Copyright is a legal device that gives the creator of a work the right to control how that work is used, including the right to reproduce, distribute, and adapt such work. Copyright protects a wide variety of works, including movies, video games, paintings, novels, software code, sculptures, photographs, and architectural designs.

To qualify for copyright protection, there are three basic requirements:

  1. the work must be "fixed in a tangible medium of expression." This means that it must exist in some physical form for at least one brief moment;

  2. the work must be independently created by the author; and

  3. it must have a creative element. Thus, the mere recital of facts, like the names and phone numbers in a telephone book, are not copyrightable. This is true even if the author spends considerable time and effort discovering previously unknown facts.

For works published after 1977, the copyright lasts for the life of the author plus 70 years. All works published in the U.S. before 1923 are in the public domain, while works between the two dates above are protected for 95 years from the date of publication. A work is considered "published" when the author makes it available to the public on an unrestricted basis.

The author (or copyright owner) can sue for any losses suffered on account of infringement (wrongful use of copyrighted material). However, before one may bring a lawsuit, the work must be registered with the U.S. Copyright Office. A work can be registered at any time, but "timely registration" makes it much easier to sue and recover money damages. Timely registration is registration either (a) within three (3) months of the work's publication date or (b) before any copyright infringement actually begins. Timely registration creates a legal presumption that the copyright is valid, and allows a monetary recovery without having to prove any actual monetary harm.

Fair Use Exception

The use of copyrighted material without permission is either fair use or infringement. "Fair use" is the concept that allows limited use of copyrighted material without permission. "Innocent infringement" is infringement where the infringer has good reason to believe that a use is fair, when in fact it is not. Many times innocent infringers do not have to pay any damages to the copyright owner. However, such innocent infringers are typically required to cease the infringing activity and/or pay the owner for the reasonable commercial value of that use (i.e., a license fee).

There are five (5) basic concepts to consider when analyzing whether a particular use of work is a fair use:

Copying or Creating: The purpose and character of the intended use of the material involved is the single most important factor in determining whether a use is fair. The issue is whether the use consists of merely copying someone else's work verbatim or instead using it to help create a distinct new work.

Competition with Source: The issue here is whether the use potentially or actually impairs the market for the copyrighted work. The focus should be the similarity to the prior work and whether the new work is targeted to the same market as the copyrighted work.

Attribution Is Not Enough: Attribution (giving credit to the author) and fair use are completely separate concepts. Fair use entitles the limited use of copyrighted material, with or without attribution. If the use is not fair, then attribution does not cure the infringement.

More Is Worse: The more material used, the less likely the use is fair. To preserve the free flow of information, authors have more leeway in using material from factual works (scholarly, technical, scientific works, etc.) than creative works (novels, poems, etc.). Contrary to popular belief, there is no absolute word limit on fair use. Copying 10 words from a 14-word poem would not likely be fair use, but copying 500 words from a 500,000-word work might qualify as fair use.

Quality And Quantity: The more important the material is to the original work, the less likely the use will be considered a fair use. In one famous case, The Nation (a magazine) obtained a copy of Gerald Ford's memoirs before their publication. In the article, only 300 words from the 200,000-word manuscript were quoted verbatim. The U.S. Supreme Court ruled that this was not a fair use because the material quoted (dealing with the Nixon pardon) was the "heart of the book...the most interesting and moving parts of the entire manuscript." Accordingly, pre-publication disclosure of this material would impair value or sales of the book.

 

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