WestLord & Associates

What Is Copyright?

Copyright is a legal framework that grants a collection of exclusive rights to the creators of original works of authorship, such as literary works, songs, movies, software, and more. These rights include the ability to reproduce the work, create derivative works, distribute copies, and publicly perform or display the work.

To grasp how these rights function, it’s helpful to envision them as tools in a toolbox, with each tool serving a specific purpose. A copyright holder can choose when and how to use these tools, much like a craftsman selecting the right tool for a job. In essence, copyright empowers the owner to decide how their copyrighted works are made accessible to the public.

Photo by Suzy Hazelwood

The Constitutional Foundation of Copyright: The foundation of copyright protection is rooted in the U.S. Constitution. The framers believed that securing exclusive rights for authors to their creative works for limited periods would “promote the progress of science and useful arts.” The core purpose of copyright is to incentivize and reward creators by granting them property rights. This, in turn, encourages the creation and dissemination of creative works that might not otherwise exist or reach the public.

However, it’s essential to recognize that copyright law imposes no obligation on creators to make their works available. While copyright is intended to enrich the public by providing access to creative works, it does not mandate that creators share their creations.

Despite its protective scope, there are limitations on the rights granted to copyright owners. Certain circumstances allow the use of a work without the copyright owner’s permission or payment. Here are the three fundamental requirements a work must meet to qualify for copyright protection:

1. Originality: The work must be original, meaning it must be independently created and not copied from another source. While the work need not be novel, unique, or highly imaginative, it must demonstrate a minimal level of creativity to satisfy the originality requirement. Few creations fail to meet this threshold.

To qualify for copyright protection, a work must meet the criterion of originality. Here’s a closer look at what this means:

  • Independently Created: The work must be independently created by the author, without direct copying from another source. It doesn’t mean the work has to be entirely novel or groundbreaking. It simply must not be a verbatim copy of someone else’s work.
  • Minimal Creativity: While originality is crucial, it doesn’t imply that the work needs to be highly imaginative or innovative. Even a minimal degree of creativity is sufficient. For example, a short poem, a simple photograph, or a basic piece of software code can meet the originality requirement if they exhibit some form of creative expression.
  • Not Fact-Based: Copyright protects the expression of ideas, not the ideas themselves or factual information. Therefore, purely factual works, such as phone directories or raw data, typically do not meet the originality requirement. However, if a database or compilation of facts involves creative selection, arrangement, or presentation, it may be eligible for copyright protection.

2. A Work of Authorship: Copyrightable subject matter encompasses a wide range of works, including literary, musical, and audiovisual works, derivative works, compilations, and more. It must be a product of creative expression falling into one of these categories to qualify.

Copyrightable subject matter includes a wide range of creative works that fall under different categories. Here’s an overview of what qualifies as a work of authorship:

  • Literary Works: This category encompasses various forms of written expression, including novels, essays, poems, and computer code (as long as it meets the originality requirement).
  • Musical Works: Compositions and musical scores are protected by copyright, allowing composers and songwriters to control the use and distribution of their music.
  • Audiovisual Works: Movies, television shows, and other audiovisual productions qualify for copyright protection. This covers not only the script or screenplay but also the entire visual and auditory elements.
  • Derivative Works: These are new works that are based on existing copyrighted works, such as adaptations, translations, or remixes. Derivative works can be protected as long as they meet the originality requirement and are created with the permission of the original copyright owner or fall under fair use.
  • Compilations: Collections of data, facts, or other materials can be copyrighted if they involve creative selection, arrangement, or organization. An example is an anthology of poems selected and arranged in a unique order.

3. Fixed: To fulfill the fixation requirement, a work must be stored in a tangible medium of expression. Protection attaches automatically the moment a work is fixed, meaning it is sufficiently permanent or stable to be perceived, reproduced, or communicated for a period longer than transitory.

The fixation requirement is an essential aspect of copyright, ensuring that the work is recorded in a tangible medium. Here’s a closer look:

  • Tangible Medium: To meet this requirement, the work must be stored in a tangible medium of expression. This means the work must exist in a physical or digital form that is sufficiently permanent or stable to be perceived, reproduced, or communicated for a period longer than transitory. Examples of tangible media include paper, digital files, film, and recordings.
  • Perceived and Reproduced: Fixation allows the work to be perceived, reproduced, or otherwise communicated. In practical terms, it means that someone can read, listen to, watch, or interact with the work. Without fixation, copyright protection cannot be established.
  • More than Transitory: Transitory duration refers to a temporary state that is fleeting or momentary. For instance, a live performance that isn’t recorded would not satisfy the fixation requirement because it is not preserved for more than a transitory duration.

Importantly, there is no obligation for a copyright owner to register their work with the U.S. Copyright Office or include a copyright notice to secure protection. However, registering a work offers several benefits.

Duration of Copyright Protection

Generally, a copyrighted work is protected for the author’s lifetime plus an additional seventy years. In cases of joint works, protection lasts for the life of the last surviving joint creator plus an additional 70 years. For works made for hire, anonymous, or pseudonymous works, copyright endures for either 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter. When a work’s copyright term expires, it enters the public domain.

The duration of copyright protection defines how long the exclusive rights granted to the copyright owner will last. Copyright protection is not perpetual, but it offers substantial coverage over a significant period. The duration depends on various factors, including when the work was created, the type of work, and whether it falls into specific categories. Here’s a breakdown:

1. Copyright Term for Works Created After January 1, 1978: For works created on or after January 1, 1978, the copyright term is generally as follows:

  • Author’s Life + 70 Years: The primary rule is that copyright protection lasts for the life of the author plus an additional 70 years. This means that during the author’s lifetime, they have exclusive rights to their work, and after their passing, their estate or heirs continue to hold those rights for an additional 70 years.
  • Joint Works: For works created by multiple authors jointly, the copyright term extends for the life of the last surviving author plus 70 years.
  • Works Made for Hire: In the case of works created as “works made for hire” (where the work is created by an employee within the scope of their employment or is specially commissioned), copyright protection endures for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
  • Anonymous or Pseudonymous Works: For works with no identified author or where the author uses a pseudonym, copyright protection lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. If the author’s identity becomes known during this period, the copyright term may shift to the author’s life + 70 years.

2. Copyright Term for Works Created, Published, or Registered Before January 1, 1978: The copyright term for works that existed before January 1, 1978, varies based on several factors, including whether the work was published, the date of publication, and whether the copyright was renewed. Here’s a general overview:

  • Published Before January 1, 1978, and Still in Copyright: If a work was published before January 1, 1978, and is still in copyright (has not entered the public domain), its duration extends for 95 years from the date of publication.
  • Published Before January 1, 1978, and Not Renewed: For works published before January 1, 1978, that were not renewed, copyright protection lasts for 28 years from the date of publication, with an option to renew for an additional 67 years, totaling 95 years.
  • Unpublished or Published After January 1, 1978: If a work was created but neither published nor registered before January 1, 1978, the copyright term is the author’s life + 70 years.

3. Duration for Certain Categories of Works: Sound Recordings: Sound recordings fixed before February 15, 1972, are subject to a different set of rules. Copyright protection lasts for 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

4. Public Domain: When the copyright term expires, the work enters the public domain. In the public domain, the work is no longer protected by copyright, and anyone can use, reproduce, and distribute it without seeking permission or paying royalties.

In conclusion, copyright is a vital tool for fostering creativity and innovation, ensuring that creators are rewarded for their efforts, and providing the public with access to a diverse range of creative works. Understanding the fundamentals of copyright, its limitations, and the benefits of registration can empower creators and users alike in navigating the complex world of intellectual property.