Copyright Basics

What is Copyright?

Copyright is a form of protection provided by the government to the authors of “original works of authorship. This protection applies to all artwork, both published and unpublished. From the time it is created, a photograph, drawing or other artwork is automatically protected by copyright, and you, the creator, are the owner of that copyright. What that means is that, as the creator of the work, you have the right to do any of the following:

  1. To make copies of your work, and to prevent others from making copies.
  1. To distribute copies of your work to the public, and to prevent others from distributing copies.
  1. To display your work publicly (such as on a wall, the Internet, or television), and to prevent others from displaying the work.
  1. To make “derivative works” (including making modifications, adaptations or other new uses of a work, or translating the work to another media) and to prevent others from making derivative works.

These are your rights and yours alone. Unless you willingly give them up (Ex: a Creative Commons license), no one can violate them legally. In general, it is illegal for anyone to do any of the things listed above without your permission. The main goals of copyright are to encourage the development of culture, science and innovation, while providing a financial benefit to copyright holders for their works. Copyright law in the United States is embodied in federal laws enacted by Congress.  The current copyright law, the Copyright Act of 1976 (as amended), is codified in Title 17 of the U.S. Code. By virtue of the Berne Convention for the Protection of Literary and Artistic Works, works are protected in all 160 countries that are party to the Convention.

What is protected?

Copyright protects original works of authorship including literary, dramatic, musical, and artistic works; such as poetry, novels, movies, songs, computer software, and architecture. Copyrightable works fall into the following categories:

  • Pictorial, graphic, and sculptural works (i.e. paintings, drawings, carvings, photographs, clothing designs, textiles)
  • Motion pictures and other audiovisual works (i.e. movies, animation, television programs and videogames)
  • Literary works, including computer software, in print and digital form (i.e. all works expressed in writing)
  • Musical works, including any accompanying words (i.e. songs, music, spoken words, sounds and other recordings)
  • Dramatic works, including any accompanying music (i.e. plays and musicals)
  • Pantomimes and choreographic works (i.e. dancing and pantomime)
  • Architectural works (i.e. buildings, blueprints, drawings, diagrams and models)

What is not protected?

Not everything is protected by copyright. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. What cannot be copyrighted falls into the following categories:

  • Works that are not in a tangible medium of expression (not written, recorded or captured electronically).
  • Titles, names, short phrases and slogans; familiar symbols or designs; variations of typographic ornamentation, lettering or coloring; 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 are natural or self-evident facts, containing no original authorship, such as the white pages of telephone books, standard calendars, height and weight charts, tape measures and rulers.
  • Works created by the U.S. Government.
  • Works for which copyright has expired; works in the public domain.

When does copyright begin?

Copyright protection exists automatically the moment a work is created. Neither publication, registration, nor other action is required to secure a copyright.  However, in some countries use of a copyright notice is recommended and in a few countries (including the United States) registration of domestic works is required in order to sue for infringement.

How Long Does Copyright Protection Last?

As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code).

Copyright notices

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial.

What is a Poor man’s Copyright?

The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

What is Public Domain?

Public domain refers to content that is not or is no longer protected by copyright. The duration of copyright varies for different types of work and from country to country.

The following are examples of public domain in the U.S.:

  • All works published before 1923
  • Works out of copyright
  • Works that fell out of copyright for failure to register or renew under 1909 Act
  • Lack of notice before 1989
  • Works created by the US government

What is Fair Use?

“Fair Use” or the “Fair Dealing” doctrine, allows limited copying of copyrighted works for certain purposes, including education and research. These limited uses do not require permission from the copyright owner. Whether a particular use is a fair use depends on the facts of each case. The law lists the following factors, which courts must consider together in determining whether a particular use of a copyrighted work is a permitted “Fair Use,” or is instead an infringement of the copyright:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes. The non-commercial educational use is more likely to be a fair use.
  • The nature of the copyrighted work. The more factual and less creative the work, the more likely it will be fair use.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The more taken the less likely to be fair use.
  • The effect of the use upon the potential market for or value of the copyrighted work. In other words, is the use taking money away from the copyright owner that he/she might have been making from their work.

No case will be decided on just one of these factors. Courts are supposed to look at all of the factors and balance them together to see whether more factors weigh in favor of finding fair use. Courts may consider some factors more important than others in each particular case.