Chapter One – A Copyright Overview
- Copyrights are only one form of intellectual property protection; other types are patents, trademarks, and trade secrets
- A copyright is a type of legal protection provided by each state in the U.S. and also by the federal government
- Copyright law states that there are certain types of works that are protected under certain circumstances
- “copyright protection subsists…in original works of authorship fixed in any tangible medium of expression … from which they can be perceived, reproduced, or otherwise communicated…”
- U.S. Congress has the authority to protect writings to promote the progress of science and useful arts
Works–the subject matter that can be copyrighted
- The official categories protected are: literary works, performing arts works, sound recordings, serials and periodicals (newspapers), and visual arts
Originality– a work must be original in order to be copyrighted
- The original aspects of a work can be copyrighted
- Creativity doesn’t even have to be something altogether new, it can take the form of the way in which you arrange other people’s efforts
Recordation– final requirement of copyright
- Work is written down, recorded, or otherwise accessible after the date it was created
- Uruguay Round Agreements Act-prevents aspiring musicians from exploiting impromptu songs and making a fortune, it also precludes the unauthorized recording of live musical performances
What Constitutes Recordation?
- In the absence of recordation, it’s difficult to establish what exactly was created
- The medium that you use to record the work is key, it must allow someone to perceive, reproduce, or communicate the work
- Make Sure Music or Words are Written Down!
Need-To-Knows–When reviewing items for copyright protection, the concepts of expression and publication
A basic principle of copyrights is that they protect the expression of an idea, not the idea itself
Expression is the unique way in which you present information, perform a play, write a song, or provide your opinion on a topic
The concept of expression versus an idea can be a bit tricky
A single idea can be expressed in more than one way
Publication, which generally means that a work is copied and distributed to the public for sale, is not a requirement of copyright law
Publication can affect your rights as a copyright holder, in terms of the rules regarding registration and the longevity of a copyright
What’s Not A Copyright?
Items commonly thought to be covered by copyright law, but are actually not covered
- Short writings such as titles, names, short phrases, slogans, familiar symbols, or designs, lettering, coloring, and mere listings of ingredients or contents-cant be copyrighted
Ideas & Such
- The following items also cant be protected by copyright law: ideas, procedures, methods, systems, processes, concepts, principles, discoveries or devices
- These things may, however be better protected by patent law
- A description, explanation, or an illustration of anyone of the forgoing items can be copyrighted, because it is an example of expression
Works that contain no originality are not protected by copyrights: examples are formulas, standard calendars, rulers, scientific tables, and the like
Patents–enables the patent owner to prevent others from doing certain things with the invention
- A patent is a form of legal protection for ideas, inventions, processes and methods
- You must go through the process of applying for a patent through the U.S. Patent and Trademark Office
- Essentially, the grant gives the inventor a monopoly in the invention for a limited period of time
Trademarks–protect those words and symbols that help consumers id the origin of the goods
- These marks typically act as the brands a company may use to offer its products or services
- Trademarks are also associated with a defined set of products or services or both
- Protection allows the trademark owner to prohibit others from using a mark that is confusingly similar
Chapter Two – TYPES OF WORKS
- Details regarding the different types of works that are protected by copyright
- Congress has enacted laws that define this in a much broader sense than you would have imagined
- Technology not only expanded the realm of works that needed to be protected, but also increased the likelihood of infringement
Copyrights fall into one of a variety of categories:
2.)Visual Arts Works
3.)Performing arts works
5.)Serials and periodicals
It’s important to classify your work in order to ensure it is subject to copyright protection and to choose the proper federal registration form
1.) Literary Works
- Literary works are expressed in words, numbers or other verbal manners
- Can be recorded on paper, computer disc, or some other physical form
- The underlying facts in a book or their various interpretations are not protected by copyright
- Examples of literary works include books, online works, poetry, computer programs, other printed materials (pamphlets, tests, and reports) and other texts
- Like computer programs, games, automated databases, contributions to a collection, compilations, speeches, manuscripts, reports, dissertations, theses, bound, or loose-leaf volumes, reference books, directories, advertising copy, online works, textbooks
- Compilations—a group of information borrowed from various sources but put together in such a way that the final product as a while can be considered original and creative
- Collective Works—collection of individual pieces that make up a final product (ex. Multiple article magazines)
- The difference between a compilation and a collective work is that a compilation is only one aspect of the effort that goes into creating a collective work
- A collective work assumes that you also need to do some editing and revising—as a result, you not only have a copyright in the unique way in which you put it together but also in the edited and revised aspects of the work
- Online Works—information presented online, such as the data on the home page of a website
- Copyright only extends to those aspects of the work that are otherwise copyrightable
- You need to clearly identify what is and what is not copyrightable when you apply for copyright registration
- The other issue with online works is that websites are updated very frequently, if you wanted to register for a copyright every time you update your site, you’ll need to register each update separately and pay a separate fee each time
- Games—aspects of games that contain what is considered literary or pictorial expression can be protected by copyright
- Poetry—if you’re an aspiring poet, your words fall under the literary works category
- Computer Programs—computer programs are made up of source code, otherwise known as a set of instructions interpreted by a computer to take certain actions and create a desired result
- A copyright will only protect the way you wrote the program
2.) Visual Arts
- Visual arts works include many of the items that you might imagine—paintings, sculptures, and drawings; other examples such as jewelry designs and dolls, may not be so obvious
- Visual arts work can be two dimensional or three dimensional, it can also be fine, graphic, or applied art, architectural drawings also fall into this category
- Examples of visual arts works include: photos, drawings, paintings, murals, games, puzzles, greeting cards, postcards, stationary, jewelry designs, dolls, toys, artificial flowers and plants, artwork on clothing, ads, commercial prints, labels, bumper stickers, decals, stickers, cartoons, comic strips, posters, reproductions like lithographs, needlework and craft kits, patterns for sewing and knitting, fabric, floor and wall covering designs, CD jacket artwork and photos, sculptures like carvings, ceramics and figurines, architectural drawings or plans, blueprints and diagrams
- Some visual arts works are considered useful articles, which means that they do more than simply communicate the information that could be protected by copyright—copyrights don’t protect the useful aspect
- Some designs can also be protected under patent law by what is called a design patent
3.) Performing Arts Works
- Performing arts works are works that are intended to be performed in front of an audience
- Examples include: dramatic works, such as movie scripts (complete with the soundtrack), musical works, such as concerts, movies and other audiovisual works, dance routines (choreographic works), including performances in operas, Broadway musicals or plays, ballets, or motion pictures
- Can sometimes be confused with a visual arts work, make sure you know what exactly you’re seeking to protect
- Special Consideration for Scripts—the key thing to remember with a script or similar type of writing is that it is intended to be performed and therefore considered a performing arts work
- Some factors that influence this in the writings are cues for plot and directions for action
4.) Sound Recordings
- This category includes works that have a series of spoken, musical, or other types of sound
- Musical efforts that go along with a movie or other type of audiovisual work are excluded from this category; those fall into the performing arts category
- The key here is that these recordings are strictly focused on the recordation of sound rather than audiovisuals recorded on a videotape
- Your copyright in a sound recording will cover both the performance and the manner in which the performance was engineered and produced
- A related work may fall into more than one category and you may need to register it in each of the relevant categories
5.) Serials & Periodicals
- Works that are intended to be issued in successive parts with an indication of where it falls in the series (like a monthly magazine with the month and year on the cover) are considered serials
- Newspapers, magazines or other similar works that are delivered or provided on a regular basis
Chapter Three – COPYRIGHTS: YOUR RIGHTS AND THEIRS
- If you own a copyright in a work, what benefits do you really get?
- Copyright owners are concerned about others reaping the benefit of the hard work that went into creating the copyrighted work
- Rights of the Copyright Holder
- As a copyright owner, you will enjoy 5 exclusive rights when it comes to your copyrighted work
- Exclusivity means that you can stop others from doing certain things with your copyrighted work without your permission
- Exceptions include the concept of fair use as well as some others that will be pointed out as we go along
Exclusive Rights of a Copyright Holder:
- The copyright owner has the exclusive right to make copies of a copyrighted work
- An exception to the exclusive right is that libraries, broadcasters, and owners of computer programs have been afforded the right to make a single copy of a copyrighted work
- An adaptation is a transformation of the work into another form
- An adaptation is another name for a derivative work
- Other examples: translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations
- As the copyright owner, you have the exclusive right to sell or rent copies of the protected work (unless, of course, you provide someone else with permission to do)
- The concept of selling or renting a copyrighted work equates to publication of that work and can impact the duration of the term of your copyright as well as the registration procedures
- The fact that distribution is an exclusive right puts a copyright owner in control of whether to publish the work
- On a separate note, once you sell a copy of your work to someone else, that person now has the right to do whatever he or she wants to with that particular copy
- The official definition of a protected performance includes reciting, rendering, playing, dancing ,and acting
- You are permitted to perform someone else’s work privately, which means only for your family members and social acquaintances
- Certain exceptions to the performance rule: performances for charitable, religious, non profit and educational purposes are ok, visual arts works cant be performed so there is no exclusive performance right for visual arts works, finally and for a real twist, you are permitted to perform a sound recording ( there is no exclusive right)
- The underlying musical composition is considered a performing arts work and performance of such a work therefore requires consent of the person who composed the music
- For all categories of copyrights other than sound recordings, the copyright owner has an exclusive right to display his or her copyrighted work
- A display includes showing a copy via TV, film, or any other device or method
- Exceptions: if you have a legitimate copy of a copyrighted work, you’re allowed to display it to viewers in its usual setting; others are permitted to display a copyrighted work for charitable, religious, nonprofit, and educational purposes
Rights of Attribution and Integrity
- The copyright law now provides some additional protections for folks who create a subset of visual arts works
- The subset includes one of a kind or limited edition paintings, drawings, sculptures, prints, and photographs
- The law prohibits people from improperly claiming they created the work
- If you’re the artist, you can actually claim authorship over the work even after you sell it
- What is copyright infringement?
- If you own a copyrighted work, then you can stop someone from doing any of the things outlined above without your permission
- If they don’t listen to you and they actually reproduce, adapt, display, perform, or distribute your copyrighted work, then they are infringing your copyright
- It’s not difficult to demonstrate infringement if they are clearly (a) using your copyrighted work and (b) doing one of the 5 activities exclusive to the copyright owner
- In most cases, elements are not so clear
- MP3.Com—lost a huge copyright case in 2000 to Universal Music Groupà UMG bought MP3.com later onHow Do You Know Someone is Infringing?
- If someone is using your exact copyrighted work you don’t have to worry about proving that you work was stolen
2 Key elements that can determine infringement: access and substantial similarity
1.) Access—someone who is accused of infringing a copyrighted work must have had some access to the work prior to the infringement
One of the things you will need to prove is that the individual had access to your chest—if not then even an identical work would not be considered infringement
2.) Substantial Similarity—if you can demonstrate access to a copyrighted work, you also need to demonstrate that the work in question is substantially similar to your copyrighted work
If the average person concludes that the alleged infringing work incorporates important parts of your work, then this is considered substantial similarity
There are a couple different approaches to figuring out whether there’s a substantial similarity between works:
a.) Similarity of Overall Structure
- It happens a lot that copyrighted works are copied, but the infringer simply tries to use different language in order to make the new work look differentà in these cases, you should look at the overall structure and how one thought flows to the next, to prove infringement—the structural similarities have to be pretty close
- Courts have found that parodies of copyrighted works are permitted under certain circumstances and fall outside the exclusive rights of a copyright holder
b.) Partial Copying
- Where a portion of a song is taken and used in a new song (may have been a portion of the lyrics or a repetitive drum sequence)
- The big question is whether enough of the original work was appropriated to deem the two works substantially similar
- In order to determine substantiality, you would look at the importance level of the appropriated portion in relation to the new work
- If the most recognizable piece of a song is used prominently in a new song without permission then it may be considered a case of infringement
- One of the ways you can identify infringement is by finding the same errors in the new work as in the original
Licensing and Sale of Copyrights
- You can treat intellectual property just like any other property
- You can rent it (called a license) or sell it (called an assignment)
- You can decide under what terms you will license it
Several things you may want to consider before licensing your copyrighted work to another person or a company
License—the nature of the relationship between you and the seller is that the seller is licensing the right to create a derivative work and distribute it to others, you are also giving this person the right to display the work for purposes of increasing sales; therefore, the license that you provide to the seller has to be focused (and limited) on what the seller will be doing with the painting and the resulting lithographs
Money—you can request some payment upfront for the right to produce the lithographs or you may just want to make money each time a lithograph is sold, perhaps you can negotiate for both; this is a risk/reward analysis
- You could probably make more money from sale royalties, assuming that the person selling the lithographs is successful
- If you prefer safe money—otherwise known as upfront money, you’ll probably settle for less
Term—for how long are you going to allow this person to sell your picture?
- If the person is unsuccessful, you should have the ability to end the relationship and either do it yourself or engage with someone who can sell the lithographs more successfully
- As the copyright owner, you have a tremendous amount of flexibility due to your ability to terminate a license agreement
Geography—where can the seller distribute the lithographs?
- You can limit the seller to a specific territory so that you can engage with potential sellers in other areas
Limitation on Number of Lithographs—so that your painting and its resulting lithographs don’t become commonplace, you’ll want to limit the number of lithographs that may be printed and sold
Quality Review—you’ll want to make sure you get a chance to review the quality of the lithographs before they are sold to ensure they meet minimum standards
Sale of a Copyrighted Work
- You need to differentiate in your mind a sale of a copyrighted work and a sale of the copyright itself
- You may also decide to sell all rights to the painting along with the exclusive rights to reproduce, adapt, display, and distribute
- To do this, the purchaser must have an ironclad written agreement that clearly outlines the transfer of the intellectual property rights; the physical object is not sufficient
- The new copyright owner can record the transfer of ownership within the U.S. Copyright Office
Chapter Four – FAIR USE
- There are some cases that allow the use of a copyrighted work without the copyright owner’s permission
- These cases are referred to as fair uses
- There is no absolute definition for fair use; however, courts have developed a set of guidelines that help to distinguish between uses that unfairly violate the rights of the copyright owner, and uses that are reasonable, fair, customary, and expected
- Rules of thumb that are applied in determining if a use of copyrighted material is a fair use
Rules Regarding Fair Use
- The general rule is: if you use copyrighted material, you need to get the owner’s permission
- But fair use enables you to use the copyrighted material without permission
- The Copyright Act says that fair uses include creating copies of a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research
Four Factors Considering When Use is Fair:
1.) The purpose and character of the use
2.) The nature of the copyrighted work
3.) The amount used
4.) The effect of the use
- There are other factors that are considered by courts when determining if a use of copyrighted material is a fair use
- The rules of fair use are most accurately defined as guidelines that are applied in a reasonable manner on a case-by-case basis
Application of the Fair Use Rule
The following examples are considered fair uses:
- A quotation of excerpts in a review or criticism for purposes of illustration or comment
- A quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations
- A use in a parody of some of the content of the parodied work
- A summary of an address or article, with brief quotations, in a news report
- A reproduction by a library of a damaged portion of a work
- A reproduction by a teacher or student of a small part of a work to illustrate a lesson
- A reproduction of a work in legislative or judicial proceedings or reports
- An incidental and fortuitous reproduction in a newsreel or broadcast of a work that happens to be located in the scene of the reported event
Four Factors for Determining Fair Use
What do you need to do if your use does not align with one of these examples? First you should compare your use against the following four factors. Each of the four factors raises several questions, depending on how you answer each question will help to determine whether your use is a fair use, an infringing use, or in the fuzzy zone.
1.) The Purpose and Character of the Use
- In determining whether a use is a fair use, the courts will look at the purpose and characteristics of your use.
- A quick test is to check whether the use is for non profit purposes ( this leans toward fair use) à a non profit use is a use that is not intended to generate revenue or commercial gain for the user or for commercial reasons (this leans toward an infringing use)
- Is your Use for Educational Purposes? If it is, its fair use.
- Is your use for Personal Purposes? If it is, its fair use.
- Examples: videotaping a television program to watch at a later time, making a backup copy of software disks, copying a song from one medium to another
- Is your use for the purposes of criticism? If it is, its fair use.
- Is your use for the purposes of commentary? If it is, its fair use.
- Is your use for the purpose of reporting the news? If it is, its fair use.
- Is it used for parody purposes? If it is, its fair use.
- Is use a transformative use? If it is, its fair use.
If you are using an existing work and augmenting it with new and creative efforts, then you’re likely transforming the work or performing a transformative use of it.
- Is your use a commercial use? If it is, its infringing use because it is intended to generate profit for the user.
A few additional questions help to determine commercial use:
v Will you sell copies of the new work that includes the copyrighted material?
v Will your work be used to entertain others?
v If your use is through an entertainment broadcast, will you receive financial benefit for the broadcast through advertising or payment?
v Will the new work you create fail to recognize the original author?
2.) The Nature of the Copyrighted Work
- The courts will also look at the nature of the copyrighted work when making a determination of fair use…sometimes the work is naturally intended to be copied for certain purposes.
- The copyrighted work can include a collection of well-known or easily discovered facts that are put together into a work without adding any imagination or creativity
- When an author publishes a work, he or she should anticipate that others will have access to the work
- For unpublished copyrighted works, it is more difficult to justify a fair use.
Questions to answer regarding the nature of the copyrighted work that you plan to use:
- Is the copyrighted work primarily factual? If it is, its fair use.
- Is the copyrighted work primarily historical? If it is, its fair use.
- If the copyrighted work is primarily factual, are the facts easily obtained by doing simple research? If it is, its fair use.
- If the copyrighted work is primarily factual, does it appear that the authors had to engage in extensive research to derive the factual content? If the answer is yes, its infringing use.
- Did the authors of the copyrighted work appear to use creativity in creating the work? If it is, its infringing use.
- Is the copyrighted work fictional? If it is, its infringing use.
- Is the copyrighted work published? If it is, its fair use.
- Is the copyrighted work unpublished? If the answer is yes, its infringing use.
3.) The Amount of Copyright Information Used
- The Copyright Act focuses on “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”
- The simple test is to establish the amount of the copyrighted work that was used…another element to take into account is the substantiality of the portion
Questions regarding the amount of the copyrighted work that you plan to use:
- Are you using a small amount of the work? If so, the use is fair.
- Are you using a small percentage of the work? If so, the use is fair.
- Are you using the minimal amount of the work necessary to achieve your goal, such as in a criticism or a commentary of the work? If so, the use is fair.
- Does your use incorporate an incidental or unimportant portion of the work? If so, the use is fair.
- Does your use incorporate the essence of the work? If so, the use is on the infringing side.
- Are you using a large amount of the work? If so, the use is on the infringing side.
- Are you including portions of the work that are not necessary in achieving your goal, such as in a criticism or a commentary of the work? If so, the use is on the infringing side.
- Are you using a large percentage of the work or the whole work? If so, the use is on the infringing side.
4.) The Effect of the Use
- The Copyright Act focuses on “the effect of the use upon the potential market for or value of the copyrighted work.” This factor must be viewed a little differently than the other three factorsàthe reason for this is: if the use is weighing heavily on the fair use side, then the effect on the potential market becomes irrelevant.
- Before looking at this factor, you should make sure that you have analyzed your use in light of the first three factors
- If you determine that your use is a fair use, then you can ignore this factor…if you determine that your use is not a fair use or that it falls in or near the fuzzy zone, then you should consider this fourth factor with very much care
Questions regarding the effect of the use:
- Do you own a legitimate copy of the original copyrighted work upon which your new work is based? If so, the use is on the fair side.
- Will your use have a negative impact on the sales of the original copyrighted work(such as, reducing sales)? If so, the use is infringing.
- Is the original work still in print or available for purchase? If so, the use is infringing.
- Has the copyright owner obtained royalties through licensing the copyrighted work? If so, the use is infringing.
- Are you going to be marketing the new work in a similar fashion as the original work (ex. Selling it in a book store)? If so, the use is infringing.
- Would others be likely to purchase your new work instead of the original work? If so, the use is infringing.
- Will your use result in distributing a large number of copies of the new work? If so, the use is infringing.
- Are you able to identify the copyright owner of the copyrighted work? If so, the use is infringing.
- Creating a parody of a copyrighted work is an interesting situation
- Parody is a form of criticism that can result in casting the original work’s author in an unfavorable light
- If you are planning on creating a parody, you should be careful. The lines between parody and copyright infringement can be very blurry
Are You Certain Your Use is a Fair Use?
If you find yourself in the fuzzy zone or the infringing use zone, you have at least 4 options to consider:
1.) just to plow ahead and hope for the best
2.) seek the advice of an attorneyà an attorney can review your use and prepare a legal opinion concerning your use. A legal opinion is a written document prepared by an attorney that describes your use in view of the law
3.) get a license…ask the copyright owner for permissionà the permission may come as a free gift, or the copyright owner may require some sort of compensation for the use
4.) just don’t do it… if you are not certain whether your use is a fair use, and you don’t have the copyright owner’s permission, you might want to consider an alternative solution
Chapter Five – Obtaining Copyright Protection
A copyright is actually a very easy form of protection to obtain
Copyright automatically attaches to the language and the unique way in which words are arrangedàtherefore, registration is not required
There are significant benefits to registering your copyright with the U.S. Copyright Office
Benefits of Federal Registration
Why you’d need to bother registering your copyrightàcopyright registration makes a public record of general information related to copyright.
Registration gives other people notice that you have and claim a copyright and provides the following benefits:
Before you can file an infringement suit related to a work created in the U.S., you must register your copyright
Your registration of a work within five years of its publication will establish the validity of your copyright and the facts stated in the copyright certificate in court
Your registration of a work within three months of publication or prior to an infringement of the work will allow you to seek a set range of damages (statutory damages) and attorney’s fees in an infringement action rather than having to prove how much damage someone’s infringement caused youà Statutory damages range from $500-$20,000 per violation and sometimes $100,000…otherwise, the copyright owner can receive an award of actual damages and profits…often its either too difficult to prove the actual damage caused by a copyright infringement or the amount is too small to make it worth suing.
Your registration enables you to obtain additional protection from the U.S. Customs Service against the importation of infringing copies of your copyrighted work
Federal “Do it Yourself” Copyright Filing
You can either pay a lawyer a few hundred dollars to register your work or you can do it yourself. Depending on the kind of work you created, you will be required to fill out a special registration form. It’s critical that you figure out which category your work falls into
How to Fill Out the Registration Form
- Each of the copyright categories has its own registration form
- The registration forms can be obtained from the U.S. Copyright Office website at www.copyright.gov, under the section entitled “How to Register a Work”