Copyright Law and What it Means

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Introduction

Copyright is the right to prevent the unauthorized copying, adaptation, sale, performance or display of creative works. The current law protects all "original works of authorship fixed in any tangible medium of expression." This definition includes all types of literary works, musical works, movies and other audiovisual works, paintings, drawings, sculptures and other types of art, as well as computer software, technical drawings, maps and even architectural works. While facts are not copyrightable, certain compilations of factual information, such as catalogs and directories, may have limited copyright protection if they contain an original selection, coordination or arrangement of facts.

Copyright protection does not apply to ideas or concepts, only to the particular expression of an idea or concept. Functional devices, processes, systems, methods of operation and methods of business are not protected by copyright law. Thus there is no copyright protection for simple calendars, rulers, scientific formulae or blank forms.

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The Rights of a Copyright Owner

The essence of copyright protection lies in the exclusive rights that the owner of a copyright holds. A copyright owner has the exclusive right to do or authorize any of the following:

  • prepare derivative works based upon the copyrighted work;
  • publicly distribute copies of the work;
  • publicly perform the copyrighted work; and
  • publicly display the copyrighted work.

As a general rule, no person can exercise any of these rights without permission from the copyright owner.

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Copyright Formalities

Copyright is obtained by including a copyright notice on the work and by registering the copyright with the U. S. Copyright Office in Washington, D. C. However, notice and registration are not mandatory and are not prerequisites to copyright protection. The copyright comes into existence automatically upon creation and fixation of the work.

Fair Use considerations for using copyrighted materials can apply in some cases. The Copyright Law identifies several examples of what might constitute "fair use" such as criticism, comment, news reporting, teaching, scholarship and research. While "fair use" is not defined, the statute lists factors that should be considered in determining whether the use made of any work is a fair use. The criteria are as follows;

  • 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 affect of the use upon the potential market for or value of the copyrighted work.

Like any property right, a copyright may be assigned, transferred, or sold. The new owner of the copyright then obtains the unlimited right to exercise all of the rights conveyed by the party making the transfer.

If you copy a protected work without obtaining permission to use any of the copyright owner's exclusive rights, and you cannot take advantage of any of the legal exceptions to infringement such as fair use, then you probably have infringed the owner's copyright.

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The Current Law

The rules under the current Copyright Law are relatively simple. The copyright in most works lasts until fifty years after the date of the last surviving author's death. In the case of works owned by corporations, usually as works made for hire, and anonymous and pseudonymous works, the copyright lasts for 75 years from the date of publication or 100 years from the date of creation, whichever expires first.

If the author died more than fifty years ago, however, you still cannot safely assume that the work is in the public domain. Whether the work is still protected by copyright depends on, among other factors, whether it was published or unpublished as of January 1, 1978. The copyright in any work that was created before January 1, 1978, but remained unpublished as of that date (and was not registered in the Copyright Office as an unpublished work) lasts at least until December 31, 2002. If it is published by then, the copyright will be extended at least until December 31, 2027. These are both minimum copyright periods. In either case, if applying the "life-plus-fifty" rule would extend the copyright beyond the date provided by the statute, the "life-plus-fifty" rule applies instead. In the case of works made for hire that were unpublished as of January 1, 1978, the copyright lasts for an additional 75 years.

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The Old Law

If the work in question was first published or created before January 1, 1978, the rules of the old copyright law apply. Under the old law, all published works had to comply with certain formalities in order to be protected by copyright under the statute. A published work could be copyrighted simply by publication with a valid copyright notice. If a work was published without a copyright notice, it would fall into the public domain even if the omission was inadvertent. Once a work was copyrighted, the copyright lasted for an initial period of 28 years. The copyright owner could renew the copyright for a second-term of 28 years which was increased to 47 years in 1978. The 1992 amendment to the Copyright Law automatically renews copyrighted works that were copyrighted between January 1, 1964 and December 31, 1977.

These rules are complex, to be sure, but a simple example may help clarify how to apply them. Suppose you wish to use a chapter in a book that was published in 1967 as part of a collection of essays that will be published in 1996. Your copy of the book contains a valid copyright notice, and you are confident that it is a first edition. You need to search no further. The work is subject to full copyright protection. Now suppose the book you wish to use was first published in 1947. Its first term would have expired in 1975. In order to be protected the copyright owner would have had to renew the copyright before the end of the 28th year. Thus, it is necessary to conduct a search of the records of the Copyright Office to find if it was renewed.

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Home Use of Copyrighted Works

Because the concept of home copying for personal use has never been extended officially to the copying of other kinds of protected works [besides video copying], making a copy at home of any other form of copyrighted materials, such as books or magazine articles, photographs, architectural plans, written music of plays, may be considered infringement if permission is not obtained from the copyright holder.

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Unpublished Works

Manuscript collections, organizational archives, personal letters, email or research materials that a library or repository has in its holdings may still be protected by copyright unless that copyright has been officially transferred. When a repository or library receives a collection of old unpublished letters, manuscripts, photographs, or old organizational archives, there is a valid copyright existing in those works which cannot expire before December 31, 2002. On New Year's Day 2003, previously unpublished materials are going to leap into the public domain. On that day, universities, libraries, and other archives may be free to publish all of these previously unpublished materials, depending on when they were created and when their author died, and allow unrestricted access without fear of legal entanglements based upon copyright claims.

It is important to note that merely sending a letter to someone does not give the recipient any copyright rights; the author of old letters that are on a shelf or in a file cabinet still owns the copyright. If he or she is deceased, the heirs are the owners.

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Obtaining Copyright Permission

It is the responsibility of the individual wishing to use the work to obtain copyright permission.  The request should be in writing and should be sent with a self-addressed, stamped return envelope.

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