The Copyright Handbook Read online

  Copyright protection begins auto-

  matically the moment a work is set to

  paper or otherwise fixed in a tangible

  What Constitutes Publication

  form.

  • “Only works that have a copyright

  Knowing whether a work has been

  notice on them are protected by

  published or not can be important,

  copyright.”

  because many important copyright rules

  Use of copyright notices has been

  differ for published and unpublished works.

  optional since March 1, 1989.

  A work is published for copyright purposes

  • “No one can use a pro tected work

  when copies are sold, rented, lent, given

  without the owner’s permission.”

  away, or otherwise distributed to the

  This has never been true. You can

  public by the copyright owner or by others

  use protected works so long as the

  acting with the owner’s permission—for

  action falls within the bounds of fair

  example, a publisher. It is not necessary to

  use—that is, does not diminish the

  sell thousands of copies of a work for it to

  value of the protected work.

  be considered published. So long as copies

  • “You can copyright your great ideas.”

  of a work are made available to the public,

  This also has never been true. Copy-

  the work is “published” for copyright

  right only protects the expression of

  purposes even if no copies are actual y sold

  an idea, not the idea itself.

  or otherwise distributed.

  6 | THE COPYRIGHT HANDBOOK

  Notice

  help develop the arts and sciences. An

  author must employ a minimal amount of

  In the past, all published works had to

  creativity in creating the work. This does

  contain a copyright notice (the © symbol

  not mean that to be protectable a work has

  followed by the publication date and

  to be a great work of art, but a minimal

  copyright owner’s name) to be protected

  amount of thought or judgment must have

  by copyright. This is no longer true. Use

  been involved in its creation.

  of copyright notices is now optional. Even

  A work need not be entirely new to

  so, it is always a good idea to include a

  be protectable. Copyright protects new

  copyright notice on all published works so

  material an author adds to a previously

  that potential copiers will be informed of the existing work. For example, copyright

  underlying claim to copyright ownership.

  protects derivative works. A derivative work

  is a work that is created by adapting or

  Registration

  transforming previously written material

  Prompt registration in the U.S. Copyright

  into a new work of authorship. Examples

  Office makes your copyright a matter of

  include a screenplay or stage play based

  public record and provides a number of

  on a novel, an English translation of a

  important advantages if it is ever necessary

  work written in a foreign language, and

  to go to court to enforce it. To register a

  condensed versions of articles (such as those

  work you must fill out a registration form

  found in Reader’s Digest). Copyright can

  and deposit copies of your work with the

  also protect “compilations.” These are works

  Copyright Office.

  in which preexisting materials are selected,

  coordinated, and arranged so that a new

  work of authorship is created—for example,

  What Copyright Protects

  anthologies or catalogs.

  Copyright protects an author’s words if and

  to the extent they are original—that is, not

  Limitations on Copyright

  copied from other authors’ works. Since

  Protection

  the main goal of copyright is to encourage

  creation of new intel ectual and artistic works, We’ve seen that the purpose of copyright it fol ows that copyright protection extends

  is to encourage intellectual and artistic

  only to material authors write themselves.

  creation. Paradoxically, giving authors too

  There is also no reason to protect works

  much copyright protection could inhibit

  whose creation is a purely mechanical or

  rather than enhance creative growth. To

  clerical act. Protecting works such as phone avoid this, some important limitations on

  books or certain blank forms would not

  copyright protection have been developed.

  CHAPTER 1 | COPYRIGHT BASICS | 7

  Ideas and Facts Are Not Protected

  be stopped dead. To avoid this, a special

  fair use exception to authors’ copyright

  Copyright only protects the words with

  rights was created. An author is free to

  which a writer expressed facts and ideas.

  copy from a protected work for purposes

  Copyright does not protect the facts or

  such as criticism, news reporting, teaching,

  ideas themselves; facts and ideas are free

  or research so long as the value of the

  for anyone to use. To give an author a

  copyrighted work is not diminished.

  monopoly over the facts and ideas contained

  in his or her work would hinder intellectual

  and artistic progress, not encourage it. For

  Works in the Public Domain

  example, imagine how scientific progress

  Any work that is not protected by copyright

  would have suffered if Charles Darwin

  is said to be in the public domain. This

  could have prevented anyone else from

  includes works in which the copyright was

  writing about evolution after he published

  lost, works in which the copyright expired,

  On the Origin of Species.

  and works authored or owned by the federal

  Because copyright only extends its

  government. Public domain means what

  protection to words rather than the under-

  it says—such works belong to the public

  lying facts and ideas, works in which

  as a whole. Anyone is free to use them

  the particular words used by the author

  any way he or she wishes without asking

  are important and distinctive—such as

  anyone’s permission. And no one can ever

  poems, novels, and plays—enjoy the most

  obtain copyright protection for public

  copyright protection. Works that readers

  domain material, no matter how the person

  buy primarily for the ideas and facts they

  transforms it. Everything published in the

  contain, not their language, receive less

  United States before 1923 is now in the

  protection. This includes most types of

  public domain, freely available to us all.

  factual works, such as histories, biographies,

  how-to books, news stories, and so forth.

  Copyright Ownership and

  Fair Use

  Transfer of Ownership

  To foster the advancement of th
e arts

  The copyright in a protectable work is initial y

  and sciences, there must be a free flow of

  owned by the work’s author or authors. But

  information and ideas. If no one could

  a person need not actual y create the work

  quote from a protected work without

  to be its “author” for copyright purposes.

  the author’s permission (which could be

  A protectable work written by an employee

  withheld or given only upon payment of a

  as part of a job is initial y owned by the

  permission fee), the free flow of ideas would employer—that is, the employer is considered

  8 | THE COPYRIGHT HANDBOOK

  to be the work’s author. Such works are

  Copyright Infringement

  cal ed works made for hire. Works created

  by nonemployees who sign work-for-hire

  Copyright infringement occurs when a

  agreements may also be works made for hire.

  person other than the copyright owner

  Like any other property, a copyright can

  exploits one or more of the copyright

  be bought and sold. This is the way authors

  owner’s exclusive rights without the owner’s

  other than self-publishers profit from their

  permission. This type of theft is also

  work. Typical y, authors sell their work to

  commonly termed “copy right piracy.”

  publishers for a fee or royalty. However,

  The Copyright Act doesn’t prevent copy-

  transfers of copyright ownership are unique

  right infringement from occurring, just as the

  in one respect: Authors or their heirs have the laws against auto theft do not prevent cars right to terminate any transfer of copyright

  from being stolen. However, the Copyright

  ownership 35 years after it is made.

  Act does give an author a legal remedy after

  an infringement has occurred: The author

  may sue the infringer in federal court.

  How Long a Copyright Lasts

  An author who wins an infringement

  Few things in this world last as long as copy-

  suit can stop any further infringement,

  right protection. Indeed, an author’s work is

  get infringing copies destroyed, obtain

  likely to be long forgotten before the copyright damages from the infringer—often the

  in it expires. The copyright in works created

  amount of any profits obtained from the

  after 1977 by individuals usual y lasts for the

  infringement—and recover other monetary

  life of the author plus an additional 70 years.

  losses. This means in effect that an author

  The copyright in works created by employees

  can make a copyright pirate restore the

  for their employers lasts for 95 years from the

  author to the same economic position as if

  date of publication, or 120 years from the date the infringement had never occurred. And, of creation, whichever occurs first.

  in some cases, the copyright owner may

  The copyright in works created and

  even be able to obtain monetary penalties

  published during 1923–1963 lasts for 95

  that may far exceed actual losses.

  years from the date of publication if the

  copyright was timely renewed. It may be

  Other Protections for

  necessary to do some legwork to determine Intellectual Property

  whether a renewal was filed for a work. The

  copyright in works published during 1964– The copyright law is not the only means

  1977 lasts for 95 years regardless of whether available to protect economically valuable a renewal was filed. The copyright in works products of human intellect. The state and

  created but not published before 1978 lasts

  federal trademark laws protect distinctive

  at least until 70 years after the author dies.

  words, phrases, logos, and other symbols

  CHAPTER 1 | COPYRIGHT BASICS | 9

  used to identify products and services in the Patents

  marketplace. The federal patent law protects

  new inventions. State trade secret laws may By filing for and obtaining a patent from

  protect novel and generally unknown ideas, the U.S. Patent and Trademark Office, an

  processes, or technical designs that provide inventor is granted a monopoly on the use

  a commercial advantage in the marketplace. and commercial exploitation of an invention

  for a limited time. A patent may protect the

  functional features of a machine, process,

  Trademarks

  manufactured item, method of doing

  The copyright laws do not protect names,

  business, composition of matter, ornamental

  titles, or short phrases. This is where

  design, or asexually reproduced plant. A

  trademark protection comes in. Under

  patent also protects new uses for any such

  both federal and state laws a manufacturer, items. However, to obtain a patent, the

  merchant, or group associated with a

  invention must be novel and nonobvious.

  product or service can obtain protection

  EXAMPLE: Mickey invents an entirely

  for a word, phrase, logo, or other symbol

  new and nonobvious type of mousetrap.

  used to distinguish that product or service

  He applies for a patent on his invention.

  from others. If a competitor uses a protected

  If and when it’s issued, no one can make,

  trademark, the trademark holder can obtain

  use, or sell Mickey’s invention without his

  a court injunction and monetary damages.

  permission for the term of the patent (20

  years from the date the patent application

  EXAMPLE: The word “Kleenex” is a

  was filed). If they do, Mickey can sue them

  registered trademark of Kimberly-Clark

  for patent infringement.

  Worldwide, Inc. None of Kimberly-Clark’s

  competitors can use this word on a box

  The basic difference between a patent and

  of facial tissues without Kimberly-Clark’s

  a copyright is that a patent protects ideas

  consent. If they do, Kimberly-Clark could get as expressed in an invention, whether a

  a court to order them to stop and could sue machine or process of some type. Copyright

  for damages.

  protects only the words an author uses to

  The trademark laws are often used in

  express an idea, not the idea itself.

  conjunction with the copyright law to

  EXAMPLE: Mary has invented the widget,

  protect advertising copy. The trademark

  a device only dreamed about for decades.

  laws protect the product or service name

  She obtains a patent for her invention. She

  and any slogans used in the advertising, and

  manufactures and sel s the widget herself.

  the copyright laws protect any additional

  She also writes and publishes a technical

  literal expression that the ad contains.

  manual, The Widget Owner’s Survival Guide.

  10 | THE COPYRIGHT HANDBOOK

  The patent law prevents anyone from

  or damages. However, once inform ation

  manufacturing and sel ing widgets without

  becomes widely known—for example,

  Mary’s permis
sion. The copyright law

  through publication—it loses its trade secret

  prevents anyone from copying the manual

  status and courts will not protect it.

  without Mary’s permission.

  EXAMPLE: Recall that Mary, in the second

  Obtaining a patent can be a difficult and

  patent law example above, wrote a training

  time-consuming process (it usually takes

  manual for her widget invention. This

  years). See Patent It Yourself, by David

  manual was automatical y protected

  Pressman and Thomas J. Tuytschaevers

  by copyright. If the manual is also kept

  (Nolo), for a detailed discussion.

  confidential (Mary only al ows her employees

  to read it and makes them sign agreements

  Trade Secrets

  to keep it confidential), it may also be

  entitled to trade secret protection. However,

  A trade secret is information or know-

  once Mary publishes and distributes the

  how that is not generally known in the

  manual widely to the public, any trade

  community and that provides its owner

  secret protection would cease.

  with a competitive advantage in the

  Since most authors want their work

  marketplace. The information can be an

  to be published and as widely read as

  idea, written words, a formula, a process

  possible, trade secret laws usually have little

  or procedure, a technical design, a list, a

  application to written works. However,

  marketing plan, or any other secret that

  trade secret protection may be important

  gives the owner an economic advantage.

  to authors of written works containing

  If a trade secret’s owner takes reasonable

  competitively advantageous information

  steps to keep the confidential information

  that has been kept confidential. Trade secret

  or know-how secret, the courts of most

  protection is provided only under state law

  states will protect the owner from

  and varies from state to state.

  disclosures of the secret by:

  • the owner’s employees

  • other persons with a duty not to make Contract Protection for Ideas

  such disclosures

  Consider this example: Manny, a TV

  • industrial spies, and

  producer, agrees to pay Sally $10,000 for

  • competitors who wrongfully acquire

  telling him an idea she has for a new TV

  the information.

  show. Sally tells Manny the idea, but he

  That is, the trade secret’s owner may be able fails to pay. Does Sally have any recourse to sue the infringer and obtain an injunction