Copyright Law

What is Copyright Law and What Works are Protected by it?

Under the current U.S. Copyright Act, the Copyright Act of 1976, federal law prohibits the unauthorized copying of a work of authorship. The copyright-patent clause of the Constitution empowers Congress to grant copyright protection to the "Writings" of "Authors."' (US Const, Art I, Section 8, Cl 8). As such, Copyright protection exists for "original works of authorship fixed in a tangible medium of expression." (17 U.S.C. § 102(a)).

For a work to be protected by copyright law, it must be "original." (17 U.S.C. § 102(a)). This is an easy standard to meet, as the amount of originality required is very minimal. In Feist Publications, Inc. v. Rural Telephone Service Co., a landmark case in the field of copyright law, the Supreme Court for the first time squarely addressed the issue of the degree of creativity necessary to sustain a copyright in a compilation of factual material. The court establishes that a mere “modicum of creativity” is necessary. (Feist Publications, Inc. v Rural Telephone Service Co., Ill S Ct 1282, 1288 (1991)).

The Copyright Act uses the phrase "works of authorship" to describe the types of works that are protected by copyright law. (17 U.S.C. § 102(a)). Congress included an un-exhaustive list of eight works of authorship within the Copyright Act itself:

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.

According to the Copyright Act, a work is considered to be “fixed in a tangible medium of expression,” if it is “embodied in a copy or phonorecord, by or under the authority of the author, [it] is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is 'fixed' . . . if a fixation of the work is being made simultaneously with its transmission." (Goldstein on Copyright, 3rd Ed.)

In short, this means that it is set in a form in which it can be perceived either directly or with the aid of a device. Common examples include: a poem that has been written down on paper or electronically; the film on which a photograph has been taken; for a musical work, it could be either the phonographic recording or the sheet music. Copyright protection attaches as soon as the work is fixed in a tangible medium. (See U.S. Copyright Office)

What is NOT Protected by Copyright Law?

Not all works or types of works are eligible for copyright protection. Generally, these works are either protected by some other form of intellectual property, or have been considered inappropriate for copyright protection. These include, but are limited to, unfixed works, titles and short phrases, ideas, and utilitarian items.

Unfixed works: Because fixation in a tangible medium is a requirement for copyright protection, works that have not been fixed in a tangible form of expression are not protected under the Copyright Act. (17 U.S.C. § 102).

Titles and short phrases: To be protected by copyright, a work must contain at least a minimum amount of authorship in the form of original expression. Names, titles, and other short phrases are simply too minimal to meet these requirements. However, these may be protected under trademark law.

Ideas: Ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection. As stated in the Copyright Act: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (17 U.S.C. § 102).

Ideas and inventions are the subject matter for patents, while the expression of ideas is governed by copyright law. Thus, only the copying of the work is prohibited--anyone may copy the ideas contained within a work. For example, a copyright could cover a written description of a machine, but the actual machine itself is not covered. Thus, no one could copy the written description, while anyone could use the description to build the described machine.

Utilitarian items: Copyright protection is generally not available to articles that have a utilitarian function. This is why garments and accessories are only provided with very minimal protection under the doctrine of copyright.

Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." (17 U.S.C. § 101). This is referred to as the doctrine of separability, and has been a topic of significant struggle for courts.

How Do You Receive Copyright Protection?

Copyright protection attaches as soon as the work is fixed in a tangible medium, not upon publication. Thus, in order to receive copyright protection in a work, it simply must be original and fixed in a tangible medium. (17 U.S.C. § 102). No other actions are required for copyright protection. There is no need to file an application for copyright protection, or to place a copyright notice on a work.

Copyrights can be registered in the Copyright Office in the Library of Congress, but newly created works do not need to be registered. However, the Copyright Act does provide additional benefits to those who register with the Copyright Office. Consequently, copyright registration and the use of a copyright notice is recommended.

Moreover, for works of U.S. origin, registration with the Copyright Office is a prerequisite to certain remedies that may be gained in an infringement suit. (17 U.S.C. § 412). If there is a timely registration of the work, the owner of the copyright may receive statutory damages for infringement beyond any award of actual damages and profits.

What Rights does Copyright Entail?

A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily protected for the length of the author’s life plus an additional 70 years after the author’s death. (17 U.S.C. § 106).

Copyright law in the U.S. grants certain exclusive rights to the owner of a copyright in a work. These include: the right to reproduce the copyrighted work; the right to prepare derivative works based upon the work; the right to distribute copies of the work to the public; the right to perform the copyrighted work publicly; and the right to display the copyrighted work publicly.

Infringement is, thus, the use of a copyrighted work of another in any of the aforementioned manners without permission from the copyright holder. In order for the copyright holder to successfully file an infringement lawsuit, he must have a valid copyright; the person who is allegedly infringing must have access to the copyrighted work; and the alleged infringement of the copyrighted work must be outside of the exceptions to copyright infringement.

Fair Use: An “Exception” to Copyright Infringement

One of the most common exceptions or defenses to copyright infringement is fair use, which “allows use of copyrighted materials without obtaining permission as long as the use can be considered fair.” (Purdue).

Generally, fair use refers to “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.” (Stanford). Most fair use analysis falls into two categories: commentary and criticism (such as when you comment upon or critique a copyrighted work) or parody (which is when a work that ridicules another, usually well-known work, by imitating it in a comic way).

Courts generally consider a four-factor analysis, in order to determine whether the use at issue is fair. These factors include: (1) The purpose/character of the use; (2) The nature of the work; (3) How much of the original work is embodied in the subsequent work; and (4) Market harm. (TFL).

ALSO SEE: Proposed Copyright Legislation for Fashion Designs.