To every creative person copyrights are both a boon and a bane. The copyright is the most valuable thing
that a writer, filmmaker, photographer, artist, composer, or musician has when they are done creating.
Sure, they have the tangible object: the manuscript, the painting, the recording, etc. But the value of
that tangible object is usually small by comparison to the right to reproduce and sell copies of it or
to make other works derived from it.
On the other hand, creative people are sometimes inspired by the works of others and wish to incorporate
other works into their own. Filmmakers may wish to sync music that they like to the other sounds and images that they
have fixed in their movie. Writers may wish to write stories based on characters that others have created.
To do so, they must have the permission of the holder of the copyright. If they cannot obtain that permission
their creativity is stifled, but if they proceed without it, then they are trambling on the rights of another creative person
and depriving them of credit and compensation for their work.
The founders of our country not only saw this conflict but they also realized that all things must come to an
end. Their vision is reflected in the U.S. Constitution.
Article I Section 8 of the U.S. Constitution states:
"The Congress shall have Power...
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;"
Basics of U.S. Copyright Law
Copyright law in the United States of America is primarily governed by
Title 17 of the U. S. Code
which consists of the laws passed by the U.S. Congress in various years under the
authority of Article I Section 8 of the U.S. Cosntitution cited above.
Sections of the copyright law are usually cited in this style: 17 USC §100.
Subject to certain limitations,
17 USC § 106
gives the owner of a copyright the EXCLUSIVE right to:
- produce copies of the work
- create derivative works
- distribute copies work to the public by sale or rental
- perform the copyrighted work publicly
- display the copyrighted work publicly
Limitations on those exclusive rights include: Fair Use
(17 USC §107),
Reproduction by Libraries and Archives
(17 USC §108),
Performance or Display by Non-Profit Educational and Religious Institutions
(17 USC §110),
Cumpulsory Licenses on Phonorecords
(17 USC §115),
Archive Copies of Computer Programs
(17 USC §117),
Reproduction for Blind or Disabled People
(17 USC §121).
17 USC §102
states that "original works of authorship fixed in any tangible medium
of expression" are subject to copyright, including:
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
But what is an "original work?" What degree of of originality is required?
What quantity? The statute does not explicitly say. That has been left to the interpretation of the appellate
Compilations and Derivative Works
17 USC §103 extends copyrightable works to include compilations and derivative works, but only to
the material contributed by the author of the derivative work or the compilation "as distinguished from
the preexisting material employed in the work" and only if the derivative work or compilation does not
infringe other copyrights.
The copyright statute defines both
"derivative work" and "compilation." 17 USC §101 defines a "derivative work" as:
"a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment,
condensation, 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"."
and a "compilation" as
"a work formed by the collection
and assembling of preexisting materials or of data that are selected, coordinated,
or arranged in such a way that the resulting work as a whole constitutes an original
work of authorship. The term "compilation" includes collective works."
A copyright in a compilation or derivative work is independent of the copyright
(if any) in the original work "and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection in the preexisting material."
For example, if you compile an anthology of short stories which are all in the
public domain, your copyright in that compilation only applies to your arrangement
of the materials and any introductory materials or annotations. The short stories
are still in the publc domain and thus can still be published by anyone without
your consent, even if they copy them from your compilation. You cannot create a copyright in something in the public domain
by reproducing it. If you scan or photograph an old map or old book which is in the public
domain, the act of creating the image must add substantial original material to the
public domain work or there is no copyright at all. It does not matter how much
time or effort you put into recreating the original work. It is still in the
Not everything can be copyrighted.
17 USC §§ 102 & 105 state
that the following types of things cannot be copyrighted in the United States:
- methods of operation
- any works created by the United States Government (§105)
17 USC §§ 101 & 102,
once a copyrightable work is "fixed in any tangible medium of expression" from
which it can be "perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device" the copyright exists in that work. To be
"fixed in any tangible medium of expression" it must be in a form that is
"sufficiently permanent or stable to permit it to be perceived, reproduced,
or otherwise communicated." For example, a performance is not "fixed" until it is
recorded by audio or visial means. A book or a poem is "fixed" when it is written
on a piece of paper or saved to a computer harddrive. Registration is not required
to create a copyright. However, registration provides important benefits.
Now that is the easy part: Just visit
the U.S. Copyright Office website,
fill in the blanks on the appropriate form, print the form and mail it along with
a check for $45 and the required samples of the work to the address on the form.
Will mailing myself a copy help?
Some people argue that mailing a copy of your manuscript or screenplay to yourself
will provide proof that you created it before a particular date. That is not necessarily true. Unless you
send it Registered Mail where it is sealed and stamped on the seal by a postal employee, you have no proof that
you did not mail yourself blank sheets of paper and later unseal the envelope and substitute the manuscript. Sending
a 3 pound manuscript halfway across the country by Registered U.S. Mail will cost over $16. If someone steals
your work, then you still must register it with the U.S. Copyright office before you can sue them for infringement.
So instead of $45, you are paying at least $16+$45=$61. It would have been cheaper and more efficient to have
filed it with the Copyright Office in the first place. A copyright certificate can be a very powerful tool for
making an infringer back down. Most websites will require that you provide a copyright certificate before they will
remove material that you claim infringes your copyright.
Will registering my screenplay with the Writers Guild of America help?
The reasoning is the same as that above. You can pay the WGA their
registration fee, but you must register it with the U.S. Copyright office before you can sue for infringement.
You end up paying two fees rather than one. Only the Copyright Office can issue a copyright certificate that
can truly protect your work. In addition, distributors and publishers may require a
copyright certificate to prove that you are the copyright holder before they will license and distribute your work.
The duration of a copyright in the USA currently depends
on several factors including:
- When was it created?
- When was it published?
- Was it published anonymously or pseudonymous?
- Was it a "work-for-hire"?
Duration of copyright: Works created on or after January 1, 1978
17 USC §302
"Copyright in a work created on or after January 1, 1978, subsists from its creation
and ... endures for a term consisting of the life of the author and 70 years after the author's death."
If the work is created by two or more authors, the copyright endures for 70 years after the death of the
last surviving author (17 USC §302(b))
Copyright in Works-For-Hire, Anonymous Works and Pseudonymous Works lasts for 95 years from the date
of first publication or 120 years from the date of creation, whichever comes first. However, if the identity
of the anonymous or pseudonymous author is revealed on the registration records prior to the end of that term,
then the duration of the copyright will be 70 years after the author's death.
(17 USC §302(c))
Duration of copyright: Works created before January 1, 1978
If a work was created before January 1, 1978, but not copyrighted under the older rules or published in
such a way that made it fall into the public domain then the copyright shall endure according to the rules
in Section 302 above, but in no case will the copyright expire before December 31, 2002.
(17 USC §303) If the work is published
before 2002 then the copyright shall not expire before 2047.
Works that were published and copyrighted before 1978 and were still in their first 28 year term on January 1, 1978
will have an initial copyright term of 28 years plus a renewal term of an additional 67 years, for a total of 95 years
from the date the copyright was originally secured. (17 USC §304) The copyright
claimant or the claimant's heirs may apply for such extension. However: "Such an application is not a condition of the
renewal and extension of the copyright in a work for a further term of 67 years." (Added by the Sonny Bono Copyright Term Extension Act)
(17 USC §304(a)(2(B))
Any works that were in their renewal term on the effective date of the Sonny Bono Copyright Term Extension Act (October 27, 1998)
have a copyright term of 95 years from the date the copyright was originally secured. (17 USC §304(b))
The Copyright Act of 1976 extended the term of copyrights commencing between September 19, 1906, and December 31, 1949 to
75 years if they were in their renewal term between December 31, 1976, and December 31, 1977. In addition, prior to the 1976 Copyright Act, Congress enacted a series of
nine interim extensions for works whose copyright protection began between September 19, 1906, and December 31, 1918, if they were in their renewal terms. Without these
interim extensions, copyrights commencing during that time period would have otherwise expired after 56 years, at the end of their renewal terms, between September 19, 1962,
and December 31, 1976. The nine Acts authorizing the interim extensions are as follows, in chronological order:
(Footnote 7 to Chapter 3 of Title 17 of the US Code)
- Pub. L. No. 87-668, 76 Stat. 555 (extending copyrights from September 19, 1962, to December 31, 1965)
- Pub. L. No. 89-142, 79 Stat. 581 (extending copyrights to December 31, 1967)
- Pub. L. No. 90-141, 81 Stat. 464 (extending copyrights to December 31, 1968)
- Pub. L. No. 90-416, 82 Stat. 397 (extending copyrights to December 31, 1969)
- Pub. L. No. 91-147, 83 Stat. 360 (extending copyrights to December 31, 1970)
- Pub. L. No. 91-555, 84 Stat. 1441 (extending copyrights to December 31, 1971)
- Pub. L. No. 92-170, 85 Stat. 490 (extending copyrights to December 31, 1972)
- Pub. L. No. 92-566, 86 Stat. 1181 (extending copyrights to December 31, 1974)
- Pub. L. No. 93-573, 88 Stat. 1873 (extending copyrights to December 31, 1976)
"All terms of copyright provided by sections 302 through 304 run to the end
of the calendar year in which they would otherwise expire."
(17 USC §305)
Confused? That's not surprising. The result of all that is: