Copyright

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A copyright is a formal declaration that the owner is the only one with the right to publish, reproduce, or sell a particular artistic work. The protection of a copyright is granted by the government, and covers original literary (writings), dramatic (stage and film) musical, artistic, and other creations. To explore this concept, consider the following copyright definition.

Definition of Copyright

Noun

  1. The grant of an exclusive right to make copies, license, use, or otherwise exploit an original work of art, or over the creation of an original design.

Origin

1725-1735       English (copy + right)

U.S. Copyright Law

U.S. Copyright law has its foundations in Article I, Section 8 of the U.S. Constitution, which grants Congress the 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.” The first original works were protected by copyright in 1790, and copyrights were later registered with, and monitored by, the U.S. Library of Congress. The federal Copyright Office was established as a separate entity to the Library of Congress in 1897.

According to the U.S. Copyright Office, a copyright provides legal protection for works of original authorship which are “fixed in any tangible medium of expression.”  This means that the work to be copyrighted must be in a form in which it can be perceived by others, either directly, or with the use of a device. For instance, an idea in someone’s mind cannot be protected by copyright, but once that idea has been put on paper, or written in a computer, it becomes a tangible medium of expression, which can be copyrighted. Works protected by copyright are under the sole control of the copyright holder, and cannot be used by any other person without consent. U.S. copyright law is found in Title 17 of the U.S. Code.

What Does a Copyright Protect

Copyright is a form of intellectual property law in the U.S., which offers protection for “original works of authorship,” whether published or unpublished. Such original creative works include:

  1. literary works
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works (if written down, or otherwise expressed in tangible medium)
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works

Things Not Protected by Copyright

  1. Ideas, Methods or Systems – This covers a broad spectrum of works, including methods for making or building things, scientific discoveries or ideas, scientific or technical methods, business operations or procedures, mathematical formulas, algorithms, or principles. This category also covers blank forms.
  2. Commonly Known Information – Items considered to belong to society as a whole, with no known authorship. For example, height and weight charts, rulers and tape measures, and standard calendars, fall into this category, which is often known as “the sky is blue” category, because there is no known author to that concept.
  3. Choreographic Works – Choreography, which is the step sequence and design in a dance routine, cannot be protected by copyright, unless it has been video recorded or otherwise notated. Also included under this category are speeches given, which have not been transcribed either before or after they are given.
  4. Names, Titles Short Phrases, and Expressions – This category covers names of things, slogans, catch phrases, pseudonyms, product descriptions, titles of works, and other things. A comprehensive description is available in the Copyright Office’s Circular 34. Also included under this category are recipes. Specifically, a list of ingredients cannot be protected by copyright, though the specific written directions published as part of a recipe may be protected. Other factors apply, such as whether the recipe is published as part of a cookbook, or contains other expressions that are copyrightable.

For example:

Dale has developed a method of dog training that works really well for most dogs. He writes down the steps he takes to teach dogs positive behaviors, and makes an instructional video, then sells the information online. In this example, copyright protection does not cover Dale’s methods in and of themselves, but may protect the written materials and video lessons.

Copyright Symbol

A copyright symbol is used to advise people that the work is protected by copyright, and may be used only with permission of the copyright owner. The internationally recognized copyright symbol is a capital ‘C’ enclosed in a circle: ©

The copyright symbol may be produced from a Windows-based computer keyboard by pressing the “alt” key, and holding it down while typing “0169,” then releasing all of the keys. To produce a copyright symbol on a Mac or Apple keyboard, press the “alt” or “option” key, holding it down while pressing the “g” key, then release both keys.

It is not required that the copyright symbol be present on the work in order for it to be protected by copyright law, though it makes it easier for users of a work to identify copyrighted materials. In addition to, or in place of, the copyright symbol, a work may be identified as protected by typing the word “Copyrighted.”

Copyright Search

Using creative works that belong to another person is against U.S. copyright law. Anyone wishing to reproduce or otherwise use such works must first obtain the permission of the copyright owner. Often creative works are available for hire – which is essentially paying for the right to use the work, without actually gaining ownership of it. It is possible, however, to buy the copyright in order to gain sole control over the work. Determining who owns a creative work begins with the copyright notice, if present, which provides the name of the copyright owner, and date it was issued.

If there is no notice, the owner can be found by doing a copyright search. Information on copyright registration, ownership, and transfer is available on the U.S. Copyright Office website. Individual copyrights recorded after 1978 can be searched online, by name, registration number, document number, or keyword. A copyright search for records dated 1870 through 1977 are only available through the copyright card catalog, which is located in the Copyright Public Records Reading Room on the Fourth Floor of the James Madison Memorial Building of the Library of Congress.

Those unable to personally go to the Copyright Office may choose to have the staff perform a copyright search. There is an hourly fee for such searches. The Search Estimate form, which provides fee information, and by which search criteria are provided to the office is located on the website.

Difference Between a Copyright, a Patent, and a Trademark

There are three separate types of registration that protect intellectual property:

  1. Copyright – protects works of authorship, which have been expressed in a tangible form. This includes such expressions as books, movies, works of art, and songs. Copyright protection for the individual who created the work lasts 70 years past the lifetime of the author.
  2. Patent – protects inventions, including machines, manufactured items, chemical compositions, and industrial processes. The length of patent protection varies by the type of patent granted. Design patents last for 14 years, utility and plant patents last for 20 years.
  3. Trademark – protects a symbol, design, word, or phrase that identifies and distinguishes the products of one party from those of another. This primarily applies to brand names, logos, and slogans. A trademark does not expire, but lasts as long as the owner continuously uses it.

Example of Copyright vs. Patent

Celeste has become a self-taught beauty consultant, offering her advice through online video tutorials. In addition, she has invented a device that makes applying eye makeup quick and easy. In this example, copyright laws may protect Celeste’s video tutorials, but the device must be covered by a patent.

Copyright Free Images

Easy access to a veritable smorgasbord of images online has led to widespread copyright violation when people share images that legally belong to someone else. There are many websites that host photos and graphic designs created by people that are intended for commercial use, some copyright free, others requiring the purchase of a license for use. Copyright free images are pictures for which nobody is claiming ownership. Because the creator of such artistic works holds an automatic copyright, even if he hasn’t registered it with the government, truly copyright free images are few and far between. More commonly, images are divided into two categories: royalty free, and rights managed.

Royalty Free Images

A common misconception is that royalty-free images are actually free. In reality, royalty-free means the user pays a one-time fee in exchange for nearly unlimited use of the picture. Once the fee has been paid, the image can generally be used for as long as the user desires, in as many projects desired, as long as the user complies with the license agreement. No additional royalty payments are due.

Rights Managed Images

Rights-managed images come with restrictions on their use, even after the fee is paid. Anyone wishing to use a rights-managed image pays for a one-time use, for a specific purpose. If the user wants to use the image for something else, he must purchase another license for the image. In this manner, the owner of the image more tightly controls its use, and earns more money for his works.

Copyright Example of Infringement in Derivative Works

In the 1980s, professional photographer Art Rogers took a black-and-white photo of a man and a woman holding a string of eight puppies on their laps. He offered the photo as a copyrighted, rights-managed work for use in greeting cards and other purposes. Internationally renowned artist Jeff Koons came across the photo on a postcard, and used it as a basis to create a sculpture. The man, woman, and puppies were given cartoonish features, and made in surrealistic colors. The sculpture was a hit, and Koons sold three of the four he produced for a total of about $367,000.

When Rogers saw that the sculpture was a reproduction of his photograph, he filed a lawsuit against Koons for copyright infringement, seeking $375,000 in compensatory damages, and $2.5 million in punitive damages.

Although the artist admitted freely that the sculpture had been based on the photograph, he claimed that he had used the copyrighted photo to create a parody, also known as “fair use by parody,” which can be done without obtaining consent by the copyright owner. Koons also argued that the actual photo represented an accurate depiction of the people and puppies, which he simply borrowed in order to create a representation somewhere between realism and animation.

The court found that there was a “substantial similarity” between the photo and the sculpture, such that the average person would recognize the copy, being able to make comparisons between it and the original photo. This meant that, rather than being used for a “transformative” purpose, Koons had simply copied Rogers’ work. Rogers was awarded a large monetary amount, and Koons was ordered to ship the fourth sculpture, which had yet to be sold, to Rogers.

Related Legal Terms and Issues

  • Compensatory Damages – An award of money in compensation for actual economic loss, property damage, or injury, not including punitive damages.
  • Intellectual Property – Anything created by the human intellect, such as artistic and literary works, designs, images, symbols, and names.
  • Punitive Damages – Damages awarded for the purpose of punishing the wrongdoer for outrageous misconduct in a civil matter.