Basic Copyright Law

Richard Warner

Copyright: A Bundle of Rights The right to make copies: The right to

reproduce the photo For example, scanning it, or photocopying it.

The distribution right: The right to distribute copies For example, selling them or giving them away.

The public display right: The right to display the photograph in public by, For example, hanging a copy of in an art show.

A Bundle of Rights The right to make a derivative work: The

right to use the photo in creative another work. Creating a video which displays images take from

the photo as the song plays in the background. The public performance right:

You hold the copy right in a song you have written. The public performance right is the right to perform the song in public.

17 U. S. C. §106.

How A Copyright Is Created

A copyright comes into being whenever someone creates an original work of authorship fixed in a tangible medium. 17 U. S. C. §102(a). The author holds the copyright.

Note: there is no requirement that the copyright be registered, nor is there any requirement that the work contain a notice (like the symbol “©”) that it is copyrighted.

Three Questions

The way to understand “the original work of authorship fixed in a tangible medium” rule is to ask:

What is a work of authorship? What counts as original? What counts as fixed in a tangible

medium?

Work of Authorship

When you read the phrase “a work of authorship,” it is natural to think of works with some artistic, intellectual, or other sort of creative merit.

This is not required. A “work of authorship” need not have any creative merit.

Smith’s Novel

Suppose, for example, Smith has just completed his first novel, Smith Hero. The novel is terrible. It has no artistic merit at all.

The fact that Smith’s novel is terrible does not prevent it from being a “work of authorship” for purposes of copyright law.

Courts Are Not Art Critics A work of authorship need not have any

creative merit. But the purpose is to “promote the Progress

of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U. S. Const. art. I, §8.

Wouldn’t it better “promote the Progress of Science and useful Arts” to provide copyright protection only to works of creative merit?

Too Short?

Sally writes a short story for children which also helps them learn to add and subtract. Combining the words, “education” and “entertainment,” Sally calls her approach “edutainment.”

Suppose Sally holds the copyright in the word, “edutainment.” Then no one could use the word “edutainment” without potentially violating Sally’s copyright.

Too Short Is Too Restrictive

To use the word, one has to produce a copy of it—a spoken copy, or a written, printed, digitized, or otherwise reproduced copy.

This would greatly restrict the ability of others to refer to Sally’s approach to education in commentary, criticism, or in the planning of their own educational works. This would be an undesirable result. By restricting the ability of others to talk about Sally’s approach, it would not “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Too Short To Be Copyrighted

Copyright law avoids this undesirable result by holding that words and short phrases are not “works of authorship” for the purposes of copyright law; hence, they cannot be copyrighted.

Copyright law takes a similar approach to the things we say in ordinary conversation.

Casual Conversation

Sally and Roger having a casual conversation about Sally’s “edutainment” approach to education; in the course of this conversation, Sally says, “Everyone should entertain giving their kids and educational edge with edutainment.” Sally is so pleased with the sentence that she wants to claim a copyright in it.

Is the sentence, “Everyone should entertain giving their kids and educational edge with edutainment,” a “work of authorship” for purposes of copyright law?

The answer is “no.”

Allowing people to copyright what they say in ordinary conversation would greatly inhibit people’s ability to report those conversations to others (as in, “Sally had an interesting idea yesterday; she said, . . .”), and would in this way not “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U. S. Const. art. I, §8.

Work Of Authorship

This treatment of conversational items, illustrates the use the “work of authorship” requirement to limit the scope of copyright; copyright law will impose this requirement to limit copyright from extending, for example, to gestures we make in a conversation, the movements a professional basketball player makes in driving to the basket, and so on.

Created By A Human Being

A work of authorship must be created by a human being.

Suppose Mason records the sounds bees make in their hive. Mason distributes the recording under the title, Bee Song.Is Bee Song—that is, the sequence of sounds Mason recorded—a work of authorship for the purposes of copyright law?

No Copyright in the Sounds

The sounds were created by the bees, not by a human being. Mason may, however, have a copyright in the recording, which he did create.

Summary of Work of Authorship A creation can be a work of authorship

without having any creative merit, but it must be created by a human being, and it cannot consist of just a word or two, some part of an everyday conversation.

Thus, “work of authorship” is a broad category, including, for example, e-mails, student notes, bad poetry, and this tutorial.

Originality

A copyright comes into being whenever someone—referred to as “the author”--creates an original work of authorship fixed in a tangible medium.

There are two basic requirements: independent creation; and, minimal creativity.

Independent Creation To be original a work must be the

independent creation of its author. You discover a fact that no one else was

aware of—for example, that Shakespeare had a twin brother. You publish your discovery. Your discovery is original in the sense you were the first to discover it.

The fact that Shakespeare had a twin brother is not “original” in the sense required by copyright law.

You Did Not Create the Fact

The fact that Shakespeare had a twin brother is not your independent creation, and consequently you have no copyright on this fact, although you may have a copyright on other aspects of your scholarly article.

Minimal Creativity A work of authorship must exhibit some minimal

creativity to qualify for a copyright. The landmark case is Feist Publications v. Rural

Telephone Service, 499 U. S. 340 (1991). Rural published a telephone book containing names, telephone numbers, and addresses listed in alphabetical order.

The information is factual and not created by Rural Telephone; however, Rural Telephone did choose the alphabetical order for presenting the names.

Feist v. Rural Telephone

Feist specialized in providing region-wide telephone books covering more areas than any one local telephone book.

It got the content for its book through license agreements with the local telephone companies.

It requested a license from Rural, but Rural refused. Feist used its content any.

Rural sued for violation of copyright.

The Holding in Feist

Feist denied copyright protection: an alphabetical ordering of names and addresses lacks the required originality.

Originality requires independent creation and minimum creativity. “The fruits of intellectual labor” “All facts—scientific, historical, biographical, and

news of the day” are not copyrightable. A compilation of facts may be copyrightable. But

the facts in the compilation are not.

At Least Some Creative Choices Does Rural Telephone have a copyright on

arranging those names, telephone numbers, and addresses in alphabetical order?

The court held that the arrangement was not sufficiently original. The arrangement had been in use for a long time in telephone books and elsewhere.

To satisfy the originality requirement, an author must make at least some creative choices in producing the work.

Dixon’s Notes

Suppose Dixon is listening to a lecture on property law. She thinks the professor is presenting things in a rather confusing way, so, when she takes her notes, she rearranges the presentation in way that makes more sense to her. (a) Dixon made creative choices in organizing her

notes. (b) Dixon did not make creative choices in

organizing her notes.

Not Much Creative Is Required

When Dixon rearranges the presentation in a way that makes more sense to her, she makes creative choices about how to organize the material.

Dixon’s creativity is most likely enough to satisfy the originality requirement. Only a minimal amount of creative choice is required.

Need Not Be New

The creativity requirement can be fulfilled even if the author creates something which has already been created before.

Suppose Dixon is not the first student to find the professor’s presentation confusing. George had the same reaction a year before Dixon, and like her, reorganized the presentation in his notes in exactly the way Dixon would do a one year later.

Dixon’s notes still satisfy the creativity requirement because she did not copy them; they result from her own creative choices.

Fixation

To be copyrighted, an original work of authorship must be fixed in a tangible medium of expression. Under 17 U. S. C. §101,

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by and under the authority of the author, is sufficiently permanent or stable to permit its to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Dixon’s Notes

Dixon’s notes are an original work of authorship. Suppose that she handwrites her notes on paper. When she handwrites the notes, (a) she fixes them in a tangible medium of

expression. (b) she does not fix them in a tangible medium of

expression.

Fixation For the Notes

The handwritten notes are a copy “sufficiently permanent or stable to permit its to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration,” and the notes are “embodied” in this copy “by and under the authority of the author.”

Digital Fixation

The result would be the same if Dixon had taken her notes on a computer and saved them on the hard drive. She would still create a copy “sufficiently permanent or stable to permit its to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration,” and the copye would be produced “by and under the authority of the author.”

Ideas Cannot Be Copyrighted

Ideas cannot be copyrighted. Only the expression of an idea fixed in an original work of authorship can be copyrighted.

The point of copyright as expressed in Art. I, §8 of the Constitution. The purpose is to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Not Copyright in Ideas

Allowing people to copyright ideas would not “promote the Progress of Science and useful Arts.” It would make progress more difficult by inhibiting the free flow and discussion of ideas. Every time someone expressed a copyrighted idea, they would be potentially violating copyright.

Fair Use

Another important limitation on copyright is fair use. The doctrine of fair use allows someone to use a copyrighted work without violating the copyright even though the person did not get permission for the use from the copyright holder. 17 U. S. C. §107.

Typical examples: quoting from a copyrighted work in a scholarly article or newspaper story; and, using copies of a copyrighted work for an educational purpose.

Fair Use

The rationale is the same as the rationale for not allowing copyright in ideas: namely, allowing “fair use” promotes “the Progress of Science and useful Arts.”

DJ Earworm’s Mashup

“The United State of Pop” by DJ Earworm, http://djearworm.com/united-state-of-pop.htm, is a mashup of the 25 top pop hits of 2007.

Did DJ Earworm violate copyright?

Fair Use: Factor One

The purpose and character of the use, Commercial versus nonprofit/educational

Spontaneity Transformative.

Fair Use: Factor Two

The nature of the copyrighted work Previously published. Informational or creative.

Fair Use: Factor Three

The amount and substantiality of the use. Quantity: how much is used? Quality: How important to the work is the part

used?

Factor Four

The effect of the use upon the potential market for or value of the copyrighted work.

Music mashups have an effect on a potential market: the market in which copyright holders license use

of pieces of music to makers of mashups.

Music Mashups

Music mashups have an effect on a potential market: the market in which copyright holders license use of pieces of music to makers of mashups.

Should copyright holders be able to collect fees?

Answer “Yes,” and you should hold that DJ Earworm violated copyright. Answer “No,” and you should hold the opposite.

What Should Happen?

Should copyright holders be able to collect fees?

Answer “Yes,” and you should hold that DJ Earworm violated copyright. Answer “No,” and you should hold the opposite.

Copyright law does not tell us what the answer is.

Two Markets

The business mashup affects both and actual and a potential market.

Actual: the market served by the site from which the information was copied.

Potential: The market in which copyright holders license the use of the information to makers of mashups.

A Business “Mashup”

You are a furniture retailer in Chicago. Many of your clients are Polish interior decorators with many Polish clients. To attract the decorators to your web site, you send automated search programs over the web to locate news and articles of potential interest. The search program copies the stories and sends the copy to your site, which you then post.

Do you violate copyright?

Two Questions

Actual market: Should copyright holders be receive legal protection against such mashup copying?

Potential market: Should copyright holders be able to collect fees?

Princeton University Press v. Michigan Document Services Michigan Document Services copied parts of

books to make coursepacks for students. The coursepacks

Allowed professors to select just the materials they wanted to use, and

Saved students money. But the materials were copyrighted.

Fair use? Are the copyright holders entitled to fees for

the copying?

Three Points

(1) A “copyright holder can always assert some degree of adverse [e]ffect on its potential licensing revenues as a consequence of [the defendant's use] simply because the copyright holder has not been paid a fee to permit that particular use.”

(2) “But such an assertion will not carry much weight if the defendant has “filled a market niche that the [copyright owner] simply had no interest in occupying.””

Comment Continued

(3) “Where, the copyright holder clearly does have an interest in exploiting a licensing market—and especially where the copyright holder has actually succeeded in doing so—”it is appropriate that potential licensing revenues for photocopying be considered in a fair use analysis.””