Paralegal Guide: Crash Course in Copyright

The copyright symbol is ubiquitous in modern American life. But how do copyrights actually work? In this crash course in copyright, we explain the very basics of U.S. copyright law, what can get copyrighted, how long copyright lasts, and some of the more common exceptions to copyright. For students and researchers, we also provide links to further copyright-related resources.

What Can Be Copyrighted

Generally, scientific innovations are covered by patent law while artistic innovations are covered by copyright law. This includes musical works, whether as recordings or sheet music, literary works, audio recording, dramatic work, choreographic work, architectural work, visual arts, and artistic work that, while it derives something from a previously existing work, adds an original element. For example, Marcel Duchamp’s famous mustache on the Mona Lisa counts as a derivative work; the Mona Lisa already existed, but the addition of the mustache renders it as Duchamp’s work. Creative compilations of expressions are also protected, as they combine preexisting artistic forms in a selective and creative way. What connects all of these disparate types of copyright material is that they are all the expression of an idea. One of the axioms of copyright law is that copyright is designed to protect, the expression, not the idea itself.

What Copyright Entails

Legal scholars often refer to the “five pillars of copyright,” five basic actions that the holder of a copyright (generally called an “author,” regardless of what artistic form he or she chooses) can do or permit others to do: he or she can reproduce it, can distribute it, can perform it, can display it, and can create derivative works from it. It should be noted that this author can be one or more people. If two or more people possess a copyright, they are collectively referred to as the author. The author can also transfer a right or rights to another individual or group. For instance, a playwright can transfer the right to perform a play to a theater company.

Copyright has a built-in expiration date, at which point a work passes into the public domain. In the early days of the American republic, copyright was only designed to last 14 years, with an option to renew for another 14 years if the author was still living. Over the years, the lifetime of a copyright has been extended multiple times. Since the Copyright Term Extension Act of 1998, the lifespan of a copyright has been extended even longer for all works created since 1978. In the case of works created for hire (such as major studio films), the length is now 120 years after the creation of a work or 95 years after the copyright, whichever is shorter. For individual works, the copyright extends to 70 years after the death of the author.

It should also be noted that while the U.S. Copyright Office is responsible for the enforcement of copyright, there are no “copyright police” roaming the land. Rather, the artists, individuals, and (more often) media companies are responsible for reporting issues of copyright infringement.

Limitations on Copyright

In addition to the eventual passage of all copyrighted works into the public domain, other restrictions apply to copyrighted material. As mentioned earlier, the copyright only applies to the expression, not the idea. As a result, more tangible media are more likely to receive copyright protection. A specific musical element of a song, for instance, is not likely to receive a copyright in the same way that a material object is.

Certain media are generally exempt from copyright requirements. Libraries, jukeboxes, public broadcasters, backup copies of software, and braille transliterations of preexisting works are all free to use media within certain constraints.

Furthermore, other entities can claim “fair use” when utilizing a copyrighted work. This is a broad category that is subject to a great deal of debate– many of the major legal quarrels over copyright center around what is and is not fair use. Some principles are generally agreed on. Not for profit, educational use is one of the major pillars of fair use. However, what counts as “educational” is a major area of contention. The use of a small part of a copyrighted work is generally considered to be a form of fair use as well. Some uses of copyrighted work are more contentious than others. The use of a short quote from a book is almost universally considered acceptable. The use of a sample from a copyrighted song in a chart-topping rap single is fiercely debated.

The relationship of copyright to parody is an interesting gray area that has mostly emerged in the past 20 years. Does parody classify as an original work that functions as a commentary on a preexisting work? Or is it a derivation of a preexisting work, and therefore fall within the purview of rights restricted to the author? No consistent consensus has emerged on this matter.

Further Reading

We’ve included links to government agencies, educational information from law schools, and nonprofit organizations dealing with copyright.

• The United States Copyright Office is the organization responsible for enforcing copyright law.
• This chart explains the evolution of copyright duration in the U.S.
• Confused about the terminology? Cornell University provides a glossary of technical terms used in copyright law.
• The full text of every copyright law passed in the U.S. since 1909.
• Does a work qualify as copyrighted? Use this flowchart to find out.
• The Association of Research Libraries provides a timeline of copyright in the U.S.
• For those confused by fair use, Duke University’s law school has written a comic book to help the novice.
• Harvard University has authored a PDF guide to fair use for professionals and non-professionals alike.
• Stanford University maintains a fair use portal, including a blog with updates on the constantly running fair use controversies.
• The dawn of the Internet age has led to a sea change in copyright policy. The Digital Millennium Copyright Act is explained here.
• The Electronic Frontier Foundation is a major organization fighting against the rapid expansion of copyright in the digital realm.

IMAGE: The ever-present copyright symbol (Source: Wikimedia Commons)