Copyright Basics
By Betsy Rosenblatt, Harvard Law School
Last Modified: March, 1998
COPYRIGHT
What is copyright protection?
What sources of law govern copyright in the U.S.?
What may be copyrighted?
Who may hold a copyright?
What constitutes copyright infringement?
What defenses are there to copyright infringement?
Copyright
What is copyright protection?
A copyright protects a literary, musical, dramatic, choreographic, pictoral
or graphic, audiovisual, or architectural work, or a sound recording, from
being reproduced without the permision of the copyright owner. 17
U.S.C. §102. The copyright in a work vests originally in the author(s)
of the work. The author(s) may transfer the copyright to any other party
if she(they) choose(s) to do so. 17
U.S.C. §201. Subject to certain limitations, the owner of a copyright
has the sole right to authorize reproduction of the work, creation of a
work derived from the work, distribution of copies of the work, or public
performance or display of the work. 17
U.S.C. §106. This right lasts for the life of the author plus fifty
years; or in the case of a copyright held by an entity, for seventy-five
years. 17
U.S.C. §302.
What sources of law govern copyright in the
U.S.?
Copyright Law in the U.S. is governed by 17 U.S.C. §§ 101-1101,
commonly known as the Copyright Act, as interpreted by court decisions.
What may be copyrighted?
In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods
of operation, concepts, principles, or discoveries: they only protect physical
representations. 17
U.S.C. § 102(b). Anything unrecorded is not copyrightable, in as
much as it is not "fixed;" for example, dances and improvisations
themselves are not copyrightable: only visual recordings or written descriptions
of them are. Say I go to a jazz concert and listen to a soloist's improvisation.
If I have the musical equivalent of a photgraphic memory, I may be able
to reproduce that improvised solo in my own concert on the following night.
If that solo exists nowhere but my memory (i.e. the original concert was
not recorded) I may play it with impunity, because it is not "fixed"
and therefore not copyrightable. But, if the original concert was recorded
(e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred
from playing my version of the solo. Even a bootleg recording (for which
the recorder can be punished under section 1101 of the copyright act) qualifies
for copyright protection: a work need not be formally published in order
to be "fixed;" it need only be saved in a tangible form. 17
U.S.C. § 104.
The originality requirement of 17
U.S.C. §102 demands that a work, in order to be copyrigted, be
independently created by the author. In order to be original, a work need
not necessarily have novelty, artistic merit, truth, or lawful content.
For example, a replica of a painting in the public domain may not be novel,
but it is copyrightable. An item of sculpture designed to be used as a pipe
for smoking marijuana may not be designed for legal ends, but it is copyrightable.
A false biography is copyrightable, although it may well also be cause for
defamation litigation.
Who may hold a copyright?
A copyright ordinarily vests in the creator or creators of a work (known
as the author(s)), and is inherited as ordinary property. Copyrights are
freely transferrable as property, at the discretion of the owner. 17
U.S.C. §201(a), (d). In some cases, however, the actual creator
is not considered the author of the work for copyright purposes: if a work
is created by an employee in the regular course of her employment, it is
considered a "work for hire" and the employer, not the employee,
is considered the "author" of the work for copyright purposes.
For example, in the absence of an agreement to the contrary, a staff writer
for a newspaper does not hold the copyrights in her product, the newspaper
does. This only applies to works created in the ordinary course of employment:
if the same reporter writes a novel in her spare time, she herself owns
that copyright.
Certain commissioned works may also be considered works for hire. 17
U.S.C. §201(b); Community
for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work
for hire" is defined in 17 U.S.C. §101.
What constitutes copyright infringement?
Subject to certain defenses, it is copyright infringement for someone other
than the author to do the following without the author's permission:
1. copy or reproduce the work
2. create a new work derived from the original work (for example, by translating
the work into a new language, by copying and distorting the image, or by
transferring the work into a new medium of expression)
3. sell or give away the work, or a copy of the work, for the first time
(but once the author has done so, the right to sell or give away the item
is transferred to the new owner. This is known as the "first sale"
doctrine: once a copyright owner has sold or given away the work or a copy
of it, the recipient or purchaser may do as she pleases with what she posesses.)
17 U.S.C. §109(a).
4. perform or display the work in public (this right does not apply to visual
art) without permission from the copyright owner. 17
U.S.C. §106. It is also copyright infringement to violate the "moral
rights" of an author as defined by 17
U.S.C. 106A. Moral rights are discussed at
this location.
What defenses are there to copyright infringement?
The primary defense to copyright infringement is "fair use." 17
U.S.C. §107. The fair use doctrine allows the reproduction and
use of work, notwithstanding the rightsof the author (17
U.S.C. §§ 106 and 106A),
for limited purposes such as criticism, comment, news reporting, teaching,
scholarship, and research. Fair use may be described as the privilege to
use the copyrighted material in a reasonable manner without the owner's
consent. In deciding whether a copier's actions were fair, judges will consider
1. the purpose and character of the copying (certain types of educational
copying is allowed)
2. the nature of the original (originals made for commercial reasons are
less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy
the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original
(copying may be permitted if it is unlikely to cause economic harm the original
author).
Examples of activities that may be excused as fair use include: distributing
copies of a section of an article in class for educational purposes; providing
a quotation in a book review; and imitating a work for the purpose of parody
or social commentary.