| Nanotreatise | Copyright |
Very briefly, what is a copyright?
A copyright is a government-granted exclusive entitlement over an original expressive work to the author of that work. Expressive works covered include written text, music, photographs, illustrations, and more. A work’s copyright lasts about 100 years. The legal entitlement arises automatically and immediately upon the creation of a copyrightable work.
Where does copyright law come from?
U.S. copyright law is almost exclusively federal, with federal courts having exclusive jurisdiction. Congress gets its power to grant copyrights from the Progress Clause of the Constitution: “The Congress shall have 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.
Copyright law is codified as Title 17 of the United States Code. The statute that forms the basis of current copyright law is the Copyright Act of 1976, which starts as § 101 in Title 17. It became operative on January 1, 1978. There have been many important amendments since then. And provisions of the Copyright Act of 1909 can still be relevant for cases concerning older works.
What’s the rationale for copyright?
The primary driving idea behind copyright, at least in American law, is that there needs to be some extrinsic economic inducement to get people to create expressive works and then to share their creations, including through publishers and other intermediaries.
The extent to which that incentive theory is actually true is unclear. Accumulated empirical evidence and contemporary theoretical understandings in psychology and economics suggest that, as a general matter, creative production and distribution will happen without the incentive of government-granted copyrights. Certainly many of today’s copyrighted works seem to depend upon the copyright incentive – expensively produced motion pictures being a prime example. Yet copyright appears largely irrelevant in inducing much of what is created and consumed these days – including YouTube videos, user-generated social media content, Wikipedia, blogs, open-source software, open-access textbooks, and various crowd-funded creative projects. (See note 1, below.)
Whether or not similar levels of creative production and distribution would happen without copyright, there is no doubt that copyright has shaped the world we live in. The existence of copyright explains much of the essential structure of the entertainment, media, and tech industries. And, in turn, the players in those industries have exerted pressure that has shaped copyright law into the form it has today – both through caselaw developments and statutory reforms.
So whatever might actually be the case in terms of the economics and psychology of creative expression, the best conceptual framework for making sense of U.S. copyright law is to think about it as a system designed to encourage expressive production and distribution, shaped into its current form by players in the entertainment, media, and tech industries who have sought to advance their own interests.
What is copyrightable?
To be copyrightable, an expressive work must be fixed in some tangible medium – written down on paper, painted on canvas, recorded to digital storage, etc. The categories of expressive works that are copyrightable include music, photographs, illustrations, audiovisual works, and sculpture. The broadest category, however, is “literary works,” which includes not only poems and essays but also seemingly un-literary things, such as blogged rants, computer source code, and legal treatises.
To be copyrighted, a work must be original, which means it must have some modicum of creativity. This is a very, very low threshold. Even a boring photograph of a frame full of beige carpeting would qualify. And the work must be a work of human authorship.
There are some very important exclusions from copyrightable subject-matter: Facts are not copyrightable. This means that databases of factual information are not copyrightable either. Words and short phrases are excluded from copyright as well.
Importantly, functional aspects of works are excluded. This keeps copyright entitlements from overrunning all aspects industry and design. Furniture and clothing designs, for instance, are mostly uncopyrightable. (See note 2.) Inventions can be the subject of patents – if they meet patent law’s myriad requirements. But an invention as such cannot be copyrighted.
While functional articles themselves are not copyrightable, they may incorporate separately copyrightable works. A t-shirt, for instance, is not copyrightable, but the screen-printed picture on it likely would be.
And finally, this is fundamental: An idea is not copyrightable. Only expression is. If you have a great idea for a screenplay, it’s not copyrightable. Your screenplay, when you write it, will be copyrightable because it will be expression. Even a synopsis of the story will be copyrightable, since it too counts as expression. But not the idea itself.
Gaining copyright protection and copyright notices
A reasonable question you might ask is, “How do you copyright something?” But hold on – you should avoid using “copyright” as a verb! Copyright is a legal status, not an action. It's understandable that people might assume “copyright” is a verb, as the word “copyrighted” is common and well-accepted. But “copyrighted” is best understood as an adjective meaning “under copyright protection,” not as a past-tense verb. And you can say “copyrightable,” but it means “capable of being under copyright protection.”
At any rate, to the extent you are wondering how you can get your original, expressive work under copyright protection, the answer is that you already have. Since January 1, 1978, every new copyrightable work is copyrighted immediately upon being fixed in a tangible medium. So as soon as you write something down, it’s copyrighted. And since March 1, 1989, using a copyright notice is not necessary. (Before then, it was possible for works to lose copyright protection by being published without notice. (See note 3.) This is why, at least in the 21st Century, it sounds silly to say a sentence like, “I’m going to copyright the screenplay I wrote.” If you wrote a screenplay, it’s already copyrighted.
A copyright notice can be useful for letting people know who owns a work. That way they know whom to ask for a license. And a notice can have some evidentiary effect in litigation. If you wish to put a copyright notice on your own 2022 work, this is correct:
© 2022 Eric E. Johnson
Or at least that's correct if your name is Eric E. Johnson.
Copyrights can be registered with the U.S. Copyright Office. Registration offers a number of advantages. If a work’s copyright is registered within three months of first publication or before a given act of infringement, then the copyright owner is eligible to recover attorneys fees and statutory damages, which can greatly increase the economic value of an infringement case.
Duration
Under the original Copyright Act of 1790, copyright lasted only 14 years, renewable for one additional 14-year term. Over the centuries, however, Congress has steadily extended copyright terms. Today, copyrights last about 100 years. For most works, it’s the life of the author plus 70 years. For works with a corporate or anonymous author, copyright expires 95 years after the year of first publication or 120 years after creation, whichever comes first. (See 17 U.S.C. §§ 302, 305.)
The Public Domain
Works not protected by copyright are in the “public domain,” and are free for anyone to use.
Sometimes people talk about works “falling into” the public domain, like it’s a sad occurence. Many people, however, think it’s a wonderful thing. That’s because when something is in the public domain, it is free of legal entitlements that would prevent people from making productive use of it. Indeed, a key part of the social bargain of the copyright system is that copyright terms are supposed to eventually expire, leaving formerly copyrighted works to enrich the public domain. (The Constitution, in fact, as quoted above, specifically provides that copyright entitlements must be for “limited times.”)
Many works entered the public domain in decades past because of a lack of renewal registration or because of publication without proper notice. The public domain can no longer grow in this way, however, since newer legislation has eliminated formality requirements for currently in-force copyrights.
Perhaps the biggest current input to the public domain in the United States is works of the federal government, which are exempted by statute from copyright protection. (See 17 U.S.C. § 105.)
Ownership, Licensing, and Transfers
The initial owner of a copyright is the author. In some very particular cases, the author of a work may be an employer of the person who actually did the creative work. This is called a work made for hire. (See 17 U.S.C. §§ 101, 201(b).) But do not think that because you hired someone to create a copyrighted work and paid for their labor that you will end up owning the copyright. The requirements for works made for hire are idiosyncratic and strict. Indeed, the law in this area departs considerably from expectations. (See note 4.)
The ownership of a copyright can be transferred by assignment with a signed writing. (See 17 U.S.C. § 204.) And a portion of the copyright – limited by territory, term, or a particular category of rights – can be transferred in a signed writing as well, a grant called an exclusive license.
A nonexclusive license – which just is a fancy term for permission – can be granted with or without a writing and can even be implied-in-fact by the circumstances.
Exclusive Rights and Infringement
Exercising one of the exclusive rights of a copyrighted work is infringement. The main exclusive rights of copyright are: to reproduce, to sell and distribute, to publicly perform, to publicly display, and to prepare derivative works. (See 17 U.S.C. § 106.) There is no intent or mens rea requirement. Copyright is essentially a strict liability offense.
Although the elements of copyright infringement have many different formulations and go by varied names, an infringement claim for the reproduction right (“to reproduce”) always has these three essential components: (1) a valid copyright, (2) actual copying, and (3) material appropriation / substantial similarity.
I’ve already discussed above what’s needed for a valid copyright. The element of actual copying means what it says: The infringer must have derived her or his work from the plaintiff’s to be liable. If an alleged infringer independently created the accused work, then there is no copyright infringement.
The final element is the trickiest. First, what to call this element is a huge problem. Courts generally use the term “substantial similarity” for this element. But they also use that exact same phrase when discussing indirect proof of actual copying under the second element, which is an entirely different thing. A good distinguishing label for the third element would be “appropriative similarity,” but courts have not called it that. A few very recent cases have used the phrase “material appropriation,” so maybe that is the best for now. At any rate, the point of this third element is that for copyright infringement it is not necessary that the defendant’s work be exactly the same as the plaintiff’s work. That is, a work doesn’t need to be a literal copy to be infringing. Yet there must be enough similarity that the copying counts as an infringing appropriation. How much is enough? How is this determined? These remain difficult questions for copyright law.
Fair Use and Other Limitations
The center-stage defense against copyright infringement is fair use. (See 17 U.S.C. § 107.) It’s the one doctrine of copyright everyone has heard of. But despite its familiarity, it remains mysterious. The boundaries of fair use are frustratingly fuzzy, and predicting whether a particular use will be held a fair use is often impossible.
Also blurry is where exactly fair use fits into infringement litigation as a procedural matter. Is it an affirmative defense? Is it a question for the jury or the judge? These questions are surprisingly unsettled. (See note 5.)
The aim of the fair use limitation on copyright is to provide cultural breathing room. It furthers people’s abilities to criticize and comment, and to learn, experiment, and engage. Courts look to several factors in making a fair use determination, including the nature of the use (e.g., educational, scholarly, journalistic, and artistically transformational uses are often looked on favorably), how much of the copyrighted work has been taken, and the effect on the market for the copyrighted work.
Another crucial limitation is the defense of license, including implied license. If you buy a lawn gnome based on a newly sculpted design, it is almost certainly covered by copyright as a sculptural work. Does that mean you can’t put it on your front lawn? After all, one of the exclusive rights of copyright is public display. Luckily, however, you can say that included with the sale of a lawn gnome is an implied license for you to publicly display it.
Finally, the first-sale defense allows the owners of lawfully acquired copies of a copyrighted work to sell or give away those copies to others, notwithstanding the copyright owner’s exclusive distribution right.
Complications
Copyright law has many twists and turns that this brief primer can’t cover or even gesture toward. Title 17 is so complex, in fact, some have likened it to the tax code. A few of the areas in which copyright is particularly complicated are music and sound recordings, internet transmission and digital storage, television broadcasting, the duration of older copyrights, and the recapture of copyrights transferred away in decades past. So, although broad principles inform a great swath of copyright law, it is, for better or worse, an area where Congress has provided a great deal of specificity, largely at the urging of particular industry groups. So dive into the details before you satisfy yourself you’ve got the analysis right in any question involving copyright law.
Notes:
Note 1: I've written about these issues. See Eric E. Johnson, The Economics and Sociality of Sharing Intellectual Property Rights, 94 B.U. L. Rev. 1935 (2014); Eric E. Johnson, Intellectual Property and the Incentive Fallacy, 39 Fla. St. U. L. Rev. 623 (2012).
Note 2: A recent U.S. Supreme Court case is important in this context, holding that some designs on clothing – that many people would have thought were uncopyrightable – were separable, non-functional, and thus copyrightable. See Star Athletica v. Varsity Brands, 580 U.S. ___, 137 S. Ct. 1002 (U.S. 2017). An abridgement is available here: http://ericejohnson.com/docs/Star_Athletica_v_Varsity_Brands_abridgment.pdf [pdf].
Note 3: For a legendary calling-out in this arena, see Douglas A. Hedenkamp, Free Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of 1909, 2 Va. Sports & Ent. L.J. 254 (2003) (concluding that because of a lack of an adequate copyright notice on the film Steamboat Willie, the early version of Mickey Mouse is now in the public domain).
Note 4: For learning more about works made for hire, you can look at U.S. Copyright Office, Circular 9: Works Made for Hire, https://www.copyright.gov/circs/circ09.pdf [pdf].
Note 5: For illuminating discussions, see Lydia Pallas Loren, Fair Use: An Affirmative Defense?, 90 Wash. L. Rev. 685 (2015); Amanda Reid, Deciding Fair Use, 2019 Mich. St. L. Rev. 601 (2019).