Copyright for Copywriters: A Review of Basics
The digital revolution has made it very easy for us to access material from files, web sites and the Internet. We all freely copy things we like and send them to others, use them on our social network sites or add them to our presentations and reports. The ease with which we can claim material for our own use may be obscuring the fact that much of this use could violate copyright laws.
What is copyright?
Copyright is legal protection for authors on how their original works are used. The owner of a copyright has the exclusive right to
• reproduce the work;
• prepare derivative works;
• distribute copies of the work by selling, renting, leasing or lending; and
• perform or display the work publicly.
Copyright protects a wide variety of original works, from the written word (poetry, stories, books) to entertainment (songs, movies, video games, plays, choreography) to visual arts (paintings, sculpture, photographs, architecture). It also includes software code, derivative work and compilations.
To qualify for copyright protection, a work has to be tangible (meaning it exists in physical form) and must be original (defined as independently created by the author and stemming from a creative effort). Ideas cannot be copyrighted, nor can facts – even if the author has engaged in significant effort to uncover them.
Copyright exists from the moment a work is created and available in tangible form. A work does not have to be registered with the U.S. Copyright Office for copyright protection to exist, though registration is required to bring a lawsuit for copyright infringement. Copyright lasts for a specific period of time which begins when the work is published – that is, when it is released to the public without restriction.
Names cannot be copyrighted, but they can be trademarked (as can words, phrases, symbols or designs that identify a brand).
Copyright law, which has its origins in English law dating back to 1662, was written into the Constitution of the United States in 1887. Congress enacted the first federal copyright law (An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts and Books to the Authors and Proprietors of Such Copies) in May 1790 and the first work was registered two weeks later. In 1870 copyright functions were placed within the Library of Congress; the Copyright Office became a separate department within the Library of Congress in 1897. The copyright law has been revised repeatedly, in 1831, 1870, 1909 and 1976.
Copyright law applies to seven broad categories:
• Literary works: works of fiction and nonfiction published as books, periodicals, manuscripts, computer programs, manuals, phonograph records, film, audiotapes and computer disks.
• Musical works: songs, operas, musical plays and their accompanying words.
• Dramatic works: plays, dramatic readings and music.
• Pantomimed and choreographed works.
• Pictorial, graphics and sculptural works: slides, tapes, multimedia presentations, film strips, films, videos
• Motion pictures and audiovisual works: fine and applied arts, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams and models.
• Sound recordings: records, tapes, cassettes and computer disks.
Using a copyrighted work
There are certain conditions under which a copyrighted work may be used or copied:
• The work is in the public domain. Any work belonging to the public as a whole, such as work produced by employees of the federal government, works published before 1923, or works whose copyright protection has expired, can be used and copied without restriction.
• The user has been granted permission by the copyright holder. A copyright holder can grant a user permission to use the work. The permission can include limitations and restrictions on use, such as a one-time use in a specific situation. If a copyright owner unconditionally transfers all his rights, the transfer is called an assignment. If only some rights of transferred, it is called a license. An exclusive license is the transfer of rights to a single licensee; a non-exclusive license is the transfer of rights to more than one licensee.
• The use is for criticism and commentary or parody. These uses are spelled out by the doctrine of fair use.
The doctrine of fair use is an important limitation on the rights of the copyright owners. It was established in 1976 in recognition that strict application of copyright law would impede the production and distribution of works to the public. The rationale is that the public will benefit if there are uses for copyrighted material that do not constitute copyright infringement.
Fair use allows for use of a copyrighted work, including reproduction, without permission of the owner if the purpose is for criticism, commentary, parody, news reporting, teaching, scholarship or research. If, for example, you are writing a review that critiques or comments on a copyrighted work, you can reproduce some of the work to make your point. You can quote from the book, article or song and you can copy a few paragraphs to use as a teaching aid.
The fair use doctrine also applies to parody – a work that ridicules another work by imitating it in a comic way. When the fair use doctrine is applied to parody, it allows for a more extensive use of the original work.
There are some restrictions to the doctrine of fair use, such as numerical limits on how much of a work may be copied; the use must not have a negative effect on the market for the copyrighted work; and the copyright notice must be included on all copies. However, note that including the copyright notice is not a defense if the copyright is deemed to have been infringed, and owning a copyrighted work does not confer copyright ownership.
The importance of honoring copyright
Be aware that the copyright owner may request payment as a condition of granting permission. In general, the amount of the payment is a function of the size of your audience and whether it is a commercial or educational use.
Finally, get the permission in writing. An oral agreement for copyright permission is as vulnerable to misunderstanding or misinterpretation as any other oral agreement.
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