-Profit Educational and Religious Institutions
(17 USC §110),
Cumpulsory Licenses on Phonorecords
(17 USC §115),
Archive Copies of Computer Programs
(17 USC §117),
Reproduction for Blind or Disabled People
(17 USC §121).
What Can be Copyrighted?
17 USC §102
states that "original works of authorship fixed in any tangible medium
of expression" are subject to copyright, including:
-
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
- compilations
But what is an "original work?" What degree of of originality is required?
What quantity? The statute does not explicitly say. That has been left to the interpretation of the appellate
courts.
Compilations and Derivative Works
However,
17 USC §103 extends copyrightable works to include compilations and derivative works, but only to
the material contributed by the author of the derivative work or the compilation "as distinguished from
the preexisting material employed in the work" and only if the derivative work or compilation does not
infringe other copyrights.
The copyright statute defines both
"derivative work" and "compilation." 17 USC §101 defines a "derivative work" as:
"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"."
and a "compilation" as
"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 copyright in a compilation or derivative work is independent of the copyright
(if any) in the original work "and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection in the preexisting material."
For example, if you compile an anthology of short stories which are all in the
public domain, your copyright in that compilation only applies to your arrangement
of the materials and any introductory materials or annotations. The short stories
are still in the publc domain and thus can still be published by anyone without
your consent, even if they copy them from your compilation. You cannot create a copyright in something in the public domain
by reproducing it. If you scan or photograph an old map or old book which is in the public
domain, the act of creating the image must add substantial original material to the
public domain work or there is no copyright at all. It does not matter how much
time or effort you put into recreating the original work. It is still in the
public domain.
What Can NOT be Copyrighted?
Not everything can be copyrighted.
17 USC §§ 102 & 105 state
that the following types of things cannot be copyrighted in the United States:
-
-
- ideas
- procedures
- processes
- systems
- methods of operation
- concepts
- principles
- discoveries
- any works created by the United States Government (§105)
How Is Something Copyrighted?
According to
17 USC §§ 101 & 102,
once a copyrightable work is "fixed in any tangible medium of expression" from
which it can be "perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device" the copyright exists in that work. To be
"fixed in any tangible medium of expression" it must be in a form that is
"sufficiently permanent or stable to permit it to be perceived, reproduced,
or otherwise communicated." For example, a performance is not "fixed" until it is
recorded by audio or visial means. A book or a poem is "fixed" when it is written
on a piece of paper or saved to a computer harddrive. Registration is not required
to create a copyright. However, registration provides important benefits.
How Is A Copyright Registered?
Now that is the easy part: Just visit
the U.S. Copyright Office website,
fill in the blanks on the appropriate form, print the form and mail it along with
a check for $45 and the required samples of the work to the address on the form.
Will mailing myself a copy help?
No.
Some people argue that mailing a copy of your manuscript or screenplay to yourself
will provide proof that you created it before a particular date. That is not necessarily true. Unless you
send it Registered Mail where it is sealed and stamped on the seal by a postal employee, you have no proof that
you did not mail yourself blank sheets of paper and later unseal the envelope and substitute the manuscript. Sending
a 3 pound manuscript halfway across the country by Registered U.S. Mail will cost over $16. If someone steals
your work, then you still must register it with the U.S. Copyright office before you can sue them for infringement.
So instead of $45, you are paying at least $16+$45=$61. It would have been cheaper and more efficient to have
filed it with the Copyright Office in the first place. A copyright certificate can be a very powerful tool for
making an infringer back down. It is also far more professional looking.
Will registering my screenplay with the Writers Guild of America help?
No.
The reasoning is the same as that above. You can pay the WGA their
registration fee, but you must register it with the U.S. Copyright office before you can sue for infringement.
You end up paying two fees rather than one. Only the Copyright Office can issue a copyright certificate that
can truly protect your work.
Coming Soon:
More Basics
Recent Legislation
Issues in Copyright Law
- Characters: Ideas or Expression?
- Fair Use or Infringement?
- Public Domain
- Copyright Clashes on the Internet
Practical Matters: How the hell do you license...anything?
- Music: Sync Licenses/Mechanical Licenses/Compulsory Licenses
- Literature: Serial Rights/Book Publication/Adaptation Rights/Translations/Options
- Movies: "Videogram" aka Home Video/Broadcast/Cable/Theatrical/Ancillary Distribution
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