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Wherefore Thou Art #44
WHAT IT IS

This month I'm going back to the beginning, and will explain what copyright is and what it isn't. At least I'm gonna try. The basic primer. Copyright for dummies (no offense, please). Just the facts, Jack.

Copyright protects original creative expression, works of authorship. Music, literature, visual art, software programs, choreography, photography, films, stuff like that. Copyright doesn't protect single words or short phrases, titles, general design parameters (like magazine lay-outs), ideas, processes, lists of ingredients, and anything else that doesn't have a basic spark of creativity. For example, the Supreme Court ruled in the early 1990's that the white pages of the phone book didn't have enough creativity to warrant copyright protection.

There's something copyright scholars talk about called the "idea / expression dichotomy." An idea isn't protected, but the expression of the idea is. Say you have this brilliant way to make Iran lighten up about Israel. You write a book about it. Your book gets copyright protection, but the underlying idea remains unprotectable.

Copyright protects originality, not novelty. If somebody creates something independently that's identical to something that already exists, the new thing is protected by copyright, because it's original to its creator. You know, the whole a-thousand-monkeys-with-typewriters thing.

Copyright does not protect things that are purely functional, even though they might be highly original and creative. Purely functional things are covered by patents. Something can have both "purely expressive" and functional aspects, like say a knife with an ornate, decorative handle. The handle design gets copyright protection, but not the knife.

Copyright only covers works that are in fixed form. If you create a poem in your mind and then recite it at open-mike night, no copyright for you. You write it down. Bingo!

In fact, copyright arises automatically upon a work's creation in fixed form. You don't have to do anything but create in order to have copyright protections. I have clients tell me things like "I made this sculpture ten years ago but never copyrighted it." That's an impossibility, because the sculpture was "copyrighted" when it came into being.

So what does copyright get you? A bunch of things, actually. The right to make copies of your work. The right to distribute and sell your work. The right to display or perform your work. The right to make a derivative (based-on) work in the same or in different media.

These are all separate rights, and they can each be sold, licensed, allowed, limited or withheld as the copyright owner feels is appropriate. Say you're a painter with a hot painting. You can license to one company the right to make and sell giclee prints, another to make and sell postcards, and another to make and sell mousepads, all of the same painting. You write a great work of fiction, and you can license a studio the right to make a movie based on the work, another company to develop a theatrical version, and still another for a comic book version. There are an infinite number of ways that you can cut up the copyright pie to a single work.

The copyright in a work is separate from the work itself. This is obvious to a writer or musician-you sell somebody a copy of your book or CD and of course the buyer doesn't get the copyright to the work. It's maybe a little less obvious to a fine artist. You sell someone an original painting or sculpture and yes the buyer gets the original, but the buyer doesn't get the copyright to the work. Unless there is a clear writing signed by the artist that says otherwise, the copyright to the painting or sculpture stays with the artist. I have to temper this a little bit by saying that when an original work of fine art is sold, the buyer does generally get a implied limited license to publicly display the work, but otherwise, the artist retains the absolute and sole right to make and distribute copies of the work, to make derivative works based on the original, etc., even after the original is long gone.

If you're an employee and you create something in the course of your employment, the copyright to the work belongs to your employer. If you're a non-employee, an independent artist, you keep the copyright to your work, even if you are being paid by someone else to create the work. For a very limited number of types of works (a translation, a collective work (like a magazine), a supplemental work (like a preface), an audio-visual work, a compilation, a textbook), the copyright may go to the buyer, but only if there is a contract signed by both parties that states that the work is a "work made for hire." If the work doesn't fall into one of those categories listed above, the buyer doesn't get the copyright, even if there is a writing saying that the work is a "work made for hire."

Of course, you can sell your copyright to a work to the person paying for the work's created. An outright sale of a copyright is only effective if it is in writing, and signed by the person selling the copyright.

Copyrights last for a long time-the life of the author plus 70 years. If the copyright arises in an employment or work-made-for-hire situation, the copyright lasts for 95 years. Since copyrights to works outlive their authors, copyrights can be passed on to heirs via wills upon the death of the copyright owner.

If an individual creator makes an outright transfer of a copyright, after thirty-five years the creator can in most cases get the copyright back just by asking for it. This is a funny little tweak in the law, little known, and stuck there to protect individuals from improvident transfers of copyrights by creators, i.e. starving artists. If the copyright is still producing income after thirty-five years, the creator can reap the profits, in addition to whatever was paid for the original transfer.

Registering your copyrights with the federal Copyright Office isn't mandatory, but it's a good idea if copies of your works are going to be distributed or if your work is going to be displayed or performed before an appreciable number of people or posted on the web. Registering your work (which costs $45, and you can register an unlimited number of unpublished works on a single application) gives you a public record of your claim of copyright, and gives you greatly enhanced protections in the event somebody infringes your copyright.

OK, there you have it. This is obviously the tip of a very large iceberg. There's a ton of information about copyright, as well as all of the filing forms for download, at the Copyright Office's website located at www.copyright.gov.

© 2007 Paul Rapp
This article originally appeared in The Artful Mind and is intended to provide the reader with an awareness of intellectual property law and not legal advice.