COPYRIGHT LAW

Many people think U.S. copyright law was created just to protect those who hold the rights to articles, books, music, software and other intellectual properties. However, the law's purpose is mainly to encourage creativity in the arts, science and industry. It does this by offering financial incentive to creators.

1. What is intellectual property?

Intellectual property is a legal concept under which we manage the protection and use of products of the human mind (as opposed to the human hand). The U.S. Constitution and the "Federalist Papers" refer specifically to patents (which apply to "useful articles", traditionally inventions) and copyright (which applies to "literary expressions", traditionally books and articles) as comprising the scope of intellectual property. There have also been some more recent additions: Outside of patents and copyrights, there are such things as trademarks and service marks (like "Coca Cola"), "trade dress" (a more amorphous concept involving the "look" of a product, like Coca Cola's red & white can with a script logo), "trade secrets", and others. All of these separate areas of the law and commerce have been collected under the general term "intellectual property". However, they are very different from each other and are meant to protect different things.

2. Is copyright law the same for words, pictures, movies, music and software?

Yes, for the most part. Sure, it's easy to download and reproduce materials that you might find on the Web, but that doesn't make it lawful. Technically speaking, copyright law does deal differently with various media like music and software. However, these differences tend to be largely technical, and they are outweighed by the similarities in the law's application.

3. Is it hard to get a copyright?

No, it's easy. Under U.S. law, anything original and creative, even your diary, memos, and personal correspondence, is protected by copyright. This protection is automatic, from the moment you create something, whether on paper or electronically. So, why bother to register your copyright with the federal government? Well, for one thing, it makes you eligible to receive "statutory damages" which could reach as high as $100,000 per infringement.

4. Do I need a copyright notice to protect my work (writings, art, music, etc.)?

Not at all. Copyright notices stopped being mandatory in this country in 1989 when the U.S. joined the Berne Convention. Still, using a notice is a good idea. That way, you put others on notice that you consider a work to be your property, and that nobody should use it without your permission. The correct form for a copyright notice is "Copyright [year of creation] by [author/owner]". That's it! Many people use the C-in-a-circle symbol instead of the word "Copyright". Any copyright notice should be in the correct owner's name.

5. If I see something and it does not have a copyright notice, does that automatically mean I can use it?

No. A copyright notice is not required to have copyright protection. It is true that many things are not protected by copyright. However, it is a good practice to analyze any work that has no copyright notice, and determine whether it is likely to be protected by copyright.

6. If I use somebody's work without permission but give credit to the author or publisher, am I still infringing on copyright?

Probably. Giving credit is great, but nothing in the copyright law says that it somehow absolves you of infringement. If you are infringing, giving credit won't help you!

7. Am I infringing on copyright even if I don't make money from using somebody else's material?

Probably. Nothing in the copyright law says that not making money absolves you of infringement. In fact, Congress recently clarified the law on this point. On the other hand, not making money and not using the work for business purposes may help your argument that you were engaged in "fair use."

8. Is there anything I can use that I did not create myself?

Yes. For example, works in the public domain are freely available to everyone. Public domain materials in the U.S. fall into two major groups: (1) works where the copyright has expired (generally materials created before 1923, plus some later works), and (2) works of the federal government. Both groups have exceptions, though. Do not automatically assume that if a work appears to fall into one of these groups, it is in the public domain. For example, Shakespeare's original works are in the public domain, but recent movie versions of these plays are not. Similarly, while works by the federal government are in the public domain, works prepared for the federal government frequently are not.

9. How do I make "fair use" of copyrighted works?

This is a complicated concept and the subject of many lawsuits, learned articles and treatises. Some parts of fair use were written into the copyright statute in 1976. Fair use generally lets you use portions of copyrighted materials in face-to-face teaching, personal discussion, research, and news reporting. But how much you can use and what you can do with the material is by no means clear. Ultimately, it is up to a judge or jury whether you have "gone too far" and how the law applies to your situation.

10. Can I reprint facts?

Sure. Facts do not belong to anyone and they are not protected by copyright. However, there is a catch! The way a fact is expressed can be protected, if it is unique and creative. "The flag is flying" is a fact not protectable by copyright. But "Oh, say, can you see, by the dawn's early light, what so proudly we hailed at the twilight's last gleaming?" is an expression of the same fact that would be protected (except, since it was written in 1814, it is now in the public domain!). The quintessential example of unprotectable facts, as decided by the Supreme Court, is the telephone white pages. That's because they contain no original or creative information. On the other hand, other courts have stated that certain aspects of the telephone yellow pages CAN be protected by copyright. That just goes to show how little originality or creativity is required for copyright protection!

11. Is copyright infringement always criminal?

No. It can be a criminal violation with possible prison penalties, but it is most often a civil violation. That means the copyright holder needs to sue an infringer. If the infringement is proven, the rightsholder will get money either commensurate with the damage to the owner, or with the benefit gained by the infringer. There may possibly be statutory damages and an order (injunction) for the infringement to cease. In both civil and criminal cases, the statute of limitations for infringement is generally three years.

This website and all of its content, unless otherwise noted, is Copyright protected, © 1997–2017 by David Weir.