Copyright Law 101

by Donald R. Simon, Esq.

Property laws are concerned with the rights of ownership in things.  This property concept is not limited to physical things like books, houses, and cars—it includes intangible creations, such as musical notes, pictures, and words.  These creative forms of property are sometimes called intellectual property because they are products of the mind and have a legal status apart from any physical product upon which they are fixed.  There are three main forms of intellectual property: copyrights, trademarks, and patents.  This article provides a brief introduction to copyright law.

Copyright may be defined as an exclusive right of control over literary or artistic creations.  It also drastically reduces freedom to borrow material from others.  Copyright owners are afforded virtual monopolies over their protected works of expression.  The primary purpose of copyright protection is not to make writers, artists, or musicians rich, but to encourage creative production for the ultimate benefit of society by giving copyright owners control over how and when their works will be exploited commercially.  Copyright is the lifeblood of the entertainment and creative arts industries.

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

·         To reproduce the work in copies or phonorecords;

·         To prepare derivative works based upon the work;

·         To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

·         To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

·         To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

·         In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

The power of Congress to enact copyright law is derived directly from the U.S. Constitution. Article I, Section 8 states in part:  "The Congress shall have 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…".  This clause also grants Congress the authority to enact patent laws for the protection of inventions.

Expression. Copyright protects the creator’s particular manner of expression.  No particular degree of literary or artistic merit is required in order to attain copyright protection.  But the work must have involved some expressive effort.  Copyright protects "original works of authorship" that are fixed in a tangible forms of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.  Also, the work must fit into at least one of the eight categories of works of authorship covered by copyright law: 1) literary works; 2) musical works, including any accompanying words; 3) dramatic works, including any accompanying music; 4) pantomimes and choreographic works; 5) pictorial, graphic, and sculptural works; 6) motion pictures and other audiovisual works; 7) sound recordings; and 8) architectural works.

It is important to remember that names, titles, and other short phrases, even though expressive, do not qualify for copyright protection.  They may, however, be protected by trademark law.  Also, 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.

Formalities. For something that could be potentially worth huge sums of money, copyright ownership is simple and relatively cheap to obtain.  Essentially, ownership begins automatically as soon as the work is fixed in some tangible form.  Literally, as soon as one puts pen to paper, composes or drafts a work, and then lifts that pen from the paper, copyright ownership attaches.

Though not a requirement for ownership, Congress provides for a system of copyright registration.  Yes, you can do the "poor man’s copyright" and mail a copy of the creative work to prove the creation date, but federal registration offer many distinct advantages.  Copyright registration through the Copyright Office (part of the Library of Congress) establishes a public record of the copyright claim, allows for the use of the federal court system, provides for reimbursement of attorney’s fees and court costs, and the receipt of certain statutory damages from infringers.

Registration is obtained by sending to the Copyright Office:

1) A completed registration form.  The appropriate form is determined by the type of creative work.  For visual arts, use Form VA.  Textual materials, use Form TX.  Use Form SR for sound recordings.

2) Filing fee of $45 (paper) or $35 (online).

3) Nonreturnable deposit(s) of the work.

The Copyright Office briefly examines each application to determine that all requested information has been provided and that the material is of a copyrightable nature.  A certificate of registration is then issued.  The Copyright Office has recently switched over to an online system for faster registration!

Duration. Congress has the power to protect copyrights "for limited times."  The duration of copyright protection has been amended several times since the first copyright statute was passed in 1790.  In 1998, Congress passed the Sonny Bono Copyright Term Extension Act.  By doing some, the duration of copyright protection is now life of the artist, plus 70 years.

When applicable period ends, the work falls into the public domain forever.  This means that the copyright can never again be owned.  The work is then available to be freely copied or published by anyone without fear of infringing the copyright.

There is more to copyright law, especially in the areas of licensing, sampling, and fair use.  As a creative artist, you are encouraged to learn as much as possible about this complicated area of law.  For more information and to download registration forms, go to www.copyright.gov.