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The Basics of Copyright Law

What do copyrights protect?

Copyrights protect creative works. Classic examples are artistic works such as books, music, and movies, but copyrights actually cover all “original works of authorship,” which include everything from computer software to architecture.

To meet the standard for copyright protection, a work must be “original.” That means its author actually created it, rather than copying the material from someone else. Originality also requires at least some “creative spark,” even though the requirement is minimal. An ordinary list, such as the telephone numbers found in the White Pages, is generally not sufficiently creative to be protected under copyright law.

The work must also be “fixed” in some way. For example, a live musical performance is not copyrighted unless it is recorded. Even the images that appear on a computer screen may be fixed, to the extent they are recorded in an electronic medium.

How does the law distinguish among copyrights, trademarks, and patents?

Businesses regularly confuse copyright protection with trademark protection. Copyright will not protect the name of a product, for example, but trademark may.

Trademarks identify source. They are intended to help consumers distinguish your product or service from a competitors’ product or service and assure that other businesses don’t try to profit from your good name. Copyrights, by contrast, protect an actual creative product. For example, a Harry Potter book is a creative work covered by copyright. The name of the character “HARRY POTTER” may also be a trademark identifying a series of books and related products.

Copyrights cover creative works themselves, whereas patents cover products and processes that “do” something useful. Trademarks identify the source of such products or services. For example, Microsoft might patent a new computer software based on its ability to perform certain functions. It will have copyright protection for the software’s source code. It might also obtain a trademark on the name of that software.

How are businesses affected by copyright law?

For businesses that create and distribute original creative products, such as software developers or mass media companies, copyright protection is at the core of their intellectual property rights. Most other companies tend to be more concerned with trademarks and patents, although any company that produces original content, such as marketing materials, should be familiar with its rights under copyright law.

All companies need to be concerned with copyright infringement – namely, making sure that employees do not subject the company to litigation or damages through a pattern of copying copyrighted works. Even among large organizations, infringement can be common, whether by installing unlicensed software on computers or by reproducing books, articles, or other documents without permission There are a lot of misconceptions about what can and cannot be copied. Businesses may need to educate employees about copyright law and establish guidelines or policies to ensure compliance.

What don’t copyrights protect?

Copyrights don’t protect discoveries, facts, or ideas – only the way they are described. (An underlying idea, of course, may provide the basis for a patent.) If you write an article about your observation that helium balloons tend to pop when taken on airplanes, then your article itself (the words you use) is protected. But anyone else is free to write about the same phenomenon, or to take a balloon on a flight and try it for themselves.

Copyrights don’t protect titles, which are considered too short and insufficiently original. As with the Harry Potter example above, however, be aware that titles may sometimes be trademarks.

Copyrights also don’t protect works published by the Federal Government, which may be reproduced at will.

Who owns a copyright?

Normally, the person who creates the work owns the copyright. However, if the work is created by an employee in the scope of his or her employment, then the employer owns the copyright, absent any agreement to the contrary. Such works are known as a “works for hire.” An artist can, of course, assign some or all rights under the copyright to someone else, as authors often do in exchange for royalties when they sign contracts with publishers.

Remember that buying a work doesn’t mean you buy the copyright, unless you sign an agreement to that effect. Even if you purchase an original work of art, you don’t simultaneously purchase the copyright. The artist retains the copyright, and you can’t make or sell copies of the work without permission.

How long do copyrights last?

A long time. For individual authors, a copyright lasts for the person’s lifetime, plus an additional 70 years. For non-persons (such as in a “work for hire”), the copyright lasts for 95 years from the date of first publication or 120 years from creation, whichever is shorter.

What rights do copyright owners have?

Copyrights give the author certain exclusive rights, such as the right to make copies, modify or create derivative works (such as translations or dramatizations), and allow public displays or performances. Anyone wishing to do any of those things during the duration of the copyright must receive permission of the author, subject to certain limited exemptions.

What is infringement?

Infringement is performing any of those exclusive rights without the permission of the author.

Are there any rules of thumb for how much you can copy?

No. There are many mythical “rules of thumb” about adding differences, like changing 20%, making 3 changes, and the like. The only test is whether you had access to the original and the resulting work is “substantially similar.” Differences will not matter if the works are still substantially similar. The work will be infringing.

What is “fair use”?

There are certain exemptions to copyrights, such as for a teacher using a lawfully-obtained copy in the classroom under certain circumstances, or for performance of religious works during religious assembly, or for certain nonprofit performances. Most of these exemptions are significantly restricted.

“Fair use” is not an exemption to copyright law. The concept of “fair use” is a defense, which presumes that an infringement has occurred. Not surprisingly, the test of “fair use” isn’t always easy to apply.

“Fair use” generally encompasses areas such as criticism, comment, news reporting, or teaching. A use that falls into any of those categories doesn’t automatically qualify as “fair use.” Instead, four factors must also be considered:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the
copyrighted work used
4. The effect on the potential market of the copyrighted work

The “purpose” reflects why you want to use the work. If your use is intended for your own commercial gain, it is less likely to fall under the category of fair use. Free speech, for example, doesn’t necessarily protect all parody from copyright infringement. When “Weird Al” Yankovic parodies a popular song, he gets permission from and pays royalties to the original artist.

The “nature” of the work itself includes whether it is published or unpublished and whether it is creative or fact-based. Under this factor, unpublished and creative works tend to get more protection. Even though facts cannot be copyrighted, it is easy for authors to go beyond fair use by copying the way those facts are presented.

How much you use, and which parts, reflect the “amount and substantiality” factor of fair use. Normally, the less you use (such as a quote from a movie in a review of that movie), the more likely the use falls under the category of fair use. However, what was used counts as much as how much was used. If you use the core of the work, even a small amount of copying may violate fair use.

Finally, consider the effect of the use on the author’s “potential market.” If you copied a work so that you didn’t have to buy additional copies of the original, or if you did so to avoid having to pay a license fee to the author, it’s unlikely to qualify as fair use.

There are rarely black-and-white answers when analyzing fair use. Consult with an attorney before you make use of a copyrighted work. The only way to have certainty is to ask permission.

What are the penalties for copyright infringement?

They’re steep. Both the organization where the infringement takes place and sometimes even the individual who makes the copies may be liable. For registered works, a copyright owner may seek damages as high as $30,000 per copied work and $150,000 if the infringement was “willful.”

Does a work have to be registered to be protected by copyright?

No. Registration is recommended because it brings certain benefits when an author wants to enforce his or her rights. Works are copyrighted, however, as soon as they are fixed in a tangible medium of expression.

Do the same copyright laws apply to the Internet?

Yes. Just because works are available on the Internet does not mean they are in the “public domain.” Works published on the Internet enjoy the same copyright protection as other works, and copying a copyrighted work from the Internet without permission of the author still constitutes infringement.

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