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Note: This is a general summary for informational purposes only. If you have a real life question or dispute relating to copyright, you should contact an intellectual property lawyer!
Copyright protection is given to:
Traditionally, a work's artistic quality was irrelevant to whether it could be copyrighted. Beginning with Oliver Wendell Holmes in Bleistein v. Donaldson Lithographing Co., judges have taken a position of neutrality as to the content of the work.
Since Feist Publications, Inc. v. Rural Telephone Co., Inc., the courts have interpreted "original" to require a minimal degree of creativity. It held that an alphabetized telephone directory was not creative enough to be copyrightable.
"Original" however does not have to mean new or novel. It is enough that the author comes up with the creation independently. A famous example given by Judge Learned Hand is "if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's."
Finally, copyright protection is only given to "expressions" and not abstract ideas or facts. This distinction, however, is not always clear. On the one hand the law doesn't want to protect only the exact words of a work, allowing a plagiarist to get away with copying by making minor changes. On the other hand, it doesn't want to protect broad themes or plots or generic characters because to do so would limit the ability of future authors to create their works. Judges have to decide close calls on a case by case basis. Generally, the more specific or original the creation, the better the chance that it will get copyright protection.
Ownership
Usually the creator of the work owns the copyright.
However when the creator is an employee working within the scope of his or her employment, the work is considered a "work for hire" and the employer gets the copyright. Courts use several factors to determine whether a given work is a work for hire. See CCNV v. Reid.
Occasionally, more than one person will contribute to the creation of a work. If the contributions have been merged into an interdependent whole, each contribution is separately copyrightable, and the parties intend to be co-authors, the work will be considered a "joint work." All authors of a joint work are full owners of the copyright and can exercise the exclusive rights of copyright holders (see below).
Copyright Rights
Copyright protection gives the copyright holder these exclusive rights:
Fair Use
Copyright law includes a built in defense for socially beneficial uses of works which would otherwise be copyright infringement. The statute specifically names criticism, reporting, scholarship, research, and teaching as 'fair uses' which do not constitute infringement.
Courts determine whether a use is "fair use" on a case by case basis by applying four factors:
Some generalizations
Copyright in the United States is federal law and can be found in Title 17 of the United States Code.
Subject Matter
1. reproduction
2. making derivative works
Derivative works are original creations which incorporate, transform, or adapt copyrighted works. Only the holder of a copyright can make a DW based on the copyrighted work.
3. public distribution
First sale doctrine - once a copyrighted work is sold, its new owner is free to resell it or rent it out. This is what allows movie rental stores to exist.
Exception to 1st sale doctrine for sound recordings
4. public performance
5. public display
Exception - owner may display work to others on site. Allows private art museums to exist.
1. purpose and character of the use
2. nature of the copyrighted material
3. amount and substantiality of the portion of copyrighted material used
4. effect of the use on the potential market for the copyrighted work
Parody will usually be considered fair use. See Campbell v. Acuff Rose (2Live Crew's version of Roy Orbison's "Pretty Woman" was fair use).
Uses which significantly affect the potential market are usually infringement. See Harper & Row v. Nation Enterprises. (The Nation's printing of portions of Gerald Ford's soon-to-be-published biography which dealt with his pardon of Nixon was infringement.)
| Last modified April 11, 1999. | Berkman Center for Internet & Society |