Copyright Concepts

This article is meant to give the reader a general understanding of a handful of important copyright concepts, but not all of them. This article is not meant to be legal advice and should not be taken as such. If you have questions related to protecting your work, reach out to my office at, [email protected], or call (424) 202-4239

The purpose of copyright law

The purpose of copyright law is to promote art and culture by granting certain rights to authors who contribute to art and culture. In the simplest terms, copyright law allows authors to retain ownership of their work and profit from it. Making it easy for authors to reap the rewards of their work, incentivizes more authors to write, thereby furthering art and culture. If it was too difficult for authors to take credit for their work and make money from their work, less people would become authors. 

What qualifies under copyright protection?  

The requirements for copyright protection according to 17 U.S. Code § 102 is to "protect original works of authorship fixed in any tangible medium of expression”. 

An “original work of authorship” means that the work was independently created (not ripped off someone else's work) and contains a minimum degree of creativity (ex. arrangement, lighting, angles, etc.). The following list of works fall under copyright protection: (1) literary works, (2) musical works, (3) dramatic works, (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. 

“Fixed in any tangible medium of expression” means that a work is in a sufficiently permanent or stable state. The work should be attached to a physical object and static over time. Physical object is simple enough (think book, paper, or disc) but static over time is a looser concept. Static over time can be thought of as static elements like a movie that repeats itself over and over or even a video game that has the same elements that repeat themselves but can play out differently depending on the video game player. The word “expression” is meant to point out that actual written works are protected under copyright law, but not the idea. For example, the script for Groundhog Day is protected under copyright law but not the idea for a movie plot where someone relives the same day over and over (ex. Happy Death Day, Palm Springs, and Source Code). 

How long does copyright protection last?

Copyright protection lasts for the life of the author plus another 70 years. However, if the author is a corporation (ex. an author who writes something while working for a corporation within his scope of employment), then the copyright lasts the shorter of 95 years from the day the work was published or 120 years from the day the work was created.  

When is a work protectable under copyright protection?

The written work is technically protected from the moment it is put in a fixed tangible form. However, for maximum protection the author should register the work with the U.S. copyright office. 

What about works made for hire?

Works made for hire are works prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned for use as a contribution to a collective work. When a work is a work made for hire, the employer or person who commissioned the work is the owner of the copyright, not the creator. For example, if a screenwriter is hired by a producer to write a script as a work for hire, then the producer owns the script, not the screenwriter. 

Defenses to copyright infringement

The most common defenses to copyright infringement are (1) fair use, (2) parody, satire, and jokes, and (3) public domain.

Fair use allows copyright infringement depending on: 

(a) The purpose and character of the use, including if the use is commercial in nature or for nonprofit educational purposes. Commercial in nature leans towards infringement while nonprofit educational purposes lean toward fair use. 

(b) The nature of the copyrightable work. If the work is a poem, book, or film which is at the core of copyright law, then it's less likely that that infringement is defendable under fair use vs. a compilation of facts which probably falls under fair use because facts are not ideas. 

(c) The amount and substantiality of the portion used in relation to the copyrightable work as a whole. Was the part used the essence of a book or was it just a small excerpt?

(d). The effect of the use upon the potential market or value of the copyrightable work. Did the impact of the infringement hurt the value of the copyrightable work? For example, copying a book and selling it for less than the real thing hurts the value of the work. 

Parody, satire, and jokes are all a little different. Parodies comment directly on a copyrightable work, therefore are pretty liberal with what they take from the original work. Satires, comment on an aspect of society, therefore are also liberal with whatever it takes from the original work. The issues with jokes are more about whether the personal rights of the person who the joke is about had any personal rights infringed on such as the right of privacy, the right not to be defamed, and the right not to be put in a false light.  

Copyrightable works fall into the public domain when they are (1) facts or events because facts or events cannot be owned, (2) the copyright has expired on the work, (3) a technical flaw, (4) works created by employees of the US government as part of their job, or (5) if the copyright owner abandons the work through a clear, unequivocal, affirmative act.

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