Copyright Basics

Laws regarding copyright have been around for hundreds of years. Virtually every nation has laws protecting works of creative authorship, and has entered into treaties respecting copyrights granted by other nations. As the ease in which copies can be made increases, from the printing press to the digital revolution now known as the Internet, likewise the controversies increase between those who have created the content and those who wish to use the content. The laws regarding copyright are quite complex. The United Sates Copyright Act runs for more than 250 pages with 6 pages being devoted to defining terms used in the Act. This guide will seek to explain and demystify the major provision of the Copyright Act.

A live band performing under blue lights
Musical works, including the lyrics, if any, generally qualify for copyright protection.

A copyright is a government grant of a legal monopoly to the author. As authorized by the Constitution, in Article 1, section 8, an author is granted exclusive rights in works created by the author. However, in return for this monopoly, after a certain period of time, the author loses rights to the work, and it becomes free to the public (a work is said to go into the “public domain”). If a work is protected by copyright, you may not make copies, alter the work, distribute copies to the public, perform the work or display the work without permission of the copyright owner.

What Qualifies for Copyright Protection?

In order for a work to receive copyright protection, a work must possess three distinct elements. Once all three elements are combined, copyright protection exists. Registration of a work with the Copyright Office is not required in order to obtain copyright protection.

  1. The work must be original, that is to say, the work must be a product of the author’s own imagination, creativity and intellect. Put more simply, the author cannot copy from any source, which includes the author’s own subconscious memory. However, this does not mean that if two works are very similar to each other that copyright infringement exists. Two works can be very similar, and not be infringements of each other if the works were created independently of each other. This means that the author created the work without having read, heard, watched or experienced the other work.
  2. The work must be considered a work of “authorship.” The work must contain some sort of artistic expression. Except with items that also have a non-artistic function (such as a lamp base), this requirement is liberally interpreted. The Copyright Office only checks to see that the work has artistic expression, and is unconcerned with artistic worth or merit.
  3. The work must be “fixed” in a tangible medium. The work must be placed in some medium that can be touched and perceived. However, the work need not be immediately perceptible from the copy. The perception can be accomplished with the aid of a machine or device, such as a computer or DVD player. So, pictures stored on a flash drive or a computer qualify as being fixed, as does a story written down in a book. The method of fixation includes methods not yet invented at the time of the passage of the 1976 act, so all future technologies that “fix” a work will qualify.

Generally the following types of works qualify for copyright protection:

  • Literary works, such as a book, or any other work that communicates in words, numbers or symbols, such as a computer program.
  • Musical works, including the lyrics, if any.
  • Dramatic works, such as stage plays, musicals and operas.
  • Pantomimes and dances, such as a ballet.
  • Pictorial graphic and sculptural works, such as drawings, paintings, still photographs and sculptures.
  • Motion pictures and other audio-visual works, such as movies, TV shows, music videos and anything that can be put on YouTube.
  • Sound Recordings, which are a recorded series of sounds of any type, which are capable of repetition, such as CD’s, MP3 files, cassette tapes and vinyl records. This is a separate copyright from the one that protects a musical composition.
  • Architectural works, which include not only the architectural plans but the finished building as well.

What is Not Protected by Copyright?

  • Ideas. What is protected is how the idea is expressed, not the idea itself. “I love you,” is the idea behind most popular songs. How you say this idea, such as “My Girl” or “Just the Way You Are” is the expression.
  • Methods, systems, processes, facts, history, theories, and unoriginal organization of facts, no matter how they are expressed.
  • Titles. The Copyright Office considers the title to merely be an identification of the work and too short to contain the necessary artistic expression to qualify for copyright protection. If sufficiently famous enough, a title may qualify for trademark protection, such as “Star Wars.”
  • Individual words and short phrases are considered by the Copyright Office to be too short to contain the necessary artistic expression to qualify for copyright protection. Again, these may be eligible for Trademark status.
  • Works created by the United States Government, including all statutes, rules, pamphlets and court opinions.
  • Constitutions and laws of any of the 50 States.
  • Any work which has entered the public domain.

Public Domain

The term “public domain” describes a work of intellectual property (primarily patents and copyrights) whose legal protection has expired. Once a work has entered the public domain, any person may use the material, change it, perform or generally exercise any of the rights normally associated with copyrights. Shakespeare’s Romeo and Juliet is in the public domain and has been retold many times, in works such as West Side Story, Disney’s Pocahontas and Avatar.

Impressionist painting by Degas showing young ballerinas training.
This painting from 1879 is in the public domain.

The United States is a signatory to the Berne Copyright Treaty, and many nations have joined in this treaty as well. The Berne treaty obligates all signatories to treat foreign copyrights on the same basis as domestic copyrights. Since lengths of copyright protection vary from country to country, a work may be in the public domain in one country but not another country. So, even though the copyright protection may have expired in the United States, certain internet uses may constitute copyright infringement in a foreign country. Also remember that foreign countries do not adhere to the same rules governing personal jurisdiction that rule the USA, so be careful.

The public domain does not apply to persons. Frequently, someone who is a “public figure” for purposes of libel and slander is mistakenly referred to as being in the “public domain.” People who are public figures nevertheless retain rights to privacy and publicity, which limit the use of their name, image, likeness, and private facts about their personal life. These are governed by the laws of an individual state.

Copyright Duration

If an artistic work is created and fixed after January 1, 1978:

  • Works created by a single author are protected for a term equal to the life of the author plus 70 years after death.
  • Works created by more than one author are protected for a term equal to the life of the last surviving author plus 70 years after death.
  • Works in which the author is either not identified at all or if the author is using a “pen name” or “stage name” instead of their real name are protected for a term of 95 years from first publication or 120 years from creation whichever expires first. However, if at any time before the work goes into the public domain the author may reveal his or her true name in a filing with the Copyright Office, and be converted to the “life plus” term.
  • Works in which the author creates a work as a part of his or her job as an employee for someone else creates a “work made for hire,” which is protected for a term of 95 years from first publication or 120 years from creation, whichever expires first.

If an artistic work was created before January 1, 1978 and registered under previous Copyright Acts:

  • All works that have not otherwise gone into the public domain by reason of faulty publication or failure to renew, are protected for a term of 95 years from first publication or registration, whichever occurs first.
  • Works that went into the public domain under the previous law remain in the public domain, meaning all works registered with the Copyright Office or published in the United States (with or without registration) in or before the year 1922 are in the public domain.
  • A work properly registered, but published without copyright notice is in the public domain.
  • A work properly registered but not renewed when required is in the public domain.

Works created before January 1, 1978 but never registered or published are treated the same as if they were created as of January 1, 1978, with a minimum length of protection until December 31, 2002.