Top Five Basics of Copyrights
Intellectual Property Blog May 3, 2017
5. You can’t copyright anything you want.
Copyright protection is reserved for original works of authorship fixed in a tangible medium of expression. A work of authorship is any intellectual work, such as literary, dramatic, musical or artistic work. Such work is “fixed in a tangible medium of expression” when it is more than just an idea or thought in someone’s head: it is recorded, written, or performed.
The measurement for originality is relatively low; in fact, courts consider works showing a “modicum” of originality as meeting this threshold.
Copyright protection is not given to mere facts or data, such as the information that can be found in a phone book. However, if the arrangement of the facts or data meet the “originality” threshold, that compilation may be eligible for copyright protection.
This is a phone book. People used to use it to find out the numbers of their local business establishments. It has no copyright protection because it is not original to list names of residents or businesses in alphabetical order.
4. Copyrights don’t last forever, but thanks to Sonny Bono, it’s pretty close.
Prior to 1978, a published work held copyright protection for 28 years from the time it was registered, and was eligible for a renewal of 67 years. However, in 1992, then Senator Sonny Bono (yes, of Sonny + Cher fame) convinced the U.S. Congress to extend the term of protection.
Now, works created by a single person are protected for the life of the author plus 70 years. Works created “for hire” (as part of employment for a business) are protected for 95 years from the date of publication or 120 years from the date of creation, whichever expires first.
What about a work published prior to 1978 that was already in its renewal term in 1992? The life of that work was extended to a total of 95 years from the date the copyright was originally secured. Because of this law, Disney’s first incarnation of Mickey Mouse, Steamboat Willie, remains under copyright protection until January 1, 2024.
We would put a picture of Steamboat Willie here, but he’s still protected under copyright. Even when his protection is up, we can’t put his picture up without incurring legal consequences. Since Disney registered the Steamboat Willie version of Mickey as a trademark in 2009, he will be protected as long as Disney uses him.
3. When a copyright expires, the work falls into the public domain.
Those works whose protection has expired “pass” into the public domain. The public domain is the incorporeal realm in which unprotected works resided. Once a work is in the public domain, a person can freely use it without fear of prosecution or licensing fees.
A lot of the works currently in the public domain are those that did not make the 1992 renewal cut-off, predominantly published prior to 1923. For example, Arthur Conan Doyle’s four novels and 46 short stories about Sherlock Holmes published prior to 1923 happily reside in the public domain for major movie and TV studios to use at their creative discretion.
The next “class” of works to fall into the public domain does so January 1, 2019, and includes The Prophet by Kahlil Gibran and “Stopping By the Woods on a Snowy Eve” by Robert Frost.
Quick, pick your favorite Sherlock Holmes! If you don’t like any of them, you can create your own!
2. Even if a work is copyright protected, you may be able to use it to create your own material.
The power of a copyright comes from the Progress Clause of the U.S. Constitution (“To promote the Progress of Science and useful Arts…”) Art. I, § 8, cl. 8. That means that works are protected in order to promote the art.
Sometimes, creators choose to take already created works and transform into something of their own, which is considered within the spirit of the Progress Clause. In these instances, a creator can ask the person holding the protection over the used work for a license, preferably prior to creating the new work.
A license lets the creator use a certain portion of the work for a period of time, and usually requires a fee and acknowledgement in the new work of the contributed material. Failure to obtain a license, or going outside the parameters of the license, can result in infringement and the loss of a lot of money.
Cautionary tale: Band The Verve got into trouble with its quintessential 90’s anthem “Bittersweet Symphony” when it went outside of its six-note license. Not only did The Verve lose money litigating the issue, but had to share writing credit with Mick Jagger and Keith Richards (the immediately recognizable string composition is based on a 1965 Rolling Stones song) and relinquish all royalties to Allen Klein, the former Rolling Stones manager who owns all of the bands’ pre-1970 music.
In limited cases, use of copyright protected material is considered fair use and can overcome a claim of infringement. Copyright law allows for use of a protected work for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research.” 17 U.S.C. § 107.
This is how newspapers are allowed to publish images of celebrities. It is also how some people can make parody works. However, this use is limited, and it is best to ask permission first.
While Weird Al’s work is considered parody, he stays on the right side of the law by seeking licenses for the underlying works in his songs. Good job, Weird Al!
1. You don’t have to federally register your work in order to gain protection, but you’ll regret it if you don’t.
According to “common law,” copyright protection naturally exists from the moment the work is created. That’s right, as soon as you wrote that epic novel it is protected by copyright!
However, you need to register that work with the U.S. Copyright Office for the affordable fee of $35* in order to gain the ability to defend against infringement of your work by others across the country. You also gain access to other legal “perks,” such as the ability to win statutory damages and attorney’s fees if you prevail in your lawsuit.
If you have already “published” your work, which includes public performance or display, you can still register your work within five years of that publication in order to establish valid federal copyright protection.
*As of the date of this post for online filing of a single application; fees increase for multiple works, works for hire, or if you feel the sudden urge to file a paper application
If you have unprotected works, believe someone has infringed your works, would like to use a protected work, or just have questions, please contact us here at Kegler Brown.