COPYRIGHT LAW

Protection for Intellectual Property

by Joelle Steele

If you're like most people, you may not understand the differences between copyrights, trademarks, and patents. Per Article I, Section 8 of the U.S. Constitution, Congress may enact laws that "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." These laws each protect a different type of intellectual property – any intangible creation of the mind made tangible, such as a book (copyright), an invention (patent), or a business logo (trademark). Here's an explanation of how copyright protects creative works.

COPYRIGHT PURPOSE

The purpose of having an original creative work copyrighted is to protect it from misuse or infringement by others. It is also to allow the owner of the copyright to control how the work is used and to take legal action to prevent misuse or to prosecute infringers. Infringement refers to someone other than the creator passing off the work as their own (plagiarism) or creating a different version of the original work (a derivative).

WHAT CAN BE COPYRIGHTED

The types of works that can be copyrighted include creative works of art such as paintings, drawings, etchings, graphic designs, photographs, books, manuscripts, poems, music, lyrics, plays, screenplays, movies, Web site content, choreography, etc. A creative work is automatically copyrighted the moment it is made tangible, regardless of whether it has been published or displayed publicly. In other words, an idea for a painting cannot be copyrighted, but the painting, once completed, is automatically copyrighted. According to the U.S. Copyright Office:

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

ESTABLISHING OWNERSHIP

Before you can copyright anything you must establish its ownership. To establish ownership you must to be able to prove that you obtained it legally (inherited it from the creator, purchased the copyright from the creator, or created it yourself). According to the U.S. Copyright office:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright. Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself.

COPYRIGHT TERM

How long a copyright lasts varies according to when the work was created. Anything created on or after January 1, 1978 is protected from the moment it was created, and that protection lasts for the length of the creator's life plus 70 years after his or her death. If you created the work with another person, that 70 years begins after the death of the last surviving creator.

COPYRIGHT REGISTRATION

Registration of your copyright is not required, but you may do so, at any time during the life of your copyright, with the Copyright Office of the Library of Congress. If there is ever a legal action being taken to prove/disprove copyright infringement, the timing of the registration could be significant, since it determines, in part, any damages that may be awarded in such a lawsuit. Also, if a copyright is registered, it allows its owner to record that registration with the U.S. Customs Service, which strives to protect you from having illegal copies of your work distributed.

COPYRIGHT NOTICES

You can use one of the following copyright notice formats, and it doesn't matter whether you use the copyright symbol or spell out the word:

DERIVATIVE WORKS AND PLAGIARISM

Plagiarism is the outright affixing of one's name to another's creative work. Only a copyright owner may reproduce their own work. A far more common problem than plagiarism is that of derivatives. With any kind of intellectual property you must obtain permission from the creator and owner of a copyright in order to use their work in any way. For example, if you use an image created by an artist or photographer and digitally enhance it in some way and then put it up on your website, you have created a "derivative work." If you do this without obtaining the permission of the artist or photographer whose image you used, you are infringing on their copyright.

Author Alexandra Ripley wrote a derivative, a sequel to Margaret Mitchell's "Gone With The Wind," and to do so, she had to first obtain permission from the author's heirs and the book's publishers. George Harrison was involved in litigation surrounding a song he wrote, "My Sweet Lord," that was believed to be a derivative of composer Ronnie Mack's "He's So Fine" (recorded by the Chiffons). Harrison lost the 10-year-long case (Bright Tunes Music v. Harrisongs). But not every derivative work is deemed a derivative. Artist Andy Warhol was sued by several people, including Campbell's Soup for his use of their soup labels in his art. The court ruled that Campbell's Soup cans were American icons and were fair game for the pop artist's work, but Warhol nonetheless compensated Campbell's with gifts of his art. And lastly, Weird Al Yankovic has repeatedly exercised the Fair Use Doctrine to build a career out of his musical derivatives, parodies of the works of various popular music composers.

The following are definitions of derivative works as stated by the U.S. Copyright Office:

17 U.S.C. §101: 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.'

U.S. Copyright Office Circular 14: A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable. Who may prepare a derivative work? Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

FAIR USE AND PUBLIC DOMAIN

In some cases, currently and previously copyrighted material can be used legally and without permission of the creator under certain sections of the copyright laws, most commonly those of "fair use" and "public domain."
The Fair Use Doctrine is detailed in the United States Copyright Law, Title 17, U.S. Code, Section 107. In general, it refers to the right to use copyrighted material belonging to other parties for the purpose of commentary, criticism, news reporting, scholarship, research, and instruction. According to the Copyright Office, A work of authorship is in the 'public domain' if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. Works published prior to 1923 fall within the public domain.

INTERNATIONAL COPYRIGHT

Unfortunately, there is no system of international copyright laws to protect your work worldwide. According to the U.S. Copyright Office:

Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.

If you publish your work outside of the United States, you can still have your work copyrighted by the U.S. Copyright Office if the work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA).