Copyright Primer

What is copyright?

Copyright grants creators certain rights to control how their creative output is used. Its intent is to help promote creativity and development by giving the creator a period in which she can financially gain from her output.

Copyright doesn't cover an idea but rather its tangible expression or "fixed form." This means that the work has to be in some medium, like the printed page, paint, or pixels. To understand the difference, think of a photographer who takes a photograph of kids playing soccer. Copyright gives him the exclusive right to keep people from reprinting that image, but it doesn't mean other people can't publish pictures of kids playing soccer. In some cases, ideas can be protected, but this is done under trademark or patent laws.

In most cases, copyright automatically goes to the creator even before the work is completely finished. Things get a little more complicated if you are doing "work for hire" or freelance work. See the protecting your work page for more information.

Does copyright guarantee the right to sell a work?
Though you might be entitled to a copyright on your work, depending on the laws in your country or state, you may not be entitled to distribute the work. If a new creative work infringes on another person's copyright, privacy, or general obscenity laws, you may not have the right to distribute or sell the work.

Limits to Copyright

Utilitarian Objects
It might come as a surprise to some designers, wood workers, or other craftsmen that copyright does not cover useful, three dimensional items. Usually functional items are covered by design patents rather than copyright.

This doesn't always mean that if an object has a utilitarian function it can't be covered by copyright. If elements of a toaster, chair, or lamp are aesthetic and don't contribute to the function of object, it still might qualify for copyright protection. The simplest way to find out whether an object is covered by copyright is to try to register it with the U.S. Copyright Office. If you're denied, apply for a patent.

Fair Use
Fair use is an important but sometimes confusing exception to copyright protection. A fair use exemption allows people to copy portions of a work generally for some kind of societal benefit (e.g. education, scholarship). Be forewarned that there are no automatic cases of fair use. When a copyright holder challenges a use, it must be decided by the courts whether or not it is an instance of fair use. However, the Copyright Act does stipulate some factors to consider:

  1. Is the use for commercial or nonprofit purposes? A noncommercial use is generally more likely to be a fair use.
  2. What's the nature of the work? The use of factual information is more likely to be considered fair (think of the difference between using the structure of an experiment in science versus the use of a particular composition in painting)
  3. How much of the work has been used? Using just a portion of a work is more likely to be a fair use.
  4. What is the effect on the commercial profit of the original work? Uses that don't change the demand for a product are more likely to be considered fair.

When thinking about fair use, it's important to remember that even copyright lawyers and judges don't agree on the parameters of fair use.

Independent Creation
In a rare case, two people create almost an identical object or story. If the two instances were indeed created without the knowledge of the other, a copyright exemption is allowed. However, this can be difficult to prove, particularly if one of the objects is fairly well known.

Derivative work

The U.S. Copyright Act defines a derivative work as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization,...or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'" (17 U.S.C. ยง101).

Basically, if the new work depends upon the old work without adding criticism or satire, then the new work is considered derivative. Common examples of derivative works are remixed music or a screenplay adaptation of a book.

If you're interested in creating a derivative work, it's generally a good idea to get a license or permission. Even for coursework, it's a good idea to try to adhere to this guideline. That way, when you leave school, you'll know what you can or can't do with your work.

Work for Hire

Even if you are the one creating material that could be copyrighted, that copyright doesn't always belong to you. This might sound crazy at first, but Section 101 of the 1976 Copyright Act is intended to simplify the law for companies. Your employer is considered to be the author even though you created the work. For example, if you're a journalist working for the New York Times, the newspaper owns the copyright to your article, not you.