As with patents, the framers of the U.S. Constitution saw the importance of protecting original works by authors and creators. Article 1, Section 8 authorized Congress to create laws "protecting original expressions expressed in a tangible form."
Nature of a Copyright
A copyright is the exclusive right granted to the author of an original work - including literary, dramatic, and artistic works - to reproduce the work for a set period of time. Owning a copyright therefore gives the holder a literal right to copy. The Copyright Act of 1976 states that copyright law applies both to published and unpublished works. The holder of the copyright has to the power to:
- reproduce the work;
- distribute the work, generally through sales or licensing;
- create derivative works based on the original creation;
- display and perform the work.
This means that copyright owners are protected from others performing the actions mentioned above and can sue to stop the infringement.
Works that are copyrightable include books, dances, songs, movies, art, menus, and computer software. To be protected, two requirements are often discussed:
- First, copyright law only protects original works of authorship. Copying information that is commonly known (i.e., recreating information from a public document) is not the product of a creative process and therefore cannot be copyrighted. Titles, names, common phrases, or slogans cannot receive copyright protection. Likewise, mathematical equations or ideas are not copyrightable. Thus, others can freely use the underlying ideas of copyrighted works. What is copyrightable, is the manner in which the idea is expressed.
- Second, only the tangible form of the creative expression is subject to copyright. Assume you are asked to give the devotional speech next week on campus. As you think about an appropriate topic (um, marriage, for example), your ideas are not in tangible form and cannot be copyrighted. Rather than write your speech, you memorize what you want to say. You then give the speech on Monday morning for a "dry run," to an audience of three janitorial students (students that are janitors - not students of janitor...ing). Again, you've spoken the words, but they are not yet in a tangible medium or form, so there can be no copyright protections available. But then, you give your speech at the devotional. Campus staff record and broadcast your speech, and hundreds of impressed students record as you talk. This means that your speech can receive copyright protection because it's been placed in tangible form through the various recordings, even if you didn't make the recording yourself.
In the second example, you may be wondering if your devotional meets the first criteria. After all, most devotionals pull extensively from the scriptures and comments given by other leaders of the Church of Jesus Christ of Latter-day Saints. However, you likely used a great deal of creative expression to pull in numerous quotes and tailored those statements of others to create something new - an original work with complexity and meaning. Therefore, most speeches, even though they derive much of the underlying message from others' copyright material, may still be copyrighted.
Copyright Creation and Length
Copyright is created once an original work is created in tangible form. Authors are therefore not required to register their work with any government office (as required with patents) to assert their rights under copyright law. However, registering a work through the United States Copyright Office provides many benefits, such as creating a public record of the copyright and the ability to sue others for infringement. This process is rather simple and fees start at $35.
Under the Sonny Bono Copyright Term Extension Act of 1998, copyright protections for works created after January 1, 1978 last for the life of the author plus an additional 70 years. The length of copyright protection was not always so generous. For many years, Congress continued to extend copyright terms, with Mickey Mouse playing a role.
Copyright Infringement and Damages
Whenever the form or expression of an idea is copied, infringement occurs. The reproduction does not have to be 100% the same. Rather, if a substantial part of the original is reproduced, copyright infringement has occurred. You, like many before you, are likely frustrated by the word substantial. You likely wish that Congress gave hard-line rules, like, for example, "anything over a 20% similarity to the prior work will be considered copyright infringement" (something I heard from my high school teacher). Unfortunately, we have no such rules and rather leave it to juries to determine if the copying was "substantial."
Direct infringement is easy to prove (e.g., VidAngel copying DVDs without permission and putting digital copies on their online store). Indirect copyright infringement is a little more difficult. This occurs where the infringer only copies parts or elements of the copyrighted work. In these cases, the copyright holder must show 1) that the infringer had access to the copyrighted work and 2) that the infringer engaged in sufficient copying to constitute substantial similarity between the works. This analysis is frequently used in disputes over similarity between songs. For an example, read this article about Radiohead's dispute with Lana Del Ray over whether there was substantial similarity between their songs. In the link, you can listen to the music in dispute and make your own decision as to Radiohead's claims.
Those who infringe may be liable for damages and in rare circumstances, criminal prosecution. The infringer may be liable for actual damages - the amount that the copying cost the copyright holder in lost profits or the amount that the infringer profited from the copying. The Copyright Act also provides for statutory damages that plaintiffs can seek in lieu of actual damages. These allow up to $35,000 per infringement and up to $150,000 for willful infringement. The federal government can also bring criminal charges. You've likely seen one of these warnings before watching your favorite movie:
The Fair Use Exception
One way to avoid liability for infringement is by using the frequently misunderstood "fair use" doctrine. This doctrine grants people or entities the ability to reproduce copyrighted materials without receiving permission or paying licensing fees. A major misconception about fair use involves the amount of the copyrighted material that can be copied. For example, some students tell me that they would be permitted to copy 10% of a literary work before they could be guilty of copyright infringement. This simply is not true; the law is much more nuanced.
The Copyright Act provides that fair use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of the underlying work. Determining whether the use of a copyrighted work qualifies for the fair use exception requires a balancing of the following factors:
- The purpose and character of the use. Is the use for commercial (infringement) or for education (fair use) purposes?
- The nature of the copyrighted work. Is the copyrighted work educational (fair use) or for entertainment (infringement)?
- The amount of the portion used in relation to the copyrighted work as a whole. This is a little obvious - did the person copy a little (fair use) or a lot (infringement).
- The effect of the use upon the potential market for or value of the copyrighted work.
These are purposefully ambiguous. The jury must weigh all of them like a scale and determine whether or not the copying constitutes infringement or fair use given all the facts. For more information on how the US Copyright Office analyzes fair use, please see their website.
Importance of Copyrights
As you might imagine, the value of copyright protection is enormous. You can likely imagine its value to production and publishing companies that rely on its protection to put out the art that we all enjoy. But the value is much more than just that. For example, when you read the following, see if you can figure out where you have heard it before:
"This broadcast is furnished as a public service by Bonneville Distribution. Any reproduction, recording, transcription, or other use of this program without written consent is prohibited."
Most of you probably recognized this as the (copyright) announcement prior to every General Conference session. Some of you may also "hear" the voice of Lloyd Newell, the current voice of Music and Spoken Word, as you read it. That's right! Churches, not to mention universities, nonprofits, accounting firms, and countless other individuals and businesses rely on copyright protection as they publish their creative works and push them into the world. The balance of how much the U.S. should protect holders of copyright is still in debate, but it's clear that copyright creates valuable protection for a very real asset.