A citizen's legal guide to American copyright law

A Citizen's Guide to Copyright law in the United States

Welcome to New Media Right's Citizen's Guide to Copyright! There are many reasons you might be interested in the guide below.

You could be a creator, an artist, or a programmer who has created a video, recorded a song or podcast, or written something, and are here to learn "what rights and what control do I have over my work."

You also could be someone who saw a video, heard a song or podcast, or read a blog post, article, book, or the like, and now would like to post it on your own blog, myspace page, or even incorporate or remix what you saw or heard into your own, new creation.

Below is our basic guide to understanding what rights copyright law in the United States gives both the creators of works and those who then use or want to remix those works into new creations. This guide and our website are written with an eye towards the ability of almost everyone who has an internet connection these days to share their creative works and the creative works of others.

Table of Contents

I. Where does the authority for copyright law come from?

II. What is "copyright"?

III. How do you get a copyright?

IV. What CAN'T be copyrighted?

V. How long do copyrights last?

 

I. Where does the authority for copyright law come from?
The authority for the United States Congress to enact copyright laws stems from Article I, Section 8, Clause 8 of the United States Constitution:

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.

Subsequently, Congress has enacted the Copyright Act of 1976, which can be found in Title 17, Sections 101 - 805, of the United States Code. You may view a complete copy of Title 17, as provided by the United States Copyright Office, at: http://www.copyright.gov/title17/circ92.pdf

 

II. What is "copyright"?
On the most basic level, it is the "right to copy" an original creation. It is not a single right to use a particular expression of an idea or information as many people may believe, but rather is a "bundle of rights" regulating such uses. This "bundle of rights" includes:

  1. Reproduce the copyrighted work(link) in copies or phonorecords
  2. Prepare derivatives ( adaptations, variations) of the original copyrighted work
  3. Publicly distribute the copyrighted work
  4. Publicly perform the copyrighted work
  5. Publicly display the copyrighted work
  6. Digitally perform copyrighted sound recordings

Despite these rights, certain circumstances allow other people than the copyright holder to use a copyrighted work, or a sample or piece of a copyrighted work under Fair Use

1. Reproduce the copyrighted work in copies or phonorecords;

"Reproduce" means "copy," and applies to almost every form of copying imaginable, whether you are talking about photocopying printed materials, copying and pasting copyrighted images or text from the internet, scanning images into digital form, posting copyrighted music or videos on YouTube, or making a copy of the new CD you just bought (or downloaded) for your best friend.

However, there are numerous exceptions to what constitutes "reproduction." Actually, a better approach to understanding these exceptions may be to say that these exceptions determine not what reproduction is, but rather when and how certain types of reproduction are legal. Such exceptions include, but are not limited to, the following:

  1. "Fair use" rights, where certain uses (educational, commentary, criticism) allow reproduction by someone other than the copyright holder;
  2. Limited reproductions by libraries and archives as statutorily provided for;
  3. Limited reproductions of pictorial, graphic, & sculptural works in useful articles; and
  4. Such non-statutory reproduction concepts as time-shifting and space-shifting , both of which have been held to be non-infringing methods of lawful reproduction by the Supreme Court.

"Phonorecords" are defined as material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed (link to "fixation" below) (see below). Examples include old-school records, tape cassettes, CD's, and digital recordings on computer hard drives. "Copies," on the other hand, are defined as material objects, other than phonorecords, in which the work is fixed. Examples include printed material and any other media that do not fall within the confines of being a "phonorecord."

This reproduction right is the most fundamental of the exclusive rights provided by the Copyright Act. It is essentially the right to produce a material object in which the work can be duplicated, transcribed, imitated, or simulated in a fixed form, and can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

2. Prepare derivatives of the copyrighted work;

When you think of the right to make "derivatives," think of adaptations of the original work in question.

This right, known as the "adaptation" right, secures to the copyright owner the exclusive right to prepare derivative works based on the copyrighted work, and is infringed when a third party makes an unauthorized derivative work.

As with all rights of the copyright holder, this right is subject to important exceptions, and, most importantly, it is not violated if you are making "Fair Use" of the entire or part of a work.

A "derivative work" is a special form of works of authorship based upon one or more preexisting works which has been recast, transformed, or adapted. Derivative works include editorial revisions, annotations, elaborations, or other modifications to the original work. Note: The modification gets new copyright protection for the normal term the moment it is fixed, but the original work itself is still only protected by copyright from the original day it was fixed.

While original works of authorship are considered "first generation" works, composed essentially of materials created by their authors, derivative works fundamentally are "second generation" works based on preexisting matters. To qualify for copyright protection, authors of derivative works must incorporate preexisting material and satisfy the standard fixation and originality (link to below) requirements. The preexisting material used must also have been copyrighted itself and not have been used unlawfully. However, such lawful use does not mean the copyright owner's consent must have been obtained.

Limitations on the adaptation right include, but are not necessarily limited to:

  1. Parental control and other technology that makes limited portions of the audio or video content of a motion picture imperceptible at the direction of a home viewer, if no fixed copy of the altered version of the motion picture is created. This includes, for example, software which enables parents to prevent children from viewing or listening to specific content they find objectionable.
  2. Copying or adapting individual computer programs by owners of the programs if such new copies or adaptations are created as an essential step in using the computer program in conjunction with a particular machine of the consumer's choice. Thus, if you have purchased a copy of a particular software program, depending on your licensing agreement, you may be able to alter it if it is necessary in order to make the program usable in conjunction with the particular machine which you have purchased it for(for instance if you purchased a program for the Windows operating system but wanted to use the program on the Linux operating system). Also, it is important to note that the statutory language exempting such adaptation from being copyright infringement does not contain any language suggesting the copied or derivative program may only be employed in uses specifically intended by the copyright owner.
  3. The making, distributing, and displaying of pictorial representations of architectural works embodied in buildings visible to the public. Thus, if you see a scale model of a building that is in the planning stages of being built, and you subsequently design a building that is exactly or substantially the same building based on the model you saw, that is infringement of the adaptation right held by the copyright owner of the building's architect or designer. However, once the building has been built and it is visible to the public, although you still may not design another building that is exactly or substantially the same, you are free to make drawings or other pictorial representations of the building and to distribute them. Perhaps you may want to make a representation in the online world, Second Life, for instance.

****Remember: When considering whether a derivative work is protectible, the issue is not whether the author of the derivative work has the right to copy the underlying work, but whether there is enough difference between the derivative and the underlying work to satisfy the originality requirement.

Compilations

In contrast to derivative works, "compilations" result from a process of Selection, Arrangement, and Presentation (SAP) of preexisting materials, regardless of whether the individual items in the material have been or ever could have been subject to copyright. Compilations are fundamentally "second generation" works based on preexisting matters. The two types of compilations are "collective works" and "factual compilations." While the former are separate and independently copyrightable preexisting materials brought together by the compiler, the latter are facts, data, or public domain materials which, in and of themselves are not copyrightable, but are brought together by the compiler with such an element of originality as to the SAP as to make it copyrightable.

For a work to qualify as a copyrightable compilation, there must be a collection and assembly of preexisting material, facts or data; selection, coordination, or arrangement (in other words, SAP) of those materials; and the creation, by virtue of the particular SAP, of an original work of authorship.

When considering whether a compilation is protectable, the issue is whether the SAP is sufficiently original to merit copyright protection. Originality, with respect to SAP, requires only that the author make the SAP independently, without copying it from another work, and that it display a minimal level of creativity. Therefore, originality will be lacking if the SAP is traditional or commonplace. For example, the arrangement of names, addresses, and telephone numbers in a residential telephone directory or a list of emails, blogs, or websites on a website arranged alphabetically is likely NOT copyrightable.

3. Publicly distribute the copyrighted work;

The public distribution right means the copyright owner has exclusive right to control the distribution of the copyrighted work by sale or other transfer of ownership, or by rental, lease, or lending. Essentially, this right is the right of the copyright owner to say when and how their works will be publicly distributed. Most importantly, this right provides a strong guarantee to the copyright owner that they are the only person with the right to make the first distribution of the work to the public.

As with all rights of the copyright holder, this right is subject to important exceptions, and, most importantly, it is not violated if you are making "Fair Use" of the entire or part of a work.

Remember, unless you have a good "Fair Use" argument or a license to use the work, an electronic transmission such as sending a file through email, posting on any website, allowing public download on a webpage controlled by you, likely constitutes a "distribution" under copyright law every bit as much as tangible, physical distribution of copyrighted works in the pre-internet era of distribution such as including CD's, video cassettes, books, etc.

Like all copyrights, there are limitations on this right, too. Under what is known as the First Sale Doctrine, while the owner of the copyright in a work is entitled to control the first public distribution of particular copies or phonorecords of the work, the subsequent owner of that particular copy or phonorecord is statutorily entitled, without authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. So, let's put that in plain English.

For example, a musician who creates a CD of original music is the copyright owner in that music(unless of course they have sold or given their rights away to a record company). Once he sells me a copy of that music on a CD, he has, as the copyright owner, exercised his distribution right to control the first public distribution of that music. Once I lawfully possess that copy of the CD, I have the right to do as I wish with that particular copy of the CD, including disposing of it or even re-selling it. However, don't be confused with my property right in that particular physical copy of the CD with copyrights in the music embodied in the CD. While I own the physical CD itself, I do not own any copyrights in the music. The musician(or more likely the record company) is still the copyright owner, and thus may still exercise his all his rights as such. So I have rights to the physical CD I have bought and any "Fair Use" rights that may apply.

****As a final note, however, keep in mind that the First Sale Doctrine applies only to copies that are lawfully made under the Copyright Act. The burden of proving whether a particular copy was lawfully made or acquired rests on the party who is accused of copyright infringement. The relevance of this final point can be seen by looking again at the example discussed above. If the musician accuses me of distributing copies of his CD without his authorization, the burden is on me to prove the copies I am selling have been lawfully made and that I have lawfully acquired them. If I cannot do so, then I am infringing on his distribution right. In another example, if I am selling MP3's of his music online, allowing buyers to download copies of it, the burden is on me to prove that I am not infringing upon his distribution right because I lawfully have the right to do so (for example, through a valid licensing agreement with the musician or under rights given by the musician under a creative commons license).

4. Publicly perform the copyrighted work;

The public performance right provides that for literary, musical and dramatic works, pantomimes and choreographic works, and motion pictures and other audiovisual works, the copyright owner has the exclusive right to perform the copyrighted work publicly. However, keep in mind that unlike a copyright owner's reproduction right, which is violated even when the reproduction is made for private purposes, the public performance right is not violated by a private performance.

So, what exactly does "publicly" mean? A performance is "public" if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. However, there are two things to keep in mind with regard to this definition of "publicly." First, "open to the public" does not mean there is a requirement that the public place be actually crowded with people. Thus, a place can still be a public one even though it is not crowded with people. And secondly, a "family" includes an individual living alone, so that a gathering confined to the individual's social acquaintances would normally be regarded as private.

"Publicly" includes not only performances that occur initially in a public place, but also acts that transmit or otherwise communicate a performance of the work to the public by means of any device or process. This would include, but of course not be limited to, such examples as the retransmission of captured broadcast signals to markets outside the broadcast's intended market, and filming of a professional sports event or concert from the stands and then transmitting it to a public place. The concept also likely applies to individuals involved in "webcasting" live on the internet.

If you are concerned with possibly violating a copyright owner's public performance right, and you don't think you have a reason to make Fair Use of a work, you may want to consider acquiring a mechanical/compulsory license, a public performance license, a digital audio transmission license, and/or a reproduction/distribution license.

5. Publicly display the copyrighted work;

The public display right is similar to the public performance right, as described above (link to above), and applies to all categories of copyrightable subject matter other than sound recordings and architectural works. The main difference, however, is this right controls the public "display" of a work as opposed to its performance.

So, what is a "display?" A "display" covers any showing of a "copy" of the work, either directly or by means of a film, slide, television image, or any other device or process. Thus, because displaying a work means showing a "copy" of it, the public display right extends to copies, but not to phonorecords. And as a "copy" is defined as including the material object in which the work is first fixed (such as the CD, videotape, etc.), the public display right applies to both original works of art as well as to reproductions of them. But with respect to motion pictures and audiovisual works specifically, it is a "display," rather than a "performance," to show their individual images non-sequentially.

So you can't take your DVD's from home and open up a cut-rate theater. Also while you can make a "fair use" of a work such as converting your favorite dvds to be playable as video files for personal use on your computer or portable media player, you can't then post these videos to a website for users to stream or download through the Internet.

However, as with all rights of the copyright holder, this right is subject to important exceptions, and, most importantly, it is not violated if you are making "Fair Use" of the entire or part of a work.

Like with the right of public performance, a display is "public" if it occurs at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Again, "open to the public" does not mean there is a requirement that the public place actually be crowded with people, and a "family" includes an individual living alone, so that a gathering confined to the individual's social acquaintances would normally be regarded as private. And like the public performance right, the public display right is not violated by a private display.

The public display right is where things get a bit more tricky, especially when viewed in light of the online world. So, for instance, while posting a copyrighted picture or photo up on your bedroom wall is not a violation of the copyright owner's public display right because the bedroom is not a "public" place, posting the same copyrighted work on your website is going to more problematic. As a copyright owner can only object to displays that are "public," there would be no infringement in the private display in the bedroom. However, courts have repeatedly held that postings on the internet are "public" displays. Keep in mind, though, that for the sake of simplicity, this example is ONLY considering the public display right, and the copyright owner's other rights are intentionally being ignored even though these other rights would most certainly be relevant here.

6. Digitally perform copyrighted sound recordings.

The digital performance right in sound recordings represents the general principle that unlicensed digital transmissions of sound recordings are prohibited unless the user[link to description of user as creator/user] has a good "Fair Use" argument, such as a legitimate sampling use of the sound recording, or a right to use the whole or part of the sound recording under a license. It is also important to keep in mind that in the digital environment, a single transmission of a sound recording may violate reproduction, distribution, and public performance rights of a copyright owner. However, you may generally insulate yourself from liability for digitally performing copyrighted sound recordings by obtaining the appropriate compulsory licenses or other license rights. That said, these rights are often difficult if not impossible to obtain.

 

III. How do you get a copyright?

A common misconception about copyrights is that there is a particular process involved with copyrighting materials. The reality is that you don't "get" a copyright; you either "have" a copyright or you don't. There is no particular procedure one must be engaged in, nor does one need to abide by a particular regulation in order to obtain a copyright.

Under section 102(a) of the Copyright Act, "Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." So, what exactly does this mean? Well, the two primary elements of this, "originality" and "fixation," are discussed in more detail below. But first, let's look at what "works of authorship" are.

What types of things are protected by copyright?

A short list of some of the obvious "stuff" that is protected includes books, paintings, songs on the album you just bought, a movie or video clip, a blog post, even your last email can be protected by copyright.

Works of Authorship:

  1. Literary works- books, newspaper articles, blog posts, even your last email
  2. Musical works-
  3. Dramatic works- plays, screenplays, TV scripts
  4. Choregraphic works- dances, ballets, mime performances
  5. Pictorial, graphic, and sculptural works- paintings, drawings, photographs, and illustrations you made for your website
  6. Motion Pictures and other audiovisual works- obviously this cover movies, but also live webcasts, video podcasts.
  7. Sound recordings
  8. Architetural works

1. Literary works;

The term "literary works," which does not connote any criterion of literary merit or qualitative value, is statutorily defined in section 101 of the Copyright Act as

"works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied."

Thus, literary works includes what would be traditionally thought of as "literature," such as novels, poems, stories, essays, etc., but also includes emails, blog posts, posts in Internet forums, and computer programs, as they are also works "expressed in words, numbers, or other verbal or numerical symbols or indicia." And as the examples provided in the definition of literary works is illustrative and not exhaustive, "literary works" has also been found to include catalogs, directories and similar factual, reference, or instructional works and compilations of data, computer databases, and computer programs (to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves), including operating systems, programs embedded on ROM (Read-Only Memory), and programs expressed in object code.

***Remember, while literary works may be protected, it is not a violation to make "Fair Use" of a literary work. For example, quoting a few sentences out of a blog post you read in your own blog post is NOT going to be a violation (note that sound samples are treated differently).

2. Musical works, including any accompanying words;

The term "musical works" is considered to have a fairly settled meaning, and includes both the instrumental component of the work as well as any accompanying words. Copyright of musical works can protect both the author and the performer. However, unlike other types of copyrighted works, musical works are subject to compulsory licensing under section 115 of the Copyright Act once they have been released to the public. This simply means that other artists can "cover" copyrighted songs as long as they pay the appropriate fees and follow the procedures of section 115 and original artist cannot deny the use of their music if the fees are paid. Notice how this is different from other copyright holders, such as a playwright, who can deny others the ability to perform, copy, distribute the play regardless of someone's willingness to pay for the right to use the play.

***Remember, while musical works may be protected, it is not a violation to make "Fair Use" of a musical work.

"Fixation" of musical works may be accomplished in various media, including written notation on paper, or electronic recording on audiotapes, CD's, or hard drives. For instance, the song you created and recorded into your mp3 player's mic is fixed. And "originality" (again, see below) of musical works may be satisfied through melody, harmony or rhythm, individually or in combination.

3. Dramatic works, including any accompanying words;

The term "dramatic works," like "musical works," includes things like plays, screenplays, and TV scripts. While music accompanying a dramatic work could be copyrighted separately as a musical work rather than under the dramatic works category, the script for a dramatic work could also be protected as a literary work, and a film dramatization of a screenplay is protected as a motion picture. Thus, this category illustrates how various categories of works of authorship may overlap one another.

***Remember, while dramatic works may be protected, it is not a violation to make "Fair Use" of a dramatic works.

4. Pantomimes and choreographic works;

Pantomimes and choreographic works includes ballets, dances, or mime performances. Fixation (see below) may be accomplished by making a videotape or movie of the performance, whether it be pantomime or choreography, or by using different forms of shorthand notation describing movements. And the originality requirement (see below) for choreography may consist of either original routines or original arrangements of preexisting routines. However, folk or social steps are not protectible. To be copyrighted, a choreographic work or pantomime must be described in sufficient detail to enable the work to be performed from that description

***Remember, while choreographic works may be protected, it is not a violation to make "Fair Use" of a choreographic work.

5. Pictorial, graphic, and sculptural works;

Pictorial, graphic, and sculptural works includes not only works of art in the traditional sense, such as paintings, drawings, prints and sculptures, but also works of graphic art and illustration, art reproductions, plans and drawings, photographs and reproductions of them, maps, charts, globes, and other cartographic works, works of these kinds intended for use in advertising and commerce, and works of "applied art." "Pictorial, graphic, and sculptural works," like literary works, can be protected regardless of artistic taste, aesthetic value, or intrinsic quality. Indeed everything from the Mona Lisa, to the photo you took on your last vacation, to the "button" graphic you created in Gimp for use on your website, can be protected.

This independence from the utilitarian aspects of the article (e.g., the lamp) is informed by whether the design elements can be identified as reflecting the designer's artistic judgment, exercised independently of functional influences. If the design elements of the article does reflect such independent, artistic judgment of the designer, then there is a conceptual separability, meaning that the artistic aspects of the article itself are protected under copyright as a pictorial, graphic, or sculptural work.

***Remember, while pictorial, graphic, sculptural works may be protected, it is not a violation to make "Fair Use" of a pictorial, graphic, or sculptural work.

6. Motion pictures and other audiovisual works;

"Audiovisual work," which motion pictures are a subcategory of, are defined as

"works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied."

With regard to the "series of related images" language, it is not necessary that the images be presented serially, i.e., sequentially, in a fixed, invariable order, as they are in a motion picture. Webcasts that you create explaining your website, or how to make and upload a video podcast. Even many works that are made up of simple geometric shapes are nonetheless copyrightable, if the selection or arrangement of such shapes & their interactions is distinctive.

***Remember, while motion pictures and audiovisual works may be protected, it is not a violation to make "Fair Use" of a motion picture or audiovisual work.

7. Sound recordings

"Sound recordings" are original works of authorship that result from the fixation of a series of musical, spoken, or other sounds that have been fixed in tangible form, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. The copyrightable work comprises the aggregation of sounds and not the tangible medium of fixation.

It is important to keep in mind that "sound recordings" and "musical works" are different, and each are separately copyrightable. A musical work includes the musical notes themselves, or rather, the melody and harmony, and also includes any accompanying lyrics as composed by the composer. A sound recording, however, is the "rendition" of the song embodied in the physical medium (the CD, tape, mp3, etc.), including the way the song is sung by the vocalist, played by the instrumentalists, arranged by the musical director, and mixed by the recording engineer (thus, it is the unique aggregate of sounds) on that particular recording. In other words, the vocalist, instrumentalists, musical director and engineer are the creators of a derivative work, and their expression is the sound recording, not the song itself, which is the composer's expression, and a separately copyrighted work.

Also, because a sound recording is a derivative work of the musical work being performed, it is subject to the normal copyright requirements of fixation in a tangible medium and originality. However, it is also subject to the statutory condition, per Section 103 of the Copyright Act, that the underlying material must have been used lawfully. Because of this additional requirement, unless the use of the sound recording is a "Fair Use" or you have a license to use the sound recording such as a creative commons license, the use of a sound recording will require a license from the copyright owner (musician or record company that owns the sound recording).

***Remember, while sound recordings may be protected, it is not a violation to make "Fair Use" of a sound recording.

8. Architectural works.

An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. Note that the definition has two components. The first is "what is protected," which is the design of a building. The second component specifies the material objects in which the architectural work may be embodied, such as a building itself, architectural plans, or drawings.

The term "design" includes the overall form as well as the arrangement and composition of spaces and elements in the design. The phrase "arrangement and composition of spaces and elements" recognizes that creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole(reminiscent of compilations).

For an architectural work to enjoy copyright protection, it must be determined whether there are original design elements present, including overall shape and interior architecture, and if so, whether the design elements are functionally required. If the design elements are not functionally required, the work is protectible.

***Remember, while architectural works may be protected, it is not a violation to make "Fair Use" of a architectural work.

***And also: A work might fit into more than one category above. For instance, if you have a scripted podcast where you wrote out the dialogue and then made an audio recording, the script itself might receive protection as a "literary" work and the podcast as a sound recording.

Fixation

What does it mean for a work of authorship to be fixed? Fixation is essentially a "physical rendering" of the fruits of an author's creativity, and is sufficient if the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. For example, a musical composer who has a particular arrangement of notes in his mind for a song has not satisfied the fixation requirement when the song exists only in his mind as an idea. But once the composer either writes down the musical notes or records the song(s), the song has been "fixed." In this example, the fruits of the author's creativity is the song, and the physical rendering is the piece of paper with the song written in notation format, or the tape/CD/mp3/computer file/etc, of the recorded song. Such a fixation here is sufficient because the song, now that it is either written or recorded, can be perceived by others(it can be listened to on an mp3 player, streamed through the internet, or in the case of written music, played by a musician), reproduced by others, and can either be communicated directly (such as reading the notation to another person) or with the aid of a machine or device (such as playing an mp3 on a computer or a CD on a CD player).

Thus, if you create something original that is copyrightable, and you "fix" it in some medium of expression by writing it, recording it, videotaping it, etc., then whatever you created is copyrighted as soon as it is "fixed." So, if you are writing an original story, the story itself is being copyrighted as you write it down or type it into your computer. Computer entry, even into the computer's temporary memory, is usually considered to be sufficient "fixation" for copyright purposes, especially when it is saved to a hard disk.

  1. Literary works- books, newspaper articles, blog posts, even your last email
  2. Musical works-
  3. Dramatic works- plays, screenplays, TV scripts
  4. Choregraphic works- dances, ballets, mime performances
  5. Pictorial, graphic, and sculptural works- paintings, drawings, photographs, and illustrations you made for your website
  6. Motion Pictures and other audiovisual works- obviously this cover movies, but also live webcasts, video podcasts.
  7. Sound recordings
  8. Architetural works

Originality:

To qualify for copyright protection, a work must be original to the author. This is actually quite a low bar to meet. The two aspects of originality are (1) independent creation by an author (as opposed to having been copied from other works), and (2) a very modest amount of creativity.

As to the first aspect, "independent creation," copyright protection can theoretically be had for something that is substantially similar or even an exact match, as long as the work is an "original" work of the secondary "author." Thus, if the New Media Rights project held a contest for people to write the coolest song lyrics for a song called "Ninjas vs. Pirates," and person X copyrights the song lyrics he enters into the contest, and then one month later person Y (whom has never seen or heard person X's song lyrics) writes the EXACT same lyrics, person Y's lyrics have been "independently created" by person Y and are thus still copyrightable. Thus, although Person Y's lyrics are not novel, they are technically "original."

****Remember: The nature of copyright is such that it does NOT preclude others from using the ideas or information revealed by the author's work, but rather it pertains to the literary, musical, graphic, or artistic form in which the author expressed intellectual concepts. One of the most fundamental concepts of copyright law is that copyright protects an author's expression of an idea, but not the idea itself. To illustrate, let's look at the roaring MGM lion which appears at the beginning of MGM movies and television shows as an example.

Although MGM can copyright the artistic expression of a roaring lion, encircled by certain graphics, it cannot copyright the "idea" of showing an animal encircled by graphics and making its natural animal noise, such as a dog barking, a cat meowing, a cow mooing, a rattlesnake shaking it's rattle and hissing, a pig oinking, etc.). Thus, you can see below the parodic logos of MTM Enterprises, Inc., and UCAN, in which Mimsie the cat meows and Max the Bulldog barks, respectively.

It is also important to keep in mind that originality may be satisfied not only by creating something from scratch, but also by selecting, arranging, and coordinating something in an original manner. For example, a historian cannot write a book and claim copyright over the facts, because as you will see below, facts are not copyrightable. However, it is the historian's selection, arrangement, and coordination of particular facts in his book that is copyrightable. Why? Well, if you think about it, this is perfectly in line with the intention of copyright: to provide protection of an author's expressions. Thus, the historian cannot copyright the facts of the Kennedy assassination, if that is his book's topic. However, he can get copyright over his selection, arrangement, coordination, and discussion of the facts involved in the assassination so that if anyone else copies his expression and discussion of those facts beyond "Fair Use," such as quotation in a criticism, etc., his work can be protected.

IV. What CAN'T be copyrighted?
Ideas (including procedures, processes, systems, methods of operation, concepts, principles, or discoveries), facts (including data), information in the public domain, works of the federal government, laws (including court decisions, statutes, cases, regulations, and constitutions), and URL's and domain names cannot be copyrighted.

Ideas (including procedures, processes, systems, methods of operation, concepts, principles, or discoveries):
As discussed above, copyright protection pertains to original expressions of an idea, but not ideas themselves. While the "expression" of a particular idea is copyrightable, for example, an article, journal, book, movie, etc., the idea itself is not copyrightable. Therefore, while the particular "expression" of an idea is copyrightable, others are free to discuss the same idea and create other "expressions" regarding that same particular idea; they just can't copy a substantial part of someone else's work in doing so. Here you might think of the general idea in Romeo and Juliet for instance as star-crossed lovers. Anyone can use that idea as the basis for a story, or podcast, or song.

The same thing applies to procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Keep in mind however, while these are not copyrightable, they may be patentable. But that is another story and another entire area of law. So, like ideas, while particular "expressions" of these processes, systems, methods of operation, concepts, principles, and discoveries may be copyrightable, the processes, systems, methods of operation, concepts, principles, and discoveries themselves may be freely reproduced by anyone without violating copyright law.

Facts (including data) and Information in the Public Domain:

Facts (including data) cannot be copyrighted because they are not originally created by any author. Although specific expressions of facts and data are copyrightable, the facts and data themselves are not copyrightable themselves because they are facts. Thus, the population of the United States is not a copyrightable fact, although a particular expression of this data in the form of a report or article is. Another simple illustration of facts not being copyrightable is the news. Although print, video and online expressions of news are copyrightable, the news itself is not copyrightable. This limits censorship, allows discussion and debate on blogs, and promotes public access to and the free exchange of, information.

Remember you can also make "Fair Use" of the news without permission as well.

Information in the public domain is also not copyrightable. But what does "public domain" mean? Public domain is, with respect to copyright law, a status of works of authorship that are not protected under copyright because either the copyright has expired or never had such protection. Works in the public domain may be freely copied in whole or in part.

Works of the federal government:

Works of the United States government are not copyrightable, and include reports, memos, documents, rules, agency publications, etc. Such works may be freely copied in whole or in part, and may even be repackaged and sold. Individual State governments, however, are not prohibited from copyrighting their works, so check the state government's website terms and conditions or Ask Us and we'll try to take a look for you. States usually do not assert copyrights, as a practical matter, although computer software and other high-cost proprietary items may be the exception.

Laws (including court decisions, statutes, cases, regulations, and constitutions):

Court decisions, statutes, cases, regulations, and constitutions are not copyrightable as courts have repeatedly held that such works are in the public domain. [Check DMCA for unlawfully obtained]

URL's and Domain Names:

A URL, or Uniform Resource Locator, is an internet address (http://www.ucan.org/telecommunications/home), usually consisting of the access protocol (http), the domain name (www.ucan.org), and optionally the path to a file or resource residing on that server (telecommunications/home). Essentially, URL's are factual information because they are just addresses, like street addresses of a building, which are open to the public and used for locating buildings. And as one of the primary principles of copyright law is the non-copyrightability of facts due to a lack of originality, there is nothing sufficiently original to make a URL copyrightable.

 

V. How long do copyrights last?

Generally speaking, the duration of copyright protection is dependant upon when the work was created. See below for a quick reference guide to how long copyrights last for works created or published in the past. After checking the chart, if you still have questions, Ask Us!

Date work is created or published: Protected from the date of: Term of protection:

  • Created (regardless of whether it's published or not) after 1/1/78 When the work is fixed in a tangible medium of expression Life of author + 70 years (or if it's a work of a corporate author or an anonymous author, 95 years from publication or 120 years from creation, whichever is less).
  • Published between 1963 and 1977 When the work was published with "notice" (see below to learn what "notice" is) 28 years from first term; automatic extension of 67 years for 2nd term.
  • Published between 1923 and 1963 When the work was published with notice (see below to learn what "notice" is) 28 years for 1st term; could be renewed for 67 years; if not so renewed, now in public domain.
  • Created before 1/1/78, but not yet published 1/1/78, the effective date of the 1976 Copyright Act which eliminated common law copyright protection Life of author + 70 years, or at least until 2003 if the work remains unpublished. If the work is published by 2003, term expires in 2048.
  • Sound recordings created prior to 2/15/72 Depends upon treatment under applicable state law. §301(c).

"Notice":

What is "notice?" Notice of copyright means informing the public, or putting the public on notice, that the work is protected by copyright. It also identifies the copyright owner and the year of first publication. Although the use of copyright notice is no longer required under United States copyright law, it is still a very relevant and important issue in copyright law. Its relevancy is due in large part, but not limited to, the fact that notice of copyright prevents an alleged copyright infringer from asserting innocent infringement as a defense.

To give notice, neither advance permission from, nor registration with, the United States Copyright Office is required. However, recordation with the Copyright Office is statutorily considered as constructive notice to all of the facts stated in the recorded document regarding the copyright of the particular work recorded.

With respect to the form of notice for visually perceptible copies, copyright notices should be affixed to copies in such a way as to give reasonable notice of the claim of copyright, and the notice should contain each of the following, appearing together on the copies or container:

  1. The symbol © (the letter C in a circle), or the word "Copyright";
  2. The year of first publication of the work; and
  3. The name of the copyright owner, in the work, or an abbreviation by which the name can be recognized.

An example of the three elements of copyright notice, above, is: © 2002 Jane Do

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Comments

Don't be a Victim

This is a valuable post and anyone posting imagery or other copyrighted items on their websites should read this in detail. With the avalibility of information at everyones finger tips these days it is tempting to simply save an image to your desktop and reuse for your website (that recycling right?) but as you clearly point out above this is only ok once you have explored the copyright and it is allowed. I have seen a number of horror stories in recent months about small blog owners in particular being sued for using images on their sites which are copyrighted - don't think it won't happen to you!

So right

The guy above is talking some sense. I have seen some really nasty stories of people being fined up to 10k for using images without permission on websites. The best tack to take with this is to not use them unless you have written permission from the owner - its that simple and I for one would not even contemplate using copyrighted images period.

Domain Name Copyright?

I wasn't aware of the 'idea' concept and how this is effected (or not as the case maybe) in relation to copyright. The fact that methods of operation, concepts, principles, and discoveries cannot be corpyrighted is something new to me. I do think your reference to 'URL's and domain names cannot be copyrighted' needs further clarification though, I was under the assumption that domain names can be copyrighted?

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