Copyright LawIntellectual property articles at JohnBandler.com: Overview, copyright, trademark, patent, trade secrets

by John Bandler

Copyright law essentially protects certain works from improper copying, and we will introduce it here, as part of my series on intellectual property law. In another article we introduce intellectual property (IP) law and the four types of IP law: copyright, trademark, patent, and trade secrets.

Copyright is a type of intellectual property that protects original works of authorship that have been fixed into a tangible form. Copyright law protects many different types of works, including books, blog posts and online articles (like this), paintings, photographs, music, recordings, plays, and more. Intellectual work and effort went into crafting those words, drawings, or music, and copyright law protects them. It does not protect ideas, just what was created and affixed to some type of medium.

Why is there copyright protection?

There are two main rationales for granting copyright protection. The first is that creators should be encouraged to create new works (writings, music, and art) with the knowledge that it will be afforded some degree of protection, and so that they can reap the rewards of their creation. This is known as the "natural rights" theory, that a person should have a natural right to benefit from the fruits of one's intellectual labor. The second rationale is "utilitarian", that granting copyright protection for the creator is good for society because we all benefit when people create books to read and movies to watch.

Whatever the reason, the legal protections mean these created works are intellectual property that can be owned, sold, or licensed. If the copyright is valuable, this transfer will be accompanied by payment, and this could occur at a number of stages. Contracts, licensing agreements, and terms of use will set forth legal terms, and payment is made at various stages. The author and actor get paid, the reader or viewer pays to purchase the book or movie, and so on.

Where does copyright law come from?

Copyright protections come from federal law which includes both civil and criminal provisions. The criminal provisions mean some copyright infringers could be subject to arrest and prosecution. Generally this applies only to those who pirate copyrighted works (often music or videos) and then sell them commercially for profit. On the civil side, a copyright owner could sue the offender for copyright infringement, seeking monetary damages or other court orders such as an injunction. This article focuses on civil provisions.

Requirements and options

There are three requirements to obtain copyright protection:

  • Appropriate subject matter
  • Original work
  • Fixed to a medium (e.g., paper, canvas, vinyl, CD, DVD, digital).

Then, the copyright owner can consider these two steps to enhance their legal rights and protections:

  • Provide notice to the viewer (such as with the word "copyright" or using the copyright symbol ( © ), and including the owner's name and date)
  • Register the work with the U.S. Copyright Office by filing a copy of the work and paying a small fee.

Think of copyright notice as a "No Trespassing" sign, except instead of saying don't enter this property, it warns others that they are not allowed to copy the work. This notice can be important because sometimes a defense to copyright infringement is innocent or accidental reproduction of copyrighted material.

Registration is generally required before any civil lawsuit can be filed, and if the registration is done before the infringement (copying) occurred it enhances the penalties that can be obtained. Where registration occurred prior to infringement, the copyright owner may be entitled to statutory damages and attorney's fees. The statutory damages are up to $150,000 per infringing work.

Let's quote, cite, and discuss some legal details

That's the basics, now some more details.

Federal copyright law starts in the U.S. Constitution, which empowers Congress to protect author's works.

The main federal law is The Copyright Act of 1976, as amended over the years, and is within Title 17 of the U.S. Code (links to the statute are at bottom).

Title 17, section 102 of the United States Code (17 U.S.C. §102) is the main section on copyright law. It indicates what is protected and that the protection does not extend to ideas.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include 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; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
17 U.S.C. § 102

Copyright law grants copyright owners six exclusive rights:

  • Reproduction of their own work
  • Derivative works created based on their original work
  • Distribution of their work
  • Public performance of their work
  • Public display of their work
  • Public performance through digital means
    17 U.S.C. § 106

Copyright protection is not without limit and is not forever. The duration of copyright protection extends for the life of the author plus 70 years. Put differently (and more morbidly) copyright protection extends until 70 years after the author dies. If it is a work for hire (on behalf of a corporation) then protection is 95 years from publication or 120 years from creation. Once copyright protection expires, the work goes into the "public domain", and can be used by anyone.

Speaking of public domain, most federal government publications (e.g., public works, including court decisions) are in the public domain, and free to use. This makes sense, since tax dollars paid for that work which was done on behalf of the public.

Fair use of copyrighted materials

While copyright law protects against copying, the doctrine of "fair use" means that some types of copying are acceptable and legally permissible. Fair use is laid out in in the statute and provides flexibility to account for a variety of circumstances and factors, including:

  • Purpose of the use (for profit, non-profit, educational, transformative, etc.)
  • Nature of the copyrighted work (factual or creative)
  • Amount used (small, medium, large, or the entirety of the work)
  • Effect of the copying on the market for the work (will it detract from the rightful owner's revenue)
    17 U.S. Code § 107

Ethics and schools have higher standards than law

Now that we have briefly summarized copyright law, consider ethics and the rules of organizations such as schools, colleges, and universities. These will be much stricter than the law. This means that students (and everyone) should ensure they do their own work, put in effort, always quote and cite where appropriate (anything copied), and cite where appropriate (where a writer's ideas are borrowed). I cover this an more in my article on writing a paper.

Conclusion

This brief summary has many simplifications to bring complex subject matter to all readers in an understandable and accessible manner. This article is for myself and students, and anyone else in need of information. It is not legal advice nor consulting advice, and is not tailored to your circumstances. I am not an intellectual property lawyer, which is a specialized area of law.

If your organization needs help protecting its trade secrets and other proprietary information and confidential data improving cybersecurity, and complying with cybersecurity related laws and regulations, contact me.

If your organization needs help in the areas of intellectual property law, I can help find someone experienced in intellectual property law, and see below.

While I remain responsible for what I have written here (subject to my disclaimer above and in my website's general disclaimer), I want to thank the following experts in intellectual property law for reviewing this article and providing quality control as needed:

References and additional reading

This article is hosted at https://johnbandler.com/intellectual-property-law/copyright, Copyright John Bandler, all rights reserved. (See, this writing is my intellectual property, I have copyright ownership of it, and I am giving notice and letting people know that).

Originally posted 12/23/2021. Last updated 06/26/2024.