Copyrights

What is a Copyright?
A copyright is a legal protection provided to the authors of "original works of authorship." A copyright exists for ALL original works even if the work has NOT been published NOR registered with the copyright office. Unlike patents, copyrights come into being at the moment an original work is fixed in a tangible medium of expression. Federal registration of a copyright makes it easier to defend yourself against infringement, but no registration is required in order for a copyright to exist. Also, no registration is required for an author to begin using the familiar copyright symbol --- ©.

Despite the fact that originality is indeed the basis of a copyright, copyright protection doesn't apply until the original works of authorship is also fixed in a tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. In other words, if I create an original impromptu poem in a coffee bar, I will not have copyright protection until the poem is is actually written down on paper or recorded on tape.

This is true because a copyright protects only the form of expression rather than the subject matter of the writing. Ideas are not protected by copyright law because protecting an idea would take the idea out of the public domain and would prevent others from using the idea to create their own independent and original works of authorship.

I recommend reading The Copyright Handbook by Stephen Fishman as an excellent source for more detailed information on copyrights.

What Can Be Copyrighted?
Works of authorship for which copyright protection is available includes

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works.

What Are the Copyright Owner's Exclusive Rights?
The owner of a copyright has what is referred to as a bundle of exclusive rights. The exclusive rights of the copyright owner allow the owner to do and/or to authorize any of the following

• Reproduction of the copyrighted work in copies or recorded media
• Preparation of derivative works based upon the copyrighted work
• Distribution of copies or recorded media of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• Control whether literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works can be performed publicly
• Control whether, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work can be displayed publicly
• Control whether sound recordings can be distributed by digital audio transmission

The fact that the copyright owner enjoys "exclusive rights" should not be understood to mean that only the copyright owner may engage in the listed activities (i.e., copying, distributing, performing, etc.). The right of the copyright owner is exclusive in nature, but far from absolute. This is true because of what is called "fair use."

What is Fair Use?
Fair use is a very murky area of the copyright law that provides specific exemptions for copyright infringement. The Copyright Act allows for copyright works to be used, and for such use not to be considered infringement, for purposes such as criticism, comment, news reporting, teaching, scholarship, and/or research, so long as the work is "fairly used." Courts must consider four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work

Keep in mind that Fair Use is only used as an affirmative defense AFTER a claim of copyright infringement is lodged. There are no explicit guidelines and any time you use someone else's original work without permission, you risk being prosecuted for copyright infringement.

For example, the courts have ruled that an individual can copy an entire song or movie for their own use, but cannot mass produce it for free distribution or sale. The courts have also held held that academic uses that are educational and that are not commercial in nature, or commercial by disguise, are most likely going to be considered fair uses provided that there is not an adverse effect on the potential market for the work in question.

But, be certain that you understand that the extent of permissible copying will vary with the purpose and character of the use. So, the best rule of thumb is that if you are using copyright material without permission you should not be making money from it and you should not use enough of the work that it is unnecessary for others to purchase the work in question.

What is seems to come down to is - if the owner loses money as the result of your actions, you are infringing on their copyright and are subject to being sued for damages.

How Long Does a Copyright Last?
If the work was created after January 1, 1978, and was not done for hire, the copyright protection will last for 70 years after the death of the author or the last author in the case of joint authorship. Works done for hire are protected for 95 years from the date of publishing with a copyright symbol or the date of register.

Works created prior to January 1, 1978 have varying terms. Consult The Copyright Handbook by Stephen Fishman for further information.

Exactly What is Copyright Infringement?
The second work must only be "substantially similar" to the copyrighted work. To determine whether a work is "substantial similarity" to the copyrighted work it is necessary to ask whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. Moreover, it is recognized that the copying need not be of every detail so long as the overall copy is substantially similar to the copyrighted work.

Rule of thumb - if you want to use someone else's material, get permission.

For further information on copyright law and how it really is being used in the world of electronic publishing I recommend reading The Copyright Handbook by Stephen Fishman.

Additionally I recommend reading Getting Permission: How to License and Clear Copyrighted Materials Online and Off by Richard Stim for a comprehensive look at how to get permission to use copyrighted material and avoid lawsuits.

For a guide to creative works that are in the public domain, which can be copied without the worry of copyright infringement and without the need to pay fees, I recommend reading The Public Domain by Stephen Fishman.