COPYRIGHT FAQs

A. Copyright is a form of intellectual property that protects original works of authorship fixed in a tangible medium of expression. Copyright protection gives the owner the exclusive right to make copies of the work; distribute copies of the work; perform the work publicly (for dances, plays, music, digital audio transmissions or films); display the work publicly (for visual arts); and make “derivative works.” A copyright owner is a person or entity who owns any one of the exclusive rights of copyright in a work. Non-owners cannot exercise any of these exclusive rights without the owner’s permission, subject to certain exceptions, such as fair use.

A. Copyright law covers many different types of works, including literary works (including computer software); musical works (including accompanying lyrics); dramatic works (including any accompanying music); pantomimes and choreographic works; pictorial, graphic or sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

A. Copyright protects original works of authorship that are fixed in a tangible form of expression. “Originality” means that the work was created using at least a minimal degree of creativity. The “minimal degree of creativity” standard requires that the work have only a mere “modicum” of creativity; even a smiley face can be protected by copyright if it is changed in a way that requires some sort of creative decision-making. “Fixation” requires the work to be more than transitory in nature, whether it be written down, recorded or otherwise fixed in a tangible medium.

A. Ideas, methods, concepts, discoveries, devices, principles or systems are not protected by copyright, but written or recorded descriptions of such things may be protected because they are the expression of such ideas. Off-the-cuff oral remarks and unprepared comments presented during a non-recorded speech are not protected by copyright because they are not sufficiently “fixed.” Additionally, short phrases, titles, slogans and names cannot be copyrighted, but may be protected under trademark law. Finally, works consisting entirely of commonly available information without some minimal degree of creativity are not copyrightable because they do not fulfill the originality requirement. See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991). Further, when an uncopyrightable idea is so narrow that there are very few ways to express it, the expression is not copyrightable. This Merger Doctrine was established in Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967).

A. When a person or entity hires someone else to create a work, it is called a “work made for hire.” Generally, works made for hire are owned by the employer or commissioning party. To be a work made for hire, it must be created by an employee within the scope of his or her employment or, as to certain statutorily designated categories of works, be agreed to be a “work made for hire” by a written contract signed by all parties.

A. It is common for two or more authors to create a work together. When two authors make contributions which constitute a copyrightable work on its own (i.e., the work has the requisite originality and fixation), they are deemed “joint authors.” Joint authors each have full ownership in the work, and each may exercise all exclusive rights in the work without permission from the other author, subject to a full accounting to the joint author. In other words, any compensation one receives for the exercise of exclusive rights must be shared with the other authors equally or in percentages as previously agreed by the authors.

A. Copyright protection begins from the moment a work is created until 70 years after the death of the author or artist. For joint works, the term of copyright is 70 years after the last surviving author’s death. Copyrights in works made for hire and anonymous works last 95 years from publication or 120 years from creation, whichever is shorter. At the end of the copyright term, the work enters the “public domain,” and anyone can copy it.

A. Copyright infringement occurs when someone exercises a copyright owner’s exclusive rights granted under the U.S. Copyright Act, 17 U.S.C. §101 et seq., without permission. Several elements must be present for copyright infringement to occur. First, the copyright holder must have a valid copyright. Second, the alleged infringer must have access to the copyrighted work. Third, there must be a copying; the allegedly infringing work cannot be the product of independent creation. Finally, the duplication of the copyrighted work must be outside the exceptions granted by the Copyright Act. Major exceptions to copyright law include fair use (see 17 U.S.C. § 107), face-to-face instruction, and virtual instruction (see 17 U.S.C. § 110).

A. Penalties for copyright infringement include money damages – either actual damages incurred by the copyright owner or statutory damages ($200- $150,000 for each work infringed plus attorneys’ fees and costs). Non-monetary remedies can include a court-issued injunction to stop the infringing acts, the impoundment of illegal works, and even jailtime for a willful infringer (intentionally infringing upon a copyrighted work). There is a private right of action under the Copyright Act. In December 2020 Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (“CASE Act”), which directed the Copyright Office to establish a three-member tribunal to resolve certain copyright small claims involving less than $30,000.

A. The public domain is material that is unprotected by intellectual property rights and free for everyone to use without permission. However, copies of works in the public domain are not completely “free” in every sense because copies can still be sold. For example, The Great Gatsby by F. Scott Fitzgerald is in the public domain, so the original work can be made into a movie, translated or turned into a spinoff television show all without permission of Fitzgerald’s heirs. Additionally, some works are immediately in the public domain upon creation. These works include anything not protectable by copyright or other intellectual property laws such as ideas, facts or theories. Significantly, derivative works of a work that is in the public domain are still protected by copyright law and cannot be used without permission of their authors.

A. When the copyright law was originally enacted, there were a number of “formalities” required to perfect one’s rights. Key among those were registration of the work with the Copyright Office and publication with notice. Registration required the completion of an application and the sending of copies of the work to the Copyright Office (one copy if the work was unpublished and two copies if the work was published). The formality of notice was also delineated, including the proper location and format for notice on the work. Failure to comply with the formalities over time could strip the owner of rights granted by copyright law. With adoption of amendments to copyright law in the Copyright Act of 1976, these formalities were eliminated.

However, Congress maintained the importance of a system of copyright registration and notice by granting certain legal incentives to authors to register their works. Most importantly, registration is a prerequisite to bringing an infringement action. If a copyright owner files a registration before or within five years of publishing their work, it will serve as prima facie evidence of copyright ownership, and the owner will not have to prove they are the true owner. If copyright owners register within three months after selling or distributing the work to the public, or any time prior to the work being infringed, they are eligible for an award of statutory damages and attorneys’ fees in an infringement case. Given that actual damages may be difficult to prove and that significant legal costs render many infringement actions infeasible, these incentives make registration particularly attractive. Registration can be made any time before the term of the copyright expires. Beyond registration, works created prior to March 1, 1989, must include notice of copyright to receive protection. Works created after March 1, 1989, should still provide notice to inform the public the work is protected by copyright and by whom, but such notice is not mandatory.

A. One of the exclusive rights granted to a copyright holder is the right to create derivative works originating from the copyrighted work. Derivative works are works are defined in the copyright law as being

based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’ 17 U.S.C. § 101.

For example, a sequel to a novel and a translation of a book into another language are both derivative works. Derivative works involve two copyrights: one for the original work and one for the derivative work.

A. No. Free and open-source software is protected by copyright, but the copyright holder chooses to grant certain rights to the public by license. Similarly, Creative Commons licenses allow others to use a work in a certain way because the copyright holder has chosen to license the work.

A. Creative Commons is a nonprofit organization that has developed a licensing system which encourages creators to retain their copyright while allowing others to use their work in certain ways. Creative Commons licensing is a simple, standardized way to grant permissions for a creative work. Creative Commons has six different licenses from which creators may choose. It is important to identify the specific license that is applicable to a work since attribution and use limitations differ among the licenses.

A. While copyright is a legal system that grants specific rights to authors of works, it also is a statutory regime that sets forth limitations on the rights of authors. In this way, copyright law balances the incentives which encourage creativity and the production of new content and works with the public’s interest in robust debate, comment and scholarship. The most venerable of these limitations is “fair use.” Section 107 of the Copyright Act states that a copyrighted work may be used “for purposes such as criticism, comment, news reporting, teaching… scholarship, or research,” and that such use is considered “fair;” i.e., the work can be exploited without the consent or approval of the copyright owner. To determine whether a use is “fair,” four factors are considered: (1) the purpose of the use, including whether it is for commercial or nonprofit purposes; (2) the nature of the copyrighted work, including whether the work is highly creative; (3) the amount and substantiality of the copyrighted work used in relation to the work as a whole; and (4) the effect of the use on the potential market for or value of the work. Under the first factor, if a copyrighted work is used in a transformative way, meaning that the use adds a new creative expression or changes the purpose or character of the copyrighted work, it is more likely to be fair. By precedent, the most important factor is the fourth, which considers the impact on the copyright owner; namely, whether the use substantially or adversely impacts the potential market for the copyrighted work and whether this use monetarily impacts the copyright owner.

Under a fair use argument, a defendant in a copyright infringement case might argue that their use of the work was a parody. Parodies fall under the “criticism” or “comment” exceptions to copyright infringement enumerated in the Copyright Act, which is why Saturday Night Live can emulate television shows in sketches, and Weird Al can copy music with mere changes to the lyrics. While a parody of a work can be fair use, a use is not automatically a parody just because it is funny. To be a parody, the use must actually criticize or comment on the original work.

Finally, works of the United States Government are another exception to copyright protection and cannot be copyrighted.

A. In 1998, Congress passed the Digital Millennium Copyright Act (“DMCA”) to address the relationship between copyright and the Internet. It establishes protections for online service providers, provides legal protections against unauthorized access to copyright owners’ works and makes it unlawful to provide false copyright management information. A service provider is defined in the DMCA as “a provider of online services or network access, or the operator of facilities therefore” or “an entity offering the transmission, routing, or providing connections for digital online communications, between or among points…” The protections provided to service providers (i.e., YouTube, Facebook, other websites) under the DMCA are “safe harbors” that allow a service provider to engage in four types of activities without risking liability for money damages: acting as a conduit for transmitting material through its network; caching (temporarily storing) material within its network; storing information at the direction of a user; and providing information location tools like hyperlinks. To qualify for a safe harbor under the DMCA, a service provider must adopt measures to identify and protect copyrighted works and have a policy for handling infringing actions. The safest way to ensure protection under DMCA safe harbors is to immediately take down any known infringing material, ensure there is no direct financial benefit from infringing material, designate an agent for receipt of copyright claims on the website, provide and comply with notice and takedown procedures (an established method of providing notice of and removing infringing material) and adopt and implement a repeat infringer policy. If service providers comply with the statutory safe harbors, it will protect them from money damages stemming from lawsuits for the four types of activities listed above.

A. Like any other type of property, copyright ownership can be transferred by the owner to another person or entity. A transfer of all rights is called an “assignment” and causes the copyright owner to lose control of the work. A transfer of some rights is called a “license” and allows the copyright owner to retain certain rights to the work while giving someone else the right to exercise some of them. A written agreement signed by the copyright owner is required to transfer all copyright rights, or an exclusive right to one or more copyright rights, but a non-exclusive license need not be in writing.

A. The Technology, Education, and Copyright Harmonization Act (TEACH Act) allows teachers and instructors in certain educational environments to use a wider range of copyrighted works in connection with distance learning. To use copyrighted materials in distance education and qualify for TEACH Act exemptions, many criteria must be met, most notably: (1) the institution must be accredited and nonprofit; (2) the use must be part of mediated instructional activities; (3) the use must be limited to a specific number of students enrolled in a specific class; (4) the use must be for live or asynchronous class sessions; (5) the use must not include transmission of textbook materials, materials “typically purchased” by students or works developed specifically for use online; (6) the institution must have publicized copyright policies online to inform students that copyrighted materials may be used in class; and (7) the institution must employ technological measures to ensure compliance beyond the mere assignment of a password.

A. The Music Modernization Act (“MMA”) centralizes the use of music by establishing a more efficient licensing scheme for digital music providers. The MMA includes three sections: The Music Licensing Modernization Act (“MLMA”), the Compensating Legacy Artists for the Songs, Service and Important Contributions to Society Act (“CLASSICS” Act) and the Allocation for Music Producers Act (“AMP” Act). The MMA pertains to mechanical licenses, which are required to stream musical works and sound recordings. Specifically, the MLMA established a new collecting society called the Mechanical Licensing Collective (“MLC”) that provides blanket licenses for streaming services to companies that are not otherwise covered by the streaming service’s direct agreement with music publishers. The blanket licenses provided by the MLC allow entities to use works in the MLC database for a fee. In addition to the MLC, the MLMA created the Digital Licensee Coordinator (“DLC”). The DLC is a nonprofit organization that assists in establishing royalty rates and participates in proceedings before the Copyright Royalty Board (“CRB”) to determine royalty rates and distribution of copyright licenses. The CLASSICS Act protects sound recordings created before February 1972 and allows owners of such sound recordings to be listed in the MLC database and receive royalties for any commercial licenses. Finally, the AMP Act allows copyright owners to send “letters of direction” to authorize royalty payments to other parties that contributed to the sound recording. SoundExchange is the only government-designated collective rights management organization that handles the collection and distribution of royalties from digital performances of sound recordings. See Lutzker & Lutzker’s three-part series: Music Modernization Act: An Introduction and Glossary, Music Modernization Act: A Guide for Digital Music Providers and Music Modernization Act: A Guide for Copyright Owners.

A. The Visual Artist Rights Act of 1990 (“VARA”) was established to protect artists from the destruction and alteration of their works and provide them with the right to be credited as the author of their works. Artists eligible under VARA may prevent the use of their name on works they did not author, the use of their name on works that have been modified or distorted and the mutilation or destruction of works that are of “recognized stature.” 17 U.S.C. § 106A (a)(3)(B). The Act does not define what “recognized stature” includes, but generally courts have required visual art to be viewed as meritorious by art experts, other members of the art community or by some cross-section of society in order to be of recognized stature. VARA protects all works of visual art, meaning paintings, drawings, prints, sculptures or still photographs. To be protected under VARA, the work must be signed by the artist and be a single creation or part of a limited edition of 200 copies or less. VARA also protects works of visual art that are incorporated in buildings, specifically fountains, frescoes, mosaics, murals, sculptures and stained-glass windows. A work protected by VARA can only be removed from a building without the artist’s consent if it will not damage or destroy the work. If removal would cause destruction, the owner must determine whether the work is of “recognized stature.” If the work is of recognized stature, it cannot be destroyed without the artist’s consent. If someone fails to comply with VARA, the artist may sue even if they have not retained ownership of the copyright in the work. Violators of VARA may be liable for up to $30,000 per work or $150,000 per work if VARA was violated willfully.

A. An orphan work is a copyrighted work whose owner is unknown or cannot be contacted. Because orphan works are copyrighted, all the rights that subsist in works of known creators apply, i.e., most notably, orphan works cannot be copied, used or digitized unless exceptions such as fair use apply. Congress and the courts have long grappled with striking the appropriate balance between the right of unidentified authors and the public, especially as the number of orphan works increases and the public is denied unfettered access to these works.

A. A collective work is a compilation consisting of independent works assembled into a collective whole. A registration in a collective work covers the work as a whole but may also cover the individual works contained within the compilation if: (1) the collective and individual works are owned by the same party; (2) the individual works have not been previously registered or published; and (3) the individual works are not in the public domain. Examples of collective works include newspapers containing multiple articles, online encyclopedias and books containing multiple short stories or poems.