Copyright: The Basics
What is Copyright?
A copyright is a protection granted to authors of certain types of original works. Eight categories of works are addressed in the copyright law:
- literary works
- musical works
- dramatic works
- choreographic and pantomime works
- pictorial, graphical or sculptural works
- motion pictures or audiovisual works
- sound recordings
- architectural works
Copyright attaches when a concept is "fixed in any tangible medium of expression." 17 U.S.C. 102. It is important to understand that a copyright does not protect an idea. It merely protects the actual expression of that idea (e.g., journal article, song, painting).
Not all expressions are protected. Items such as titles, names, common phrases or symbols are not copyrightable subject matter, nor are works of common property (standard calendars, rulers) or works consisting of only public information (compilation of population statistics). The key is that to be copyrightable, the works must contain original authorship.
The United States copyright statutes may be found in its entirety at Title 17 of the United States Code.
What Rights Does a Copyright Owner Have?
A copyright owner is given a bundle of rights under the copyright laws. The owner, or copyright holder, has the exclusive right to:
- reproduce the work
- make derivative works from the original work
- distribute the work or reproductions of the work by sale, lease or other modes of transfer
- publicly perform or display the work; and
- for sound recordings, perform the work by digital audio transmissions (e.g., radio broadcasts)
In some circumstances, an author may also claim moral rights.
Must an Owner Affix the © Symbol on a Work in Order to Receive Copyright Protection?
The short answer is, No. For works created on or after March 1, 1989, the © symbol is not necessary to receive copyright protection. Marking a work with the © symbol, however, serves as a notice to others that the work is copyrighted. This may prevent innocent infringement. A proper copyright notice contains 3 elements:
1. The symbol ©, or the word "Copyright," or the abbreviation "Copr."
2. The year of first publication of the work; and
3. The name of the author.
Example: © 2000 Jane Smart.
The notice should be placed on the work in a position where it will "give reasonable notice of the claim of copyright." For more details on the format and placement of the copyright notice, see the Copyright Office's Circular on Copyright Notice.
Must a Work be Registered with the Copyright Office?
Again, the answer is No. Registering a work with the Copyright Office is not necessary to secure copyright protection. However, registration is necessary to bring an infringement lawsuit against another American work. It may also entitle the owner to certain statutory damages should the owner win the infringement suit, along with providing other advantages. Only the Copyright Office may process copyright applications and issue registration certificates.
Who is the Copyright Owner?
The author of the work is presumed the copyright holder of the work unless the work is the result of a work-for-hire situation, or if the copyright has been transferred to another entity or by other agreement.
The copyright law defines a "work made for hire" as:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....
Susan is a software engineer at MegaComp, Inc. She develops a computer program that is within the scope of her employment. Susan is the author of the software, but because of the employer-employee relationship, MegaComp, Inc. is the copyright holder.
Susan is an artist. Mr. Loaded asks her to design a work to adorn his personal library. He leaves the medium and theme up to Susan. In this case, "work for hire" does not apply and Susan is both the author and the copyright holder. However, Mr. Loaded could obtain the copyright if he received an assignment of copyright from Susan.
Joint Authorship/Ownership- Joint authorship and ownership of a copyrighted work is possible provided at the time of the creation of the work, all authors agree that (1) their contributions will become one larger work, and (2) that they intend to be joint owners of the resulting work. 17 USC 101.
Caltech's Copyright Policy
Caltech has a copyright policy that governs the ownership and disposition of copyrightable materials created by its faculty, graduate students and staff. The Institute Patent and Copyright Agreement further sets out procedures for the management of copyrightable works, and is found in the Faculty Handbook and the Post Doctoral Scholars Handbook.
For How Long is the Work Protected?
For works created on or after January 1, 1978, the work is protected from the time it is "fixed in tangible medium of expression" until 70 years after the death of the author. In the case of multiple authors, the life of the last surviving author is used as the term. For works created prior to 1978, factors such as publication with a proper copyright notice, registration, and renewal terms will determine the length of protection. A chart of copyright terms is available to assist in determining the duration of copyright in a particular situation.
Once the terms expire, the work is said to pass into the public domain. This means that anyone may use the work without permission from the copyright holder.
For additional information on copyright basics, see the excellent material set forth in the University of Texas System's Copyright Crash Course and Copyright Tutorial.
Copyright Infringement: What is it & What Are the Penalties?
Copyright infringement is the use of copyrighted material without permission from the copyright holder. Some unauthorized uses, however, have been given statutory exemptions meaning that under specific circumstances, use of copyrighted materials without permission is not considered infringement. Some examples of statutory exemptions:
- fair use of the work;
- reproductions by libraries and archives;
- display of copyrighted materials in a non-profit educational classroom setting, provided the work was legally obtained.
The penalties for copyright infringement can be quite severe. The copyright law imposes statutory penalties of up to $100,000 on willful infringements of each piece of copyrighted work. In addition to any damages, a court may also award attorney's fees to the successful litigant. Copyright infringement in the digital realm carries the same penalties.
How Can One Use a Someone Else's Copyrighted Work?
In order to use an excerpt from, or distribute copies of a copyright work, first determine if the intended use clearly falls under one of the statutory exemptions. If not, permission must be obtained from the copyright owner. This usually involves writing the owner and describing with sufficient detail how the materials will be used. A fee may be required for the use. In the case of printed (books, journals) and musical works, a clearinghouse or publisher will likely be responsible for granting permission. Several sources are available to assist in this process. The Copyright Office also has information on investigating the status of a copyrighted work.
If the intended use does not fit under a statutory exemption (including fair use) and the copyright owner says no, the work cannot be used.
The Copyright Statute in its entirety.
University of Texas System Crash Course in Copyright - Contains a vast array of information along with a tutorial on copyright basics.
The Copyright Office - Addresses copyright basics and procedures, legislation affecting copyrights.
Stanford University Library Copyright & Fair Use - Discusses recent copyright issues. Contains text and discussion of copyright court decisions and addresses issues of concern to libraries.
Findlaw Internet Legal Resources Index - Statutes, cases, publications, general legal information for lawyers, students and the public, it also includes discussion on the ownership of copyright. This is a searchable database.
FAQ on Copyrights - From Nolo Press.
Copyright, Intellectual Property Rights and Licensing Issues - From the University of California, Berkeley, it provides links to current and basic copyright and intellectual property issues.