Copyright

What is copyright protection?

A copyright protects a literary, musical, dramatic, choreographic, pictorial or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permission of the copyright owner. 17 U.S.C. §102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. §201. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. §106. This right lasts for the life of the author plus fifty years; or in the case of a copyright held by an entity, for seventy-five years. 17 U.S.C. §302.

What sources of law govern copyright in the U.S.?

Copyright Law in the U.S. is governed by 17 U.S.C. §§ 101-1101, commonly known as the Copyright Act, as interpreted by court decisions.

What may be copyrighted?

In order to be copyrightable, a work must be

1. fixed in a tangible medium of expression ; and 2. original.

Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. § 102(b). Anything unrecorded is not copyrightable, in as much as it is not "fixed;" for example, dances and improvisations themselves are not copyrightable: only visual recordings or written descriptions of them are. Say I go to a jazz concert and listen to a soloist's improvisation. If I have the musical equivalent of a photographic memory, I may be able to reproduce that improvised solo in my own concert on the following night. If that solo exists nowhere but my memory (i.e. the original concert was not recorded) I may play it with impunity, because it is not "fixed" and therefore not copyrightable. But, if the original concert was recorded (e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred from playing my version of the solo. Even a bootleg recording (for which the recorder can be punished under section 1101 of the copyright act) qualifies for copyright protection: a work need not be formally published in order to be "fixed;" it need only be saved in a tangible form. 17 U.S.C. § 104.

The originality requirement of 17 U.S.C. §102 demands that a work, in order to be copyrighted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content. For example, a replica of a painting in the public domain may not be novel, but it is copyrightable. An item of sculpture designed to be used as a pipe for smoking marijuana may not be designed for legal ends, but it is copyrightable. A false biography is copyrightable, although it may well also be cause for defamation litigation.

Who may hold a copyright?

A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C. §201(a), (d). In some cases, however, the actual creator is not considered the author of the work for copyright purposes: if a work is created by an employee in the regular course of her employment, it is considered a "work for hire" and the employer, not the employee, is considered the "author" of the work for copyright purposes. For example, in the absence of an agreement to the contrary, a staff writer for a newspaper does not hold the copyrights in her product, the newspaper does. This only applies to works created in the ordinary course of employment: if the same reporter writes a novel in her spare time, she herself owns that copyright.

Certain commissioned works may also be considered works for hire. 17 U.S.C. §201(b); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire" is defined in 17 U.S.C. §101.

What constitutes copyright infringement?

Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission: 1. copy or reproduce the work 2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression) 3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she possesses.) 17 U.S.C. §109(a). 4. perform or display the work in public (this right does not apply to visual art) without permission from the copyright owner. 17 U.S.C. §106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed at this location.

What defenses are there to copyright infringement?

The primary defense to copyright infringement is "fair use." 17 U.S.C. §107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rightsof the author (17 U.S.C. §§ 106 and 106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner's consent. In deciding whether a copier's actions were fair, judges will consider

1. the purpose and character of the copying (certain types of educational copying is allowed) 2. the nature of the original (originals made for commercial reasons are less protected from copying than their purely artistic counterparts) 3. the amount and substantiality of the portion copied (one may not copy the "heart" of a work without the author's permission); and 4. the effect that such copying may have on the market for the original (copying may be permitted if it is unlikely to cause economic harm the original author).

Examples of activities that may be excused as fair use include: distributing copies of a section of an article in class for educational purposes; providing a quotation in a book review; and imitating a work for the purpose of parody or social commentary.

Citation

This entire piece is from the work of Betsy Rosenblatt, Harvard Law School ¹ and is used on the Wiki to inform and educate the users of this wiki. Please note that although this work details US copyright law it is also the basis for the International treaty of which most nations are signatories to.

_{1.Rosenblatt, Betsy Copyright Basics, (Grenwich:Harvard Law School,1998) http://cyber.law.harvard.edu/property/library/copyprimer.html}