Copyright Basics
Copyright, 1996, 1998 Green & Green all rights reserved
I. COPYRIGHT-WHAT IT IS:
A. Work in which a Copyright can subsist under U.S. law is defined as, "An ORIGINAL work of authorship FIXED in a TANGIBLE MEDIUM of expression." This basic definition is based on any EXPRESSION, not the ideas behind the expression of them.
This includes works now known or later developed if stated in an agreement, but is
usually limited to the formats the expression is "fixed" in at the time of
fixation, such as film, tape, books, and the like. These media are the common types of
copyright history has had to deal with: sounds and music, visual arts, performances, text,
and three-dimensional works, film and the like. It is becoming more likely that new forms
of expression will be recognized by the Copyright Act, such as the multimedia work, which
is really a blend of many of the more familiar forms. These forms NOW KNOWN or later
developed may form the basis of new laws to handle them and their registration. All forms
of copyrightable material must be able to be PERCEIVED, REPRODUCED, OR OTHERWISE
COMMUNICATED, EITHER DIRECTLY OR WITH THE AID OF A MACHINE OR DEVICE.
B. Copyright is a "BUNDLE OF RIGHTS" -- EXCLUSIVE RIGHTS IN
COPYRIGHTED WORKS includes the right:
1. TO REPRODUCE
2. TO PREPARE DERIVATIVE WORKS BASED UPON THE WORK
3. TO DISTRIBUTE THE WORK TO THE PUBLIC BY SALE OR
OTHER TRANSFER OF OWNERSHIP, OR BY RENTAL, LEASE, OR LENDING;
4. TO PERFORM THE COPYRIGHTED WORK PUBLICLY.;
5. TO DISPLAY THE COPYRIGHTED WORK PUBLICLY; AND
6. NEW: AS OF 11-95: IN THE CASE OF SOUND RECORDINGS, TO PERFORM THE COPYRIGHTED WORK
PUBLICLY BY MEANS OF A DIGITAL AUDIO TRANSMISSION (see article on Music
in Multimedia).
7. To protect these exclusive rights and to be able to enforce them, they MUST be
registered with the Copyright Office of the Library of Congress. See Links and the
Copyright Office link for more information. See articles on Protection
of Copyrights.
C. COPYRIGHT DOES NOT PROTECT THE IDEA ITSELF, IDEAS ARE AS "FREE AS THE
WIND". There is a "Common law copyright" in UNFIXED ideas, and this
subsists in the expression of the ideas on "canvas." Once fixed in a
tangible medium the protections and evidentiary effects of the Copyright Act
applies.
1. IT PROTECTS THE ORIGINAL EXPRESSION OF THE IDEAS.
a. In copyright law there exists in logic the
"IDEA-EXPRESSION DICHOTOMY", OR THE ''PROCESS-EXPRESSION, METHOD-EXPRESSION, AND
USEFUL-EXPRESSION distinctions.''
a. This seems esoteric but it is saying that since Copyright does NOT protect the idea,
but only the "fixed" expression of the idea, when someone "copies" an
idea, there is usually limited if any copyright protection for that
"copying". If, however, one copies the expression as fixed in some
tangible form, there can be infringement liability because there is a
"copyright" on the "fixed" original expression to copy.
For example if Doe tells a film director friend of his about his idea for a great film.
Later Doe watches a film that he swears was his idea. He needs to prove it
was "his": a copy of the script or treatment for the screenplay he wrote,
or a book he wrote containing these ideas or other form of tangible copyrightable matter
to show that he indeed wrote it and to claim for royalties or an injunction. Doe
also must register it or he cannot go to court to sue for the infringement. That is not
the end of the story but an example of the dichotomy.
What about Paraphrasing?
Paraphrasing is a matter of degree. Technically any copying and/or republishing of text is
an infringement. If however a very insubstantial or de minimus amount of text is
"taken" or if the rephrasing is to "comment" on the original work it
could fall into the defense of "FAIR USE", the topic
of a concentrated article. If you only take an idea from a book, film or other work it
would be arguably not a "copy" but you would be using the idea to further
expand. Don't forget - copyright protects against someone plagiarizing, not using ideas.
The basic premise is not to prevent the
expansion of use of ideas, for this would stifle creativity forever, but to prevent others
from using the fruits on one's labor to profit. one court stated, "It is hardly an
inducement to [an author] to do the years of research and scholarship needed to produce an
authoritative text if an untrained writer may paraphrase major portions and make a
competing text out of it"); Donald v. Zack Meyer's T.V. Sales & Serv., 426
F.2d 1027, 1030 (5th Cir.Ct. App. 1970) and again, "A resemblance in details of
setting incident, or characterization that falls short of close paraphrase may be enough
to establish substantial similarity and infringement." Landsberg v. Scrabble
Crossword Game Players, Inc., 736
F.2d 485, 488 (9th Cir. Ct. App. 1984).
Factual works differ.
Subsequent authors wishing to express an idea contained in a factual work such as a
history, mathematical book, scientific text, and films of historical events like
"Titanic" and "Amistad" often can choose from only a narrow range of
expression. For example, Landsberg's work states that "[t]he poor player simply
attempts to make as many points as possible each turn." The idea contained in that
statement cannot be expressed in a wide variety of ways. Just about any subsequent
expression of that idea is likely to appear to be a substantially similar paraphrase of
the words with which Landsberg expressed the idea. Therefore, similarity of
expression may have to amount to verbatim reproduction or very close paraphrasing before a
factual work will be deemed infringed. The Amistad film raised a similar issue, whether
the author of the book "Echo of Lions" could prove an infringement. The
court stated that it was not an infringement because, "Copyright protection does not
extend to historical or contemporary facts, material traceable to common sources or in
public domains, and scenes a faire." (Barbara CHASE-RIBOUD vs. DREAMWORKS, INC
45 U.S.P.Q.2d 1259, (9th Cir. Ct. App. 1997).
D. The Duration of Copyright:
1. Copyright lasted until November 1998 for the life of the
author plus 50 years. In order to more fully come into the modern e-world of long
lasting copyrights in billions of dollars in intellectual property, the U.S. has now
passed the "Sonny Bono Copyright Term Extension Act." (S. 505)
a. The Act extends the life of copyrights from
life plus 50 years to life plus 70 years for works that were created on or after January
1, 1978, the effective date of the Present Copyright Act of 1976. 17 USC Sec. 302.
b. The life of copyrights for works
created before January 1, 1978 is extended by 20 years from 47 to 67 years beyond the
original 1909 Act term of 56 years after publication.
NOTE: This will soon be a topic of a detailed new article on the Duration of Copyright and
other Modern Issues.
(1) In software, since there is a USE for the copyright material (the function of the software as used by hardware) there are several layers of this problem; the equation includes these three parts of the expression of ideas in software. Thus, one must "fix" the PROCESS, METHOD and USEFUL elements in a tangible medium before copyright can be claimed.
NOTES ON THE FUTURE:
Congress has just passed the Digital Millenium Copyright Act, changing the negative effect of holdings of many cases that have held that copyrights can be enforced even for a brief, though useful "copy" of the operating system of a computer that resides in the RAM (random access memory) of another, but unauthorized, computer. See MAI vs. Peak. There is one consistent theme regarding copyrights and the digital world, Internet, and the coming networked age, and that is CHANGE. Weekly copyright laws are challenged by the changing and rapidly advancing and expanding universe of Internet users. Not only is policing more important than ever but registration upon completion of a work for use on the Internet is a must. See Protection of Copyrights. The new Digital Millenium Copyright Act was passed October, 1998. Cases like MAI will be within an exemption to infringement of copyright since the act of copying an OS onto another computer for the legitimate licensor of the OS for the purposes of maintenance of the OS, is not an infringement under the proposed definition of the DMCA. A new article will soon appear on this topic.
The quantity of copyright infringements is on the increase due in part to the "easy" technology available to all to publish and "lift" images, film, video, photographs, text sounds and other matter. These are so many that they might not be as easy to detect. New "spiders" and "robots" are used to watch for a "watermarked" image files; the source for the image it finds may be a pirate has made an infringement. The complex world of infringement on the Internet is the subject for future articles. Stay Tuned!
For the best and most complete Copyright Basics Law Review See the Links Page>U.S. Government>The Library of Congress, Copyright Office.