Definition of Copyright

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.

Copyright differs from other forms of creator protection.(For example, Patents give inventors exclusive rights over use of their inventions, and Trademarks are legally protected words or symbols or certain other distinguishing features that represent products or services.) Similarly, whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea.

Intellectual Property

The operative notion in patents is novelty, so that a patent represents some invention that is new and has never been made before. The basic concept behind copyright is originality,so that a copyright represents something that has originated from a particular author and not from another. Copyrights, patents, and trademarks are all examples of Intellectual Property.

The media on which artistic and intellectual works are recorded have changed. Copyright protection extends from the printing of text to many other means of recording original expressions. Besides books, stories, periodicals, poems, and other printed literary works, copyright may protect computer programs; musical compositions; song lyrics; dramas; dramatic-musical compositions; pictorial, graphic, and sculptural works; architectural works; written directions for pantomimes and choreographic works; motion pictures and other audiovisual works; and sound recordings.

Exclusive Rights

Copyright gives an author a number of rights:

• The exclusive right to reproduce, or copy, the work;
• The exclusive right to prepare new works that derive from the copyrighted work;
• The exclusive right to distribute the work to the public by sale or other arrangement;
• The exclusive right to perform the work publicly; and (5) the exclusive right to display the work publicly. The first two rights, involving reproduction and derivation, are infringed whether violated in public or in private, or whether violated for profit or not.

The last three rights are infringed only when violated publicly, that is, before a “substantial number of persons” outside of family and friends (17 U.S.C.A. § 101).

The exclusive rights afforded by copyright may have significant economic value. For example, derivative works may include translations, dramatizations, films, recordings, and abridgments which can offer substantial rewards to the author. An author may sell, license, or transfer one or all of the exclusive rights.

Duration of Ownership

Under the provisions of the Copyright Act of 1976, copyright protection of an authored work extended through the life of the author and to fifty years after the author’s death. In a major piece of legislation, Congress extended copyright terms in 1998 in the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (17 U.S.C.A. §§ 101 et seq.). Title I defines the terms of the copyright extension, while Title II provides a “music licensing exemption for food service or drinking establishments.” This portion of the law is also known as the Fairness in Music Licensing Act of 1998.

The duration of copyright law under the 1998 act was extended for all copyrighted materials. Works created on January 1, 1978, or after are protected from the time the work was “fixed in a tangible medium of expression.” The term is for life of the creator plus 70 years. If the creator is a corporation, then the term is 95 years from publication or 120 years from the date of creation, whichever is shorter.

Copyright Infringement

Copyright infringement involves any violation of the exclusive rights of the copyright owner. It may be unintentional or intentional. When unintentional, it is called innocent infringement. When former Beatle George Harrison created his song “My Sweet Lord.” Harrison was found to have unconsciously copied the tune of another song, “He’s So Fine,” by the Chiffons, and thus was liable for infringement (Bright Tunes Music Corp. v. Harrisongs Music, 420 F. Supp. 177 [S.D.N.Y. 1976]). Vicarious or related infringement refers to those who profit indirectly from the infringement of copyright, as in the case of a theater owner who profits from booking a band that illegally performs copyrighted works.

Infringement of copyright is usually established through Circumstantial Evidence. This evidence must show a substantial similarity between the original and the copy and prove that the copier had access to the original. This means that where two works are similar or identical, there is no infringement if each work was produced through the original and independent work of its creator. An infringer is not relieved of liability by crediting the source or the creator of the infringed work. Although infringement does not require that even a large portion of the work be similar, it does require that a substantial part be similar. It is irrelevant if the copied work is an improvement of the original work.

Copyright Act of 1976

The Copyright Act of 1976 recognizes a copyright not only in a publisher’s collective work and also a separate copyright for each author’s contribution to the work. With the growth of electronic databases and disk to store data, some freelance authors began to object to their articles being sold to companies that produced these databases and disks. The Supreme Court, in New York Times v. Tasini, 533 U.S. 483, 121 S. Ct. 2381, 150 L. Ed. 2d 500 (2001), held that the Act protects the copyrights of the writers, rejecting an argument by the publishers that the conversion of the original works to an electronic format constituted a “revision” of the collective work, which would have been permissible under the Copyright Act.