What is a copyright?
A copyright is the bundle of exclusive rights granted to the creator of an original work of authorship that has been fixed in a tangible medium.
What are the exclusive rights?
Copyright owners are granted the exclusive right to control the:
- Reproduction of their work
- Creation of derivative works that are based on their work, e.g. a film based on a novel or a Broadway musical based on songs from a pop ban
- Distribution of their work
- Public performance of prose, poetry, music, plays, musicals, choreographic works, pantomimes, films and other audiovisual works, and in the case of sound recordings performed by digital and satellite transmission
- Public display of visual and graphic art, sculpture, prose, poetry, music, plays, musicals, choreographic works, pantomimes, films and other audiovisual works
What kind of works qualify for copyright?
Works of original authorship that are fixed in a tangible medium qualify for copyright protection, including:
- Literature, poetry and other literary works
- Musical compositions, lyrics and sound recording
- Newspaper and Magazine articles
- Plays and musicals
- Dance choreography
- Artistic works: pictorial, graphic, and sculptural works
- Films and television programs
- Architectural plans
- Computer programs
- Website content
- Databases and other compilations and collections
Who owns the copyright in a work?
Under the Copyright Act, typically the person who creates a work is the copyright owner and as such is the beneficiary of the exclusive rights of copyright. There are two exception to this: (1) where an employee creates a copyrighted work in the course of his/her employment, the owner is that person employer, and (2) where there exists a written agreement between an employer and a contractor specifically to create any of the following works, the copyright in that work will be owned by the employer:
- contributions to a collective work
- parts of a motion picture or other audiovisual work
- supplementary works (e.g., after-words and forewords to books)
- instructional texts
- tests, and answer materials for tests
When a work is created by multiple creators the work is jointly owned by those creators unless there is a written agreement that delineates a different ownership structure.
The publisher of a collection or compilation of works or other materials owns the copyright in the collection (but no interest (unless there is an agreement otherwise) to the underlying works).
How is a copyright secured?
Once a work has been fixed in tangible form, the exclusive rights of copyright apply automatically. The work does not need to be registered with the Copyright Office. However, there are a number of benefits available only to works that are registered with the Copyright Office. (see below)
A copyright notice does not need to be affixed to a work for it to be protected. However, including a copyright notice on a work provides several substantive and procedural benefits, such as alerting the world that a copyright is claimed in a work:
© YEAR Claimant
© 2007 Copyright Alliance
What are the benefits of registering a copyright with the Library of Congress?
Registration with the Copyright Office is required prior to filing any lawsuit to enforce the exclusive rights.
Registration within three months of publication or prior to an infringement is required to obtain statutory damages and attorney fees.
- Statutory damages for innocent infringement may range from $750 to $30,000 per work infringed
- Statutory damages for willful infringement may be as much as $150,000 per work infringed
How do you register a work with the Copyright Office of the Library of Congress?
At its website, www.copyright.gov, the Copyright Office of the Library of Congress provides applications with ample instructions for the registration of copyrights. Applications have traditionally been by paper, but the Copyright Office is preparing to accept electronic filings, as indicated in a recent Federal Register notice.
- Literary Works: for a broad range of text based non-dramatic works, including, but not limited to, literature, academic materials, online works, software and qualifying databases
- Visual Arts: for works including pictorial, graphic, or sculptural works, including 2-dimensional and 3-dimensional works of fine, graphic, and applied art.
- Performing Arts: for works that are performed by “means of any device or method” which include: (a) both compositions and lyrics for musical works; (b) scripts and any accompanying music for dramatic works; (c) pantomimes and choreography; and (d) television shows, motion pictures and other audiovisual works. (not including accompanying soundtracks or sound recordings of a show).
- Sound Recordings: for works, including recordings of music, lectures and readings “but not including the sounds accompanying a motion picture or other audiovisual work.”
- Serials and Periodicals: for periodicals, newspapers magazines and other works that are issued or to be issued “in successive parts bearing numerical or chronological designations and are intended to be continued indefinitely.”
NOTE: The appropriate application must be filed to obtain the benefits of the registration. Consult the ample instructions provided on the Copyright Office’s website and with the application. If in doubt, consult a lawyer who practices copyright law.
How long does copyright protection last?
Once a work that has been created on or after January 1, 1978, is fixed in tangible form, copyright attaches. The term for copyright protection for works created on or after January 1, 1978, depends on the claimant of the exclusive rights of the copyright:
- If the author is an individual the term is the life of the author plus 70 years; for joint works the term lasts for the life of the last surviving author plus 70.
- If another party claims the copyright as a “work made for hire” the term is 95 years from publication or, for unpublished works, 120 years.
- Where copyright is claimed by a person anonymously or under a pseudonym the term is 95 years from publication or, for unpublished works, 120 years.
For works created on or before January 1, 1978, the term depends on a number of factors.
- Under prior copyright law, copyright was secured either by registration or publication with a copyright notice.
- The initial term for copyright protection was 28 years, with one right of renewal for an additional 28 years. The Copyright Act of 1976 extended the renewal term to 47 years for works under copyright protection as of January 1, 1978. In 1998, the renewal term was extended to 67 years for all protected works.
- The extension of the renewal term is now automatic for works that were protected prior to January 1, 1978, though there are some benefits to register a renewal application.
- In the event that a work was created but neither published with a copyright notice nor registered with the Copyright Office prior to January 1, 1978, and had not entered the public domain, the work automatically qualifies for copyright protection for the terms of year set forth for works created after January 1, 1978. (Note, if a previously unpublished work had been published by December 31, 2002, the term will not expire prior to December 31, 2047.)
What is Fair Use?
There are certain limitations on the exclusive rights of copyright owners available to third parties either as affirmative defenses to claims of infringement or as exemptions. For example, there is a limitation on the exclusive rights of copyright owners for libraries and archives to reproduce and distribute protected works.
The most common, and complicated, defense to copyright infringement is fair use. The Copyright Act of 1976 incorporated the principle that some uses of protected works without permission from the owners of the copyright should be considered “fair use.”
Fair use is an affirmative defense to copyright infringement and is determined on a case by case analysis. For a use to be considered fair, courts must consider the following four elements:
- What is the purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107 (2006).
Where can I learn more?
There are numerous sources available targeting both artists and consumers. Some materials can be found in the For Educators section of our web site. Another source is a Copyright Education curriculum, complete with PowerPoint presentation, compiled by the Picture Archive Council of America, a member of the Imagery Alliance.