The Basics of Copyright

Introduction

Copyright law follows certain general principles that are not difficult for the layman to understand. Of course, these principles are not always easy to apply in real life. There are always new twists and close calls. But you can be reasonably knowledgeable about the broad outlines of copyright law by working through the basic lessons addressed in this book.

I am presenting the information in a course format because it is not likely to be particularly useful as a reference. Reference materials on copyright can be found in government publications and various other books. Law involves the application of principles to specific facts, and while you can look up the principles, you gain understanding from the application. So in each chapter that follows, we will discuss the principles and apply them in hypothetical situations. The Quizzes present these hypotheticals not to test your knowledge but to invite you to think about various situations and apply the law to a set of facts.

I have also included some illustrative court opinions (summarized and excerpted) to give you a sense of how the law has been applied and developed.

Let’s get a few things clear before we begin.

1. I have a law degree and practiced in the field of copyright law for many years.

2. While I am a lawyer, I’m not your lawyer. The course is not intended to provide you with legal advice but rather to give you an educational tool. When you have a legal question, you should consult your own lawyer. Maybe having read this book will allow you to have a more productive conversation with your lawyer.

3. The world is full of misinformation, and that seems particularly true when it comes to copyright. A folklore of copyright has perpetuated itself for many years. Much of what you might read particularly online is misleading, if not flat-out wrong.

4. I am going to talk about copyright law in the United States. There are many basic principles of copyright law that apply across much of the world. Indeed, many recent developments in copyright law have been aimed at harmonizing the laws of various countries. But when I say the law, I don’t mean the law in France or Malawi. If you are dealing with the laws of another country, understand that some things may be different.

I encourage you to read each chapter sequentially and not jump around looking for a quick answer. I present the material in a particular order that I think will ultimately be more helpful to you.

So let’s get started.

QUIZ

1. True or false. Neither Hank Reynolds nor anyone else associated with this course or website is your attorney.

2. The legal concept being discussed in this course is known as:

a. Copywrite

b. Copyright

c. Copywright

d. Copyrite

3. True or false. You understand that the information and materials presented in this course are not intended to be legal advice, but rather are merely for general educational purposes.

Answers:

1. True

2. b

3. True

1. What Is It?

Congratulations. You have a perfect score so far. Why were you asked to spell copyright? It has to do with the folklore that I mentioned above. I can’t tell you how many times I see people presenting information about copyright who can’t even spell it correctly. So if someone offers to tell you all about copywrite law, run the other way.

The misunderstandings about copyright law usually have some basis in fact. Misspelling copyright as copywrite is not irrational, it is merely wrong. After all, copyrights are about writing, sort of. But half-truths can lead to trouble.

Let’s define the term. A copyright is the legal right to control the making of copies. It is an exclusive right, meaning the person who holds the copyright is the only person who can make copies or authorize others to do so. I own the copyright in this book. I can make copies of it, but you cannot. You own a copyright in the photos you take on your smart phone. (Did you know that?) You can make copies of them, but I cannot.

The right to make copies, however, needs to be understood more broadly. The copyright owner enjoys a bundle of rights. Those rights essentially cover:

Reproduction

Adaptation

Publication

Performance

Display

So, in addition to preventing others from making copies (reproductions), a copyright owner can control whether others can adapt his work for a different medium (e.g. turning a book into a movie). He can decide when and how to publish the work. He can allow or disallow performances of his work if the work involves the performing arts (music, dance, drama). And he can control the display of works of visual art (painting, sculpture, photography). The copyright owner can prevent all others from infringing any of these rights.

We will call anything that is subject to copyright a work. A work results from the creative efforts of an author. And we will frequently use the term author to refer to anyone who has created a work. In other words, when discussing copyright, the term author includes composers, painters, writers, choreographers, photographers, and other creators. The term work includes music, paintings, choreography, photographs, sculpture, software, and other media. In general, copyright law applies across the full spectrum of creative works.

Reproduction of a work may take various forms. If you take an article from the newspaper, place it on the photocopier, and generate a copy, you have reproduced the original without adding anything new or creative of your own. If you attempt to recreate a painting using your own canvas, oils, and brushes, you will be copying even though your painting may be distinguishable from the original. Whether any of these acts violate the author’s legal rights depends on the circumstances.

If you take a photograph of a painting, have you reproduced the painting? Yes. You have adapted the painting to a new medium, but the photograph contains the creative content found in the painting. If the photograph contains some creative content of its own (as most photographs do), copyright law will call your photograph a derivative work. It is a newly created work with some original content that copies the protectable expression of a pre-existing work.

There are other ways a work can be reproduced. A musical work might be written on paper, but the copyright covers more than the written notation. It covers the music itself—the sounds that the notation represents. So a performer who plays the music is reproducing it. Does copyright law say he can’t do that? The answer to many questions like this can be unsatisfying: It depends.

Rest assured that if you buy the sheet music of a song, take it home, and play it on your piano, you are not breaking the law (even though you are reproducing the music). But if you want to perform the song for an audience in a concert hall, you will need to consider the copyright consequences.

Copyright law covers public performances, things that go beyond a typical gathering of family and friends in your home. The same holds for the display of visual art. Copyright law controls public displays, not where you hang a painting in your living room.

While we are thinking about the term public, notice that the bundle of rights listed above includes publication. We generally think of a publisher as someone who prints and sells books or periodicals to the public. But the term encompasses all kinds of publication: websites, downloads, broadcasting, distribution of movies—anything that takes a creative work and makes it available to people outside a very limited circle. So publication can include small and seemingly insignificant acts: tacking your photo to a bulletin board at the supermarket, giving a copy of your master’s thesis to the school library, or performing your song on the street corner.

The publication right becomes particularly important when we consider first publication, how the work is introduced to the public. The initial releases of movies and books, just to take two examples, are carefully timed and planned to make the biggest impact on the market.

Obviously, we need to examine what lies at the heart of copyright law: the nature of the thing being protected. So read on.

QUIZ

1. Choose the correct spelling:

a. Copyright

b. Copywright

c. Copyrite

d. Copywrite

2. Which of the following does the copyright owner not have the right to control:

a. Display

b. Adaptation

c. Reproduction

d. Publication

e. Criticism

3. Bob writes an adventure story for boys that becomes a best-seller. Fred sees that the story could be made into a successful motion picture. Fred has the money to fund a movie, but Bob does not. On these facts,

a. Fred cannot make the movie without Bob’s permission.

b. Fred can make the movie without Bob’s permission.

c. Fred can make the movie without Bob’s permission, but has to pay Bob a portion of the profits.

4. Fred makes the movie. He then creates an advertising poster with pictures showing action scenes from the movie. Bob wants to re-release the book using the action photography as a new book cover. On these facts,

a. Bob cannot use the action photos without Fred’s permission.

b. Bob can use the photos because they depict scenes from his story.

c. Bob can use the photos without Fred’s permission, but has to pay Fred a portion of the profits.

5. Fred makes the movie with Bob’s permission. Fred then makes arrangements for the movie to be shown exclusively in theaters owned by the Acme Cinema company. Bob, however, believes the Acme Cinema company is socially irresponsible and does not want the movie shown in their theaters. On these facts,

a. Bob can prevent the film from being shown in Acme theaters.

b. Bob can prevent the film from being shown in Acme theaters if he can prove they are socially irresponsible.

c. Bob can require that the film be shown in theaters owned by other companies as well.

d. Copyright law does not give Bob control over where the film is shown.

Answers:

1. a

2. e

3. a

4. a

5. d

Discussion: Fred needs Bob’s permission to make the movie. Bob owns the copyright in the story and can allow Fred to make a movie or not. Any money that Fred pays to Bob will be the result of a contract between the two of them. Copyright law says nothing about what the terms of that contract ought to be.

Once Fred has Bob’s permission, Fred can create a film. The copyright in the film will belong to Fred, and it will be separate from Bob’s copyright in the story. Fred’s copyright will give him rights in the film but not in Bob’s story. Similarly, Fred will own the copyright in any stills from the film or other photography created by Fred. Bob cannot reproduce Fred’s photography on his book cover without Fred’s permission.

Fred’s copyright in the film includes the right to control how and where the film is displayed. Bob’s copyright in his story does not give him control over the publication and distribution of the film. Once a copyright owner gives permission for another to make a derivative work (e.g. Fred’s movie), the new work has its own separate copyright.

The copyright owner can decide whether to allow someone to do anything covered by his bundle of rights. There is generally no requirement that he give permission to anyone regardless of the situation or sum of money involved.

CASE LAW

A caveat for the reader: Court cases provide one of the best guides for understanding an area of law. In them judges explain the relevant facts and the reasoning behind their conclusions. But case opinions can be complicated. The judge is writing for the benefit of other lawyers and will often use legal terminology that may be unfamiliar to the layman.

The cases presented in this book in significantly condensed form may provide additional insight for readers who wish to dig a little deeper into the topic. Readers may choose to skip them altogether and proceed to the next chapter. Other readers may want to view the full text of the opinions. Judicial opinions are in the public domain and can be accessed online by searching the case citation. Your local courthouse likely has a law library open to the public where these cases can also be found.

Case Background

George Aiken owns a fast food restaurant, catering to both dine-in and take-out customers. He plays the radio in his restaurant, and the radio broadcasts are heard by customers and employees. The radio station has