SandBar 6:3, October, 2007

The Basics of Copyright Protection

Will Wilkins is the director of Mississippi Law Research Institute at the University of Mississippi. This is the first part in a four-part series on copyright law.

Copyright protection can be summed up in one concise statement: copyright law provides protection for the creators of original works of authorship which have been placed in tangible form for a limited period of time. It is pretty simple, right? Of course, the devil is in the details, so, let’s look at the details.

Copyright law provides protection to many of the creative works we produce such as books, movies, music, articles, photographs, and journals. However, not all creations are protected by copyright law. In fact, the law specifies the types of work which can be protected. These include literary, musical, dramatic, choreographic, pictorial, graphic, architectural, sculptural, and audiovisual works including motion pictures and sound recordings. In order for these works to be protected they must be “original,” that is they must be the creator’s own work and contain some minimal level of creativity. Also the work must be in “tangible form” which means it must exist somewhere other than in the creator’s head such as on paper or a hard drive. This article, for instance, meets the threshold tests in that it is original and it is in tangible form (on my hard drive as I write). It is, therefore, copyrighted.

Nothing further is required for copyright protection. The copyright notices we have all seen, though quite helpful and recommended as a deterrent and to gain some legal advantages, are not required. Publication is not required. Registration is available through the Library of Congress; though it is a simple process and can be advantageous, registration is not required. Also, putting something on the internet, contrary to popular opinion, does not destroy copyright protection.

Generally speaking, the creator of a work is considered the owner. This default rule can be changed by contract or by operation of law. For example, an employee who creates a work within the course and scope of his employment is generally not the owner of the copyright but rather his employer is. Similarly, the laws provide that folks who hire independent contractors to create certain specific works (not all works are included) may own the copyright instead of the independent contractor when they enter into a written agreement stating that the work is to be a work for hire. All of this can get very complicated and often businesses choose to contract that the work is a work for hire but also specify that the creator agrees to transfer any copyright he may have, just to be sure.

Why are we so preoccupied with who owns a copyright? The answer is that the copyright owner has a great deal of control over how the work can be used. The law provides that a copyright owner has the exclusive right to copy, reproduce, prepare derivative works from, display, perform, and distribute the work. This means that he can stop others from making unauthorized copies of his work. In other words, he controls the use of the work.

Keep in mind too that the actual work and the copyright in the work are separate interests and can be owned by different folks. For example, when you buy a book at a bookstore, you own that copy of the book. You do not, however, own copyright to the work: you cannot make copies of it and sell it at a flea market and you cannot have it made into a movie. You do have some rights to it: you can read it or not, you can put it on your shelf, you can sell it to someone else, and you can destroy it if it really annoyed you. These rights are known as the “first sale” rights.

There are other rights the general public has to use copyrighted works without the copyright owner’s permission. The best known of these rights is the “fair use” doctrine which can allow such things as the use of short quotations of other’s works in scholarly papers for the purpose of criticizing or discussing the quotation. In order for something to be “fair use” under the statute, it must meet a fairly onerous and extremely fact dependent four part balancing test which will be discussed in greater detail in future articles.

There are a myriad of other “use” rights non-owners have to copyrighted works but most are very situation specific. For example, there is an exemption for some classroom use of materials and another pertaining to library copying – not exceptions you might use every day but if you are a teacher or librarian, they are quite handy and can help avoid the agony of applying the fair use test.

In future articles, we will explore more specifics of copyright law and its application to education, research, and publishing. We will look at steps to take to protect your copyrights, copyright registration, using others’ materials in your works, and fair use. If you have any other suggestions for future articles, please contact us.