Copyright: The Nuts and Bolts
Summary: (or, get away from my intellectual property—-at least for seventy years after my death and only if you’re planning on taking more than a certain amount)
THE BRASS TACKS
A copyright is the limited protection of the expression of an original idea. These expressions, as defined by Section 102 in Title 17 of the United States Legal Code, include literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, and architectural works in any tangible form. It is important to note that it must be tangible—copyright law protects the physical representation of ideas. Interesting dilemmas arise from this definition—for example, one person might have the copyright for the musical notation for a particular song, while another person (or, oftentimes, several different people) might have a copyright for their particular sound recording of the song.
Exercise 1
In this case, who has control over the song, the person A who owns the sheet music or the person B who recorded a version of it?
Solution 1
That was a rhetorical statement. Kind of a trick question, as it were. The point is that under copyright law, the “song” doesn’t exist as a single entity—its several manifestations exist as separately protected works. Person B has a copyright on the recorded material, so they have control over the performance of their version of the piece while person A has a copyright on a piece of graphic notation, so they have control over its display and reproduction. (However, in order for person B to have been able to record a version of the song person A had authored, it would have had to either represented enough of an original work or the two must have worked out some kind of agreement for the transfer of copyright (often through royalties). This demonstrates fact that there is legally some degree of continuity between the two, as the law states that existing in a different form doesn’t prevent it from being a copy and therefore an infringement of person A’s copyright.)
In order to be copyrightable, the work must fall under the above mentioned categories of representation, must be in a tangible form as mentioned, but also must exhibit a certain degree of originality and must be owned or authored by the person claiming copyright.
WHAT DOES YOUR COPYRIGHT DO FOR YOU? (other than make your creative work look more official)
A copyright grants the owner the exclusive right to reproduce, distribute, and display a particular work, as well as control over any derivative works. [It is important to distinguish between owner and author: the author is not necessarily the owner of the work, as with work-for-hire or when ownership is transferred from the author to another (a typical scenario with musicians and record labels).] This right also brings with it the right to sue on the basis of copyright infringement if another person copies a substantial amount of the protected work.
The inclusion of the term “substantial” is significant, because the extent to which a work is merely sampling rather than fully copying a previous work can determine if it is in violation of the previous work’s copyright. This aspect of the law has been developed through two notable Supreme Court cases:
With Folsom v. Marsh (1841), the Court decided that the amount of work reproduced must be enough to reduce the value of the original work. In this case, a book written by Charles Upham on the life of George Washington had used 350 of its 866 pages to copy in full letters found in a previously published collection of Washington’s correspondences. Justice William Story sided with the original publisher, saying the following:
"It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, to constitute a piracy pro tanto."[source]
A potential flaw in this area of the law is that the amount—either in quality or quantity—of a work reproduced to deem it an invasion of copyright is subjective, but necessarily so. A later case actually went so far as to mathematically quantify this amount. In Maxtone-Graham v. Burtchaell (1986) the Court found that quoting 4.3% of a previously published work was legitimate and not substantial enough to diminish its value.
The extent to which one can copy another’s works is also involved in the concept of fair use. Copyright law embodies two competing interests: exclusive control as an incentive for creative production and the open distribution of ideas for the greater good of society. The fair use principle basically acts as a limit on the exclusivity of copyright, in order to balance these two interests. Fair use allows for copying a section of a previous work for educational purposes.
see Section 107 in Title 17 of the United States Legal Code for specifics on fair use.
Exercise 2
Would you be infringing copyright law if you created a booklet full of thousands of other people’s quotes (and no original content of your own)?
Solution 2
No. The issues here are originality and fair use. It could be argued that by your original creative act is the compilation of the quotes into some gestalt and you would be protected by fair use as long as you didn’t use a significant portion of any of the individual author’s works (in other words, it doesn’t matter how much of yours is yours, just how much of theirs is yours).
Exercise 3
Would you be free from blame if you infringed upon someone’s copyright unintentionally?
Solution 3
Nope. Lack of intent is not a justifiable defense against copyright infringement. There was a really interesting case in the mid nineties, Religious Technology Center v. Netcom, where an internet service provider was held accountable for content held on its servers that violated copyright, without its knowledge. The Digital Millennium Copyright Act has reduced the liability of ISPs to some degree, but it still goes to show you: know what you’re distributing or helping to distribute, and know the law.
Copyright law is always in flux due to new technology and shifting socio-political interests, and the law has to constantly be updated to meet new requirements. For more on this, see our accompanying module, GET AWAY FROM MY INTELLECTUAL PROPERTY, or Copyright in Perspective.
helpful links to further your study of copyright law:
U.S. Copyright Office - Copyright Law of the United States
US CODE: Title 17,TITLE 17—COPYRIGHTS
Comments, questions, feedback, criticisms?
Send feedback
- E-mail the author of the module, Copyright: The Nuts and Bolts
Footer
More about this content: Metadata | Version History
This work is licensed by Christian Ervin under a Creative Commons Attribution License (CC-BY 2.0).
Last edited by eric leshinsky on Sep 18, 2005 9:10 pm GMT-5.