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There are many misconceptions regarding copyright law. For example, there is
no need to register every single song a musician writes or even a compilation in
order to establish protection under copyright law. An original work receives
protection immediately the moment it is created, i.e., fixed in a
tangible medium such as a cassette tape or book. The fixation needs to be either
directly perceptible or able to be communicated with the aid of a machine or
device. There is no need for the original work to be "novel", just
that it originate from or be created by the author; The Copyright Act, 17 U.S.C.
§ 101 et seq., includes writers, musicians, artists, etc. as "authors".
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Copyrightable works include works from the following categories:
In addition, a "phonorecord", the
physical object in which a work of authorship is embodied, receives protection.
The word "phonorecord"; includes cassette tapes, CDs, LPs, 45 r.p.m.
disks, and other formats. The P in a circle on the side of your CDs or cassettes
stands for this protection.
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Federal copyright protection generally will not be given for works that have not been fixed in a tangible form of expression. Some examples are choreography, unless it has been filmed or the steps written down, or a speech that was not recorded or written down. These examples are not fixed in a tangible form. In addition, titles, slogans, names, familiar symbols or designs, lettering (type fonts), lists of ingredients, color, etc. are not copyrightable.
When there is only a very limited way in which to describe something, it may
not be copyrightable. For example, a musical note may not be copyrightable.
For policy reasons, musical notes; letters of the alphabet, like fonts; and
short phrases; etc., should not be taken away from public use. Ideas and
concepts, methods, systems, and procedures, discoveries and devices may not be
copyrightable either. However, the expression of the idea can be copyrightable.
For example, the written explanation or illustration of the idea may be
copyrightable. Works containing no original authorship, such as standard
calendars, rulers, lists or tables taken from public documents, consisting
entirely of common or public information cannot be copyrightable.
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The starting point for evaluating American copyright law is in the United States Constitution, where Congress was given the power "to promote the progress of science and useful arts, by securing, for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." U.S. Const. art. I, § 8, cl. 8. Federal copyright law is usually ample protection for the rights promised in the Berne Convention, although other forms of law may be used.
The Berne Convention is a multinational treaty concerning copyright protections. Federal copyright statutes often preempt many state intellectual property protections and other state claims, such as tort claims, e.g. conversion, civil theft, unfair competition or trade practices, etc. This means the federal copyright protections under certain circumstances can be pursued, but the state protections cannot. The 1976 Copyright Act explains that, subject to certain limitations, whether the work is registered or not, the owner of copyright has the exclusive rights to do and authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works, such as translations, condensations, dramatizations, sound recordings, art reproductions, musical arrangements, etc., based on the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale, lease, rental, or lending; (4) to perform the work publicly; and (5) to display the work publicly. Sound recordings are different from the underlying musical work, e.g. the musical composition.
The exclusive right of the owner of copyright in a sound recording is limited to the right to duplicate the sound recording in the form of "phonorecords" that directly or indirectly recapture the actual sounds fixed in the recording. In other words, the right to make CDs, albums, cassettes, etc. of the original sound recording. The exclusive right of the owner of copyright in a sound recording includes the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.
"Sampling" opened up a whole new can of worms concerning
infringement. See the Copyright Infringement chapter of this booklet.
Currently, most sampling problems are dealt with by contracts and agreements,
not by the courts. The exclusive rights of the owner of copyright in a sound
recording do not extend to the making or duplication of another sound recording
that consists entirely of an independent fixation though such sounds imitate or
simulate those in the copyrighted sound recording. This means a band of
musicians can play a song (a "cover" song) to make it sound exactly
the same way as the original band with a copyright in the sound recording (remember the "phonorecord" protection),
without infringing on the sound recording copyright. Remember, however,
that the band that is copying still must meet the requirements to use the
underlying musical work or else they will be infringing on that copyright
(©). Thus, the underlying musical work must be in the public domain or the
band that is copying must have a license, compulsory or agreed, to use it. Only
sound recordings fixed on or after February 15, 1972 receive protection under
the Federal Copyright Act.
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Fair use is a defense to copyright infringement, but the defense is very ambiguous. There are no clear lines delineating what is fair use and what is not. Fair use most commonly is raised in educational activities, literary and social criticism, parody, and First Amendment activities such as news reporting. The interests that may override the rights of the owners of the copyright include: the purpose and character of the use, including its commercial nature; the nature of the copyrighted work; the proportion that was "taken"; and the economic impact of the "taking". In addition, often intent and motives are relevant even though they should not be determinative.
The fact that the is private in nature is not supposed to be part of the fair use determination. However, if the use is commercial in nature, this fact is very important to a fair use determination, or rather that the use is not fair. If this sounds confusing, that is because the law, as decided by the courts, is confusing. The nature of the work is important in that, for example, if a portion of a book is being copied and used for educational purposes, it usually would be considered a fair use. However, if the book from which it was taken was made for educational purposes, then it would not support a fair use defense.
Note the real issue underlying this is the economic impact the fair use has on the owner's rights to the work. On that note, if a work is still unpublished, it will weigh heavily against fair use. Because the right to first publication and the first opportunity to exploit the work. In addition, the greater the creativity involved in creating the original, the less likely a fair use defense would be upheld for copying. If the original was merely labor intensive, i.e., collecting information, it is more likely that a fair use defense would prevail for copying or using portions.
The proportion of the work taken has to do with both the quality and the
quantity of the work taken. Sometimes even a small part of a work can be the "heart"
of the work. As discussed already, the economic impact the use has upon the
owner of the copyright's market is a very important consideration. The economic
impact is the single most important factor in determining fair use. The test for
whether a parody or satire is fair use is the purpose served by the taking and
the reasonableness of the taking in light of the purpose. In other words, did
the one claiming fair use take more than necessary from the original to conjure
up or recall the original in the parody? Often the parody defense of fair use is
used in conjunction with the free speech/ First Amendment defense. The First
Amendment allows the free communication of ideas; however, the free
communication of ideas is limited by the time, place, or manner of the
communication. The protections given to the copyright owner include exclusive
rights to the manner in which they communicated that particular idea, i.e., how
they expressed the idea. Remember, ideas are not protected, only the way
in which the ideas are expressed.
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The copyright laws allow for compulsory licensing. This means the
owner of a copyright must allow certain limited use of the copyrighted work,
upon payment of statutory royalties and compliance with statutory conditions.
This most often occurs in the use of musical compositions by other musicians.
Usually, however, an agreement is worked out between the musicians, thus,
avoiding the statute's requirements. That is why there are so many "covers"
recorded. The copyright owner does not have to agree to let you remake the
song, you just have to comply with the statute, including paying the royalties,
and they are "compelled" to license it to you.
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Copyright protection today lasts for the lifetime of the author plus fifty
years or the lifetime of the last author to die plus fifty years if the work was
a joint work, i.e., the work had more than one author. However, the length of
copyright protection differed in prior versions of the copyright act. If
you want to find out if a work you want to use still protected, you need to
check the law that was in effect at the time that work received copyright
protection. It may no longer be protected, even though it might have been
if it were copyrighted under the current version of the law.
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If an author produces a "work for hire", the employer of the
author owns the copyright. A "work for hire" only occurs when
there is either 1) a true employee-employer relationship, or 2) when the work
fell into one of the nine categories of § 101(2) of the Copyright Act and
was specially ordered or commissioned before delivery to the buyer and the
parties agreed in writing that the work was one for hire. The "work for
hire" protection lasts for seventy-five years after publication or 100
years after creation, whichever occurs first.
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There is a two-part test to determine if copyright infringement occurred. Just as with any case, direct, circumstantial, or a combination of both forms of evidence may be used. The first step is to determine if the work was copied. Direct evidence is rare in copyright cases and would usually include an admission or a witness to the copying. Usually circumstantial evidence is used to determine whether copying occurred. This is accomplished either by showing a striking similarity to the plaintiff's work or by showing access to the plaintiff's work plus substantial similarity. For this first step, often, expert testimony is used to explain the similarities and differences. In the case of sampling, there is no doubt that this first step will be determined in favor of the plaintiff and against the defendant.
The second step is to determine whether the copier took too much of the
work, thus infringing the rights of the copyright owner. The reason sampling is
not automatically considered infringement is because "taking" or
copying is allowed if you do not "take" too much. This second step is
determined by whether a layperson would think that too much was copied; expert
testimony is not used. This can weaken a plaintiff's case, since a lay
person may not be conscious of what is truly similar in a song, whereas an
expert could point out the similarities. If there is copyright notice on the
creation, the defendant cannot claim innocent infringement.
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Proper copyright notice includes 1) a "C" in a circle, ©, the
word "copyright", or "Copr." or in the case of phonorecords
only a P in a circle is specified; 2) the name of the owner of the
copyright; and 3) the year of first publication (with certain exceptions). For
example, "© 1997 Cafe Law" is correct because the three elements may
be in any order. Copyright notice must be affixed so as to give reasonable
notice of the claim of copyright.
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Publication means that the distribution of copies or phonorecords of a work
to the public by sale or other transfer of ownership, or by rental, lease, or
lending. The offering to distribute copies or phonorecords to a group of
persons for purposes of further distribution, public performance, or public
display, constitutes publication. A public performance or display of a
work does not itself constitute publication. A limited publication is "non-divestive"
and occurs when the circulation of a work is restricted both to persons who
receive it and the purpose for which it is circulated. For example, songs
submitted to producers and record executives for the limited purpose of bidding
on the project would be limited, not general publication.
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Remedies for copyright infringement include awards of damages for loss of
profits, actual damages, and statutory damages. In addition, and almost
always, injunctive relief is granted to stop any further infringement. The
law also provides for attorney's fees. However, no award of statutory damages or
of attorney's fees shall be made unless the copyrighted work is registered prior
to the infringement or within three months of the work's first publication.
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Although work is protected without registration or notice, the only way you can sue for copyright infringement is if you registered the work for copyright protection. It is required for the federal courts to have subject matter jurisdiction over a case. All this means is that prior to suit one must register the copyright, not necessarily prior to the infringement. Thus, if you create an original work, fixed in a tangible medium, in 1997, then publish it, you should put proper copyright notice on it immediately.
If someone infringes your work in 1998, then you can register your
copyright in 1998 or even later and then sue for the prior infringement.
You just have to register before you sue. Also remember, once you
register, you may receive statutory damages and attorneys fees for the
post-registration infringement. Also, if you register your work within
three months of the first publication, then you may receive statutory damages
and attorney's fees for all infringement You cannot sue in 1998 and then
register your copyright in 1999.
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Once a work loses copyright protection, whether due to expiration, not
putting notice on it in time under former copyright law, or whatever reason, the
work falls into the public domain. This means it is no longer protected
and anyone can use it for whatever they want. There are no real "moral
rights" protected.
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You do not want to have to litigate a copyright claim. I urge you to
contact any party whose work you wish to use or any party you feel is infringing
upon your work. Copyright cases are handled in federal court. They
take years to get to, they are very expensive, and the federal judges are
usually completely uninvolved with popular culture, so what may seem obvious to
you is not so obvious to them. Going to court is a gamble. Try to
come to an agreement with the other party.
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****The foregoing is not intended as an exhaustive review of copyright law. This information is not to be regarded as legal opinion applicable to all circumstances. Each factual scenario is different and requires unique and individual advice. The information provided herein should not be relied upon and any person with inquiry or concern should consult an attorney.
FURTHER INFORMATION
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