By Steven Winogradsky
The first topic we’re going to tackle is the subject of copyright. The Copyright Act (Title 17, United States Code) protects works of authorship in any tangible medium of expression. It is important to note that ideas are not protectable, only the expression of those ideas. Under this law, creators of (among other things) books, theatrical works, computer programs, motion pictures, music, lyrics, choreography, works of art and recordings are granted certain exclusive rights to these works.
Copyrights, along with patents and trademarks, are sometimes also called “intellectual property”. While some may debate the “intellectual” qualities of some forms of expression, such as recordings by The Spice Girls or the motion picture “Beavis & Butthead Do America”, the key concept is one of a property right. Like other kinds of property, such as real property and personal property, the owner has certain rights in how the work is utilized. It may also be sold or licensed to third parties.
Let’s look at copyright from a historical perspective. In medieval times, through the Renaissance, creative persons such as composers, playwrights, authors and artists, were supported by the state, the church or privately by wealthy patrons. As such, their works were made available to the public without cost since the needs of the artists were taken care of. With the demise of the ruling and the wealthy classes, certain limited rights were granted to these creators so as to encourage and reward them to continue their artistic endeavors. These rights gave the creators a property interest in their work so that they could sell or license it for reproduction.
In 1710, the British Parliament passed “The Statute of Anne”, which provided the right to prevent the copying of “writings” for 14 years (renewable for another 14 years), vested in authors and their assigns. French laws of 1791 and 1793 encompassed other works of “fine art”, granting authors rights to control the copying, distribution and sale of their works plus a fixed term of rights after each author’s death.
Article I, Section 8 of the United States Constitution states, “The Congress shall have 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.” It is these rights that are contained in the current Copyright Act.
Section 106 of The Copyright Act of 1976 (the “Act”), which took effect January 1, 1978, grants to copyright owners the exclusive rights to do and to authorize any of the following:
1. To reproduce the copyrighted work in copies or phonorecords (audio-only devices, such as records, compact discs or audio cassettes);
2. To prepare derivative works based upon the copyrighted work, such as converting a book into a movie;
3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;
4. In the case of literary, musical, dramatic, and choreographed works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly. The performance may be live, by broadcast or over loudspeaker in a public place (store, museum, etc.). “Public” is defined as persons outside of your family or immediate circle of acquaintances;
5. In the case of literary, musical, dramatic, and choreographed works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture and other audiovisual works, to exhibit the copyrighted work publicly.
There are some exceptions to these exclusive rights, such as reproduction by libraries and archives, educational and religious uses, fair use and parody. Each of these is defined (more or less precisely) by the Act and by the cases brought involving each exception.
But what do these rights really mean? It means that any person wishing to use a copyrighted work must secure the permission of the copyright owner and negotiate a fee for the use intended. Determining who is the owner of the copyright is not always that easy. As a property right, copyrights can be bought and sold, therefore the ownership may change hands many times over the years. There may be multiple owners, each of whom may need to be contacted. Some agreements between co-owners allow for one controlling party to administer the entire copyright. Others require separate administration by each party for their respective shares.
With one exception, permission and fees for the use of a copyright are totally negotiable. That exception is the statutory mechanical rate for phonorecords based upon the compulsory license (this will be discussed in more detail in a future column). Use without permission and negotiation with all relevant parties is infringement and can subject the offender to both monetary damages and an injunction against further distribution.
How long does copyright protection last? The rights discussed above are granted to the copyright owner for a limited time. After the expiration of that time, the work falls into the “public domain”, which means that anyone can use or copy the work without permission or payment.
Under the 1976 Act ( and subsequently amended in 1998), works created after 1978 are protected for the life of the author plus 70 years. If there is more than one author, the term is 70 years after the death of the last surviving author.
The term for a “work made for hire” is 95 years from date of publication or 120 years from creation, whichever comes first. A “work made for hire” is a work prepared by an employee within the scope of his employment or a work specially ordered or commissioned for use as contribution to a collective work, such as a motion picture. For copyright purposes, the employer is considered the “author” of work.
The terms of copyright in foreign territories vary, although they are based upon the “life plus X years” concept. In the European community, the term is generally life of the author plus 70 years. In other territories, it may extend to life plus 99 years. Because of these different terms, a work could go into the public domain in the United States and still be protected in foreign territories.
Under the current Act, copyright protection exists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced or otherwise communicated. This means that a song that is sung, but not recorded or written down, is not protected. Registration is not required for protection, but failure to register precludes collecting any damages for infringement. Subject to certain exceptions, statutory damages and attorney’s fees are also not available for infringement prior to registration.
The so-called “poor man’s copyright”, where you mail a sealed copy to yourself and never open it, is of limited value. While it does establish the date of the postmark as proof of the date of creation, it is not a substitute for proper registration.
As copyright is the foundation of how all works are controlled and how artists get paid, this should provide you with some of the basics for the topics to be discussed in this space. I look forward to writing future columns – I hope you look forward to reading them.