Copyright 101: What it is and how it works
On August 18th 1787, Founding Father and fourth President of the United States James Madison submitted a new provision to the framers of the U.S. Constitution. The proposal was intended “to secure to literary authors their copyrights for a limited time”, and led to the first federal bill on copyrights. On May 31st 1790, the new U.S. Constitution enacted the nation’s first copyright law, setting a 14 year protection period with the option to renew for a further 14 years. Article 1, Section 8.8. Specifically endowed Congress with the 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.” Copyright protection, under the mention of science (surprisingly useful arts referred to patent protection on inventions!), originally extended only to books, maps, and charts. However, this was soon expanded to printed works, musical and dramatic compositions, and motion pictures.
Characterization of Copyright:
At its most fundamental, copyright is a form of intellectual property that protects your creative expression. Copyright registrations can extend to sound recordings, source and object codes, movies, books, and even buildings. As a result, artists of all types can gain protection through copyright, while some creations, such as jingles, are subject to both copyright and trademark protection.
However, unlike patents and trademarks, copyrights are not specific to a specific object or distinctive feature. Rather, copyright protects effectively anything, published or unpublished, that is “fixed in a tangible medium of expression.” This latter aspect is crucial, because if the work of authorship is not tangibly fixed or recorded, copyright cannot be granted. The lesson: WRITE IT DOWN!
Even in situations where creativity is tangibly fixed on some medium, the right to sue for infringement of that copyright is only granted if that copyright is subsequently registered. This is important because damages for infringement can only be collected for infringement on registered copyrights. Of course, if a copyright holder chooses not to register, they can still request DMCA takedowns and issue cease-and-desist notices.
Timeline:
A copyright registration takes between fourteen and twenty months to reach completion. Usually, this process is initiated by a copyright application, followed by a response from the US Copyright Office, which will determine whether the copyright registration will be granted. As with patents, copyright registration is separated into various categories, such as Literary copyright. Generally, this does not change the application timeline.
Once registered, a well-maintained copyright will protect authorship for the full life of the author plus an additional seventy years. This period was previously only 28 years, but the relentless protection of Walt Disney’s “Steamboat Willie” has led to successive extensions of this period. Created in 1928, Disney’s first iteration of their world-famous Mickey Mouse character was originally protected until 1984. However, as that deadline approached, Disney reportedly lobbied Congress to overhaul the Copyright Act of 1909. They succeeded twice, first in 1976 and again in 1989 when the Sonny Bono Copyright Term Extension Act introduced the current (Life + 70) time frame. With Mickey’s copyright set to expire in 2023, we may soon be looking at another change prompted by the Disney Clubhouse!
Work Made for Hire:
In copyright law, the author of the material is the original copyright owner. This is the case unless the work is designated as “work made for hire.” This term indicates that the commissioning party (the party that hired the true author of the work) is the legal owner of copyright on the work, not the actual creator (the true author). Work made for hire may include work completed by an employee within the scope of their employment, or alternatively work made specifically for commission. In this latter case, the work must either be a contribution to a wider collective work or must be the subject of a signed agreement verifying the relationship between commissioning party and true author.
Affirmative Defenses:
There are a number of affirmative defenses to copyright infringement in US intellectual property law. The most commonly invoked, and probably most commonly misunderstood, is the principle of fair use. The principle is codified at 17 U.S.C. § 107 which states that “the fair use of a copyrighted work… is not an infringement of copyright” based on a case-by-case assessment of four factors related to the use of the copyrighted material. The four factors are as follows:
● Purpose and character of use, including whether the use is of commercial nature or is for nonprofit educational purposes: The purpose and character of use intended for the new work are important considerations that are weighed up against the remaining three points. In general, nonprofit educational and noncommercial uses are more likely to qualify for fair use.
● Nature of the copyrighted work: The type of copyrighted work that is used will also be considered in infringement cases. An unpublished work or more creative work such as a novel or song will be less commonly considered for fair use than a work of nonfiction.
● Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Both the quantity and quality of the copyrighted material is considered when determining fair use. However, there is no hard-and-fast rule on this; a smaller use can just as easily be found to be infringing as the use of an entire work under certain circumstances.
● Effect of the use upon the potential market for or value of the copyrighted work: Finally, the degree to which unlicensed use damages the existing or future value of the original work is considered. This takes into account any loss in the existing or potential market for the original good, were the infringing version to become widespread.
Parodies of existing work are not automatically protected by fair use, as they can technically be considered derivative work and thus within the exclusive rights of the original author. As per the Supreme Court, a parody “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Whether a derivative work meets this definition depends on the specific interpretation of the facts in each case. It will often depend on the degree to which the infringing work is transformative, in that they add something novel with the purpose of differentiating the new work.
An alternative defense from copyright infringement is independent creation. This point implies that two authors may have been able to reach the same, or similar, creative conclusions without one having necessarily infringed on the ideas of the other. In such a case, it can be difficult to establish lack of knowledge.
We at MG Miller hope that this brief introduction to copyright has helped improve your understanding of this vital component of Intellectual Property Law. Armed with this knowledge, we wish you the best in your innovative and creative endeavors.
Own your ideas. Protect your creations.