Copyright Basics

Below I review some basic information about copyright and the creation and ownership of copyright protection.  This protection is available to both published and unpublished works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

1. Reproduce the work in copies or phonorecords
2. Prepare derivative works based upon the work
3. Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
4. Perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
5. Display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
6. Perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. One major limitation is the doctrine of “fair use,” which has a statutory basis in the Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.

Copyright protection subsists from the time the work is created in a tangible medium, or in a fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is considered to be the author. A “work made for hire” is defined as:

1.  A work prepared by an employee within the scope of his or her employment; or
2. A work specially ordered or commissioned for use as:
   • A contribution to a collective work
   • A part of a motion picture or other audiovisual work
   • A translation
   • A supplementary work
   • A compilation
   • An instructional text
   • A test
   • Answer material for a test
   • An atlas

If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

1. Literary works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works

These categories are broadly inclusive. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”  There are limitations in subject matter, however. Several categories of material are generally not eligible for federal copyright protection. These include, among others:

• Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
• Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
• Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
• Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)