WORDS
COPYRIGHT BASICS

DEFINITION OF COPYRIGHT
"Copyright" refers to the legal recognition by the laws of the United States that certain kinds of works of authorship are personal property. The Copyright Act gives to authors of "original works of authorship," both published and unpublished, including literary, dramatic, musical, artistic, and certain other intellectual works, the right to control the copying and distribution of their works. This page will focus on copyright basics for words, including literary works, periodicals and newspapers, and scripts. These basics generally apply, however, to other kinds of copyrighted works as well.

PURPOSE OF COPYRIGHT
The copyright law has an extremely important purpose: to give authors the economic and artistic incentive to create the intellectual property that all societies need. In order to do so, the Copyright Act gives the owner of copyright the exclusive right to make and to authorize others to make the following valuable uses of their work:

1. To reproduce the copyrighted work in copies or phonorecords;
2. To prepare derivative works based upon the copyrighted work;
3. To distribute copies or phonorecords of the copyrighted work to the public by sale or otherwise, or by rental, lease, or lending;
4. To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
5. To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
6. In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

It is illegal for anyone to utilize any of these exclusive rights of the copyright owner without proper permission, and only the copyright owner can authorize that permission. Mere ownership of a book, manuscript, or any other copy of a work does not give the owner the copyright. The transfer of ownership of a material object that embodies a copyrighted work does not by itself transfer any rights in the copyright. Therefore, if you purchase a book you can give or loan it to a friend, but the copyright law still prohibits photocopying or scanning the work onto a website and giving other access to the copies.

[Back to top]

WORKS PROTECTED BY COPYRIGHT
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or device. Copyrightable works fall into the following categories:

1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music ;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings;
8. architectural works.

These are broad categories. Computer programs and most compilations are "literary works"; maps and architectural plans are "pictorial, graphic, and sculptural works."

National Origin Of The Work
Copyright protection is available in the U.S. for all unpublished works, regardless of the nationality or residence of the author. Published works are eligible for copyright protection in the United States if any one of the following occurs:

1. On the date of first publication, one or more of the authors is a national or resident of the United States or is a national, resident, or sovereign authority of a foreign nation that is a party to a copyright treaty to which the United States is also a party, or is a stateless person wherever that person may be domiciled; or
2. The work is first published in the United States or in a foreign nation that, on the date of first publication, is a party to the Universal Copyright Convention; or the work comes within the scope of a Presidential proclamation; or
3. The work is first published on or after March 1, 1989, in a foreign nation that on the date of first publication is a party to the Berne Convention; or, if the work is not first published in a country party to the Berne Convention, it is published (on or after March 1,1989) within 30 days of first publication in a country that is party to the Berne Convention; or
4. The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act.

International Copyright Protection
Copyright protection in a given nation depends upon the laws of that nations. Authors cannot gain an "international" copyright that will universally protect his or her writings throughout the world. Most countries do protect foreign works, and many nations have signed international copyright treaties and conventions which recognize reciprocal protection among other signatory nations. The Copyright Office has a list of those nations that recognize reciprocal copyright protection with the U.S.

[Back to top]

WORKS NOT PROTECTED BY COPYRIGHT
The following materials are not protected under copyright law:

1. Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, (but written or recorded descriptions, explanations, or illustrations of such things are copyright protected).
2. Titles, names, short phrases, and slogans; mere listings of ingredients or contents. (Some titles and words might be protected under trademark law if their use is associated with a particular product or service).
3. Works that are not fixed in a tangible form of expression, such as an improvised speech or performance that is not written down or otherwise recorded.
4. Works consisting entirely of information that is commonly available and contains no originality (for example, standard calendars, standard measures and rulers, lists or tables compiled from public documents or other common sources).
5. Works by the U.S. government.

[Back to top]

OWNERSHIP OF COPYRIGHT
The copyright in a work of authorship immediately becomes the property of the author who wrote it at the moment it is put into fixed form. Only the author and those who obtain rights from or through the author (such as her publisher or her heirs) can claim copyright in the work. Works made for hire A work "made for hire" by an employee and certain kinds of commissioned works are considered to be authored by the employer or the commissioning party. The Copyright Act defines this special kind of work as:

1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Two or more authors
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Collections of works
Copyright in each separate contribution (such as a freelance article) to a periodical or other collective work is distinct from copyright in the collective work as a whole. Each author of the contribution owns the copyright to his or her contribution, while the compiler of the collective work holds the copyright to the whole collection.

[Back to top]

TRANSFERS OF COPYRIGHT
Any or all of the copyright ownerÕs exclusive rights or any part of those rights may be transferred or licensed. For example, an author might limit his or her grant of the exclusive right to publish and distribute copies of his or her books to a certain nation or to the English language. A transfer of exclusive rights must be in writing and signed by the owner of the rights granted or his/her authorized agent. Transfers of rights on a non-exclusive basis need not be made in writing.

Like other forms of personal property, a copyright can be conveyed by operation of law and can be bequeathed by will or pass as personal property under state inheritance laws. It is subject to state laws and regulations that govern ownership or transfer of personal property, including contract law.

Transfers of copyright are normally made by contract. The law does not require transfers of copyright ownership to be registered the Copyright Office.

Termination of Transfers
To correct the perceived injustice of authors giving up their valuable copyrights to works for minuscule payment, the 1976 Copyright Act made the copyright in works revert to the author (or his or her heirs) for the renewal term, if a renewal claim was registered in the 28th year of the first term. The current law drops the renewal requirement, except for works already in the first term of statutory protection when the present law took effect. Instead, the current law permits an author or his or her heirs to terminate a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits.

For works already under statutory copyright protection before 1978, the present law provides a similar right of termination for the newly added years that extended the former maximum term of the copyright.

[Back to top]

COPYRIGHT INFRINGEMENT
Anyone who exploits any of the exclusive rights without the copyright owner's permission commits copyright infringement. Infringers face severe civil (and possibly criminal) penalties: s/he can be judicially restrained from further use of the work, unauthorized copies could be impounded or destroyed, and the infringer could be liable for actual damages, profits earned from the unauthorized use of the copyright owner's work, and, if the copyright is registered, for statutory damages and attorneysÕ fees.

Proving Infringement
In order for a court to determine that a copyright in a work has been infringed upon it must find that: 1) the allegedly infringing work is "substantially similar" to the copyrighted work and 2) the alleged infringer had access to the copyrighted work. Although establishing "substantial similarity" can be somewhat difficult, courts look for similarities in the text, format, layout, sequence, and other elements of the works. If there is no direct proof of the alleged infringer's access to the original author's work, courts may look to indirect evidence of access, such as correspondence to or from a publisher or producer (i.e., submission or rejection letters) or the masthead of a publication to prove that individuals could have seen the author's submission. If a substantial portion of words are identical to those in the original work, then "access" may be presumed by the courts.

Online Infringement
The Copyright law was recently amended to help owners of copyright to get their works removed from infringing sites on the Internet, by requiring host OSPs to institute a no-infringement policy, provide an accessible agent to receive claims of infringement committed by its subscribers, and to remove the infringing material expeditiously after receiving notice, among other things. If the OSPs follow these rules, they can escape liability to the copyright owner. The infringing party, of course, remains fully liable for his or her acts of infringement.

The Copyright Office website (www.loc.gov.copyright) has a list of OSP agents and instructions for copyright owners whose works are being infringed online.

Defenses to Infringement/Limits to Copyright
The exclusive rights of the copyright owner are not unlimited. The Copyright law establishes some limitations on these rights.

Fair Use
One of the most important limitations on exclusive copyright is the doctrine of "fair use." The "fair use" doctrine allows limited reproduction of copyrighted works for educational and research purposes. The copyright law provides that the "fair use" of a copyrighted work, including reproduction "for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not an infringement of copyright. The law lists the following factors which courts must weigh in determining whether a particular use of a copyrighted work is a permitted "fair use," or is an infringement of the copyright:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
• the effect of the use upon the potential market for or value of the copyrighted work.

Although all of these factors are considered by courts, the last factor is often the most important in determining whether a particular use is "fair." Also, courts may weigh any other factors it chooses beyond these four.

When Should Permission to Copy be Sought?
Unless you are absolutely sure, relying on the doctrine of "fair use" to avoid seeking permission to copy a work is risky. Despite what you may have heard to the contrary, there are no set rules about what kind of use is "fair" and what is "infringing." For example, using less than a certain number of words from an author's work does not automatically constitute fair use. Courts apply the four factors on a case-by-case basis, and one court's interpretation of the factors could easily differ from another's. Thus, it is often impossible to predict whether or not a court would find any given unauthorized use to be "fair." The best course of action is simply to seek permission for all copied material you intend to use.

To obtain permission, you must determine who is the copyright owner of the material you intend to use, contact the owner, obtain permission to use the work in the territory and format you intend, and -- in some cases -- pay the owner a fee. The original publisher should be able to provide you with ownership information or even obtain and provide the appropriate permission. The records of the Copyright Office are open for inspection and searching by the public, and the Copyright Office will search its records on request for an hourly fee. Permission fees are negotiable and will vary depending on the amount and nature of the material you intend to use.

[Back to top]

Sample Permission Form

__________________ (the "Licensee") is researching, writing and publishing a book [or an article] tentatively entitled ____________________ (the "Work") to be published by ________________.

For valuable consideration ________________ [usually a fee or a free copy of the book, although sometimes neither is necessary], __________________ (the "Licensor") grants the Licensee the [non-]exclusive right to reproduce the following material (the "Material") in the Work in [specify medium, language(s), territory, time period]:

Title: ________________________
Author: _______________________
Publisher: _____________________
Pages: ________________________

Licensee shall not alter the Material without the prior written permission of the Licensor, and the Licensee shall include proper copyright notice and the following credit line in all versions of the Work: ________________________.

Licensor warrants that he [she] has the sole and unrestricted right to make the grant contained in this Agreement.

• Works that are published in the United States are subject to mandatory deposit with the Library of Congress. Deposit requirements for registration of published works differ from those for registration of unpublished works.
• Publication of a work can affect the limitations on the exclusive rights of the copyright owner that are set forth in the copyright law.
• The year of publication can determine the duration of copyright protection for anonymous and pseudonymous works (when the author's identity is not revealed to the Copyright Office) and for works made for hire.
• The right to win statutory damages and attorneys' fees from an infringer depends partly on whether a work was registered within three months after publication.
• When a work is published, it can bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. Copies of works published before March 1, 1989, must bear the copyright notice or risk loss of protection.

Example: © 1998 John Doe

• Registration establishes a public record of the copyright claim.
• Registration is necessary for works of U.S. origin and for some foreign works before an infringement suit may be brought.
• If made before or within 5 years of publication, registration will help establish that the copyright is valid and the facts stated in the certificate are true.
• If registration is made within 3 months after publication of the work or prior to an infringement of the work, a copyright owner will be eligible for statutory damages and attorneys fees if he or she sues for infringement and wins.
• Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

• If the work is unpublished, send one complete copy or phonorecord.
• If the work was first published in the United States on or after January 1, 1978, send two complete copies or phonorecords of the best edition.
• If the work was first published in the United States before January 1, 1978, send two complete copies or phonorecords of the work as first published.
• If the work was first published outside the United States, send one complete copy or phonorecord of the work as first published.