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DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998.

What is copyright?

Copyright is a form of legal protection automatically provided to the authors of “original works of authorship,” including literary, dramatic, musical, and artistic works.

U.S. copyright law generally gives the author/creator or owner of an original creative work an exclusive right to:

• Reproduce (copy) or distribute the original work to the public (e.g., create and sell copies of a film)
• Create new works based upon the original work (e.g., make a movie based on a book)
• Perform or display the work publicly (e.g., perform a play)

Violation of one of these rights is called copyright infringement. However, the use may be authorized by copyright limitations (such as fair use) described below.

What types of works are protected by copyright?

• Literary works
• Music and lyrics
• Dramatic works and music
• Pantomimes and choreographic works
• Photographs, graphics, paintings and sculptural works
• Motion pictures and other audiovisual works
• Video games and computer software
• Audio recordings
• Architectural works

What is not protected by copyright?

• Unfixed works that have not been recorded in a tangible, fixed form (e.g., a song you made up and sang in the shower)
• Work in the public domain (see below)
• Titles, names, short phrases, and slogans; familiar symbols or designs; numbers
• Ideas and facts
• Processes and systems (e.g., the Dewey decimal system)
• Federal government works (e.g., the tax code)

If I have an idea in my head, is it automatically copyrighted?

No, ideas are not copyrightable. Only tangible forms of expression (e.g., a book, play, drawing, film, or photo, etc.) are copyrightable. Once you express your idea in a fixed form — as a digital painting, recorded song, or even scribbled on a napkin — it is automatically copyrighted if it is an original work of authorship.

Who owns the copyright?

• Author/Creator
• Author/Creator’s heirs if the creator is dead (living family)
• Creators of a joint work automatically share copyright ownership unless there is a contrary agreement. (e.g., If two students write an original story together, they share the copyright.)
• Anyone to whom the author/creator has given or assigned his or her copyright (e.g., an employer if the copyrighted work is created under a “work made for hire” agreement, a publisher or record company if the copyrighted work is given in exchange for a publishing or recording contract). Usually this means that the author/creator has given up his or her own copyright in the work.

Who owns the copyright in recorded music?

It depends. If a person writes a song and records it, that person is the creator and owns the copyright. But professionally produced music can have many copyright owners. For example, the copyright to a particular sound recording may be owned by the songwriter, the performer, the producer, a record label, a publisher, or a combination thereof.

When I buy music, either online or offline, do I get copyright in the work?

No, when you buy music, you own that copy of the music. If you bought a CD, you are allowed to sell that particular copy or make fair uses of it, but you don’t own a copyright in the music itself. If you bought a song on iTunes or other service, your ownership of it may be subject to certain restrictions.

When does copyright start? Do I have to register the work with the government?

Copyright status is automatic upon creation of your original creative work in a fixed, tangible form. Registration with the U.S. Copyright Office is not necessary for copyright status and protection, though registration is needed in order to pursue an infringement claim in court.

How do I formally register my original, creative work?

You can fill out the form and submit a filing fee at the U.S. Copyright Office website.

How long does copyright last?

• For original works created after 1977, copyright lasts for the life of author/creator + 70 years from the author’s death for his/her heirs.
• For “works made for hire” corporate works and anonymous works created after 1977, copyright can last from 95-120 years from publication.

Are there any copyright limitations?

There are several limits on copyrights. For example:

Fair Use allows the public to use portions of copyrighted work without permission from the copyright owner. To decide whether a use is a fair use, courts look at four factors:

1. The purpose and character of the second use: Is it just a copy, or are you doing something different from the original work? Is your use commercial?
2. The nature of the original: Was the original work creative or primarily factual?
3. Amount used: How much of the original work was used, and was that amount necessary?
4. Effect: Did the use harm the market for the original work? For example, would people buy this work instead of the original?

First Sale allows a consumer to resell a product containing copyrighted material, such as a book or CD that the consumer bought or was given, without the copyright owner’s permission.

Public Domain works can be freely used by anyone, for commercial or noncommercial purposes, without permission from an original copyright owner/author. Public domain status allows the user unrestricted access and unlimited creativity! These works may be designated for free and unlimited public access, or they may be no longer covered by copyright law because the copyright status has expired or been forfeited by the owner.

What is licensing?

Licensing is when a copyright owner gives permission for someone else to do something normally restricted by copyright law. For example, the creator of a song may license a song to an advertising agency, allowing the ad company to use parts of her song in a television commercial in exchange for compensation.

Sometimes a creator may want to give everybody the permission to make copies of his or her work. For example, some musicians want fans to make copies and share their songs, so they license their songs in a way that gives others explicit permission to copy and share them. One increasingly common set of licenses that exist for this purpose are Creative Commons licenses.

What about plagiarism?

Plagiarism and copyright each address the legitimacy of copying, but plagiarism and copyright differ in important ways. While plagiarism is concerned with the protection of ideas, copyright doesn’t protect ideas – it protects “fixed expressions of ideas.”

Plagiarism is the act of misrepresenting the ownership of an idea. In school, it usually means passing off someone else’s ideas as your own in a research paper or other academic work. Plagiarism is wrong, dishonest, and can lead to serious negative consequences in any school or professional setting. One way to avoid plagiarism is to properly cite your sources – a key academic skill.

By contrast, copyright is a legal concept extensively embodied by U.S. laws and policies. Copyright law permits individuals to make copies under certain conditions, but violating certain copyright rules is copyright infringement. You can’t avoid a copyright infringement claim just by citing your sources (though it may still be the right thing to do).

What is fair use?

The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. Fair use allows people other than the copyright owner to copy part or, in some circumstances, all of a copyrighted work, even where the copyright holder has not given permission or objects.

How does fair use fit with copyright law?

Copyright law embodies a bargain. It gives copyright holders a set of exclusive rights for a limited time period as an incentive to create works that ultimately enrich society as a whole. In exchange for this limited monopoly, creators enrich society by, hopefully, contributing to the growth of science, education and the arts.

However, copyright law does not give copyright holders complete control of their works. Copyrighted works move into “the public domain” and are available for unlimited use by the public when the copyright term expires (see Public Domain FAQ). But even before works enter the public domain, the public is free to make “fair uses” of copyrighted works.

By carving out a space for creative uses of music, literature, movies, and so on, even while the works are protected by copyright, fair use helps to reduce a tension between copyright law and the First Amendment’s guarantee of freedom of expression. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law.”1

How does the court know if a use is fair?

Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn’t depend on whether you give credit to the source from which you copied. Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in section 107 of the Copyright Act. Those factors are:

1. The purpose and character of the use of copyrighted work
   • Transformative quality - Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?
   • Commercial or noncommercial - Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.
2. The nature of the copyrighted work
   A particular use is more likely to be considered fair when the copied work is factual rather than creative.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
   How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its “heart,” may weigh against fair use. But “how much is too much” depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.2
4. The effect of the use upon the potential market for or value of the copyrighted work
   This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.

These factors are guidelines, and they are not exclusive. As a general matter, courts are often interested in whether or not the individual making use of a work has acted in good faith.

What has been recognized as fair use?

Many types of uses have been found to be fair. Here’s a small sample:

• Criticism & Commentary
  A book publisher used several stills from the famous 1963 Zapruder footage of President Kennedy’s assassination for the historical book Six Seconds in Dallas. Time Inc., the owner of the footage, sued the book publisher for copyright infringement. In Time Inc. v. Bernard Geis Associates, the court ruled that the publisher’s use of the stills was “fair and reasonable,” in part because the use was based on a factual and historical news event.3
• Parody
  An episode of the TV cartoon “Family Guy” made fun of comedian Carol Burnett’s image and signature characters from her 1960’s comedy variety show. In Carol Burnett v. Twentieth Century Fox, the court ruled that the show’s use was fair, in part because the “Family Guy” episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market.4
• News reporting
  The Washington Post newspaper used three brief quotations from Church of Scientology texts that were posted on the Internet. In Religious Technology Center v. Pagliarina, the court found the use to be fair, in part because the newspaper excerpted only a small portion of the work and the purpose was for news commentary.5
• Art
  American artist Jeff Koons used a portion of a designer photo advertisement (a model’s legs in Gucci sandals) amongst a collection of iconic images in his painting, “Niagara.” In Blanch v. Koons, the court held that the painting’s use of the copyrighted images was a transformative fair use, in part because it commented on fashion and consumer culture.6
• Scholarship and Research
  A biographer of author Richard Wright quoted from six of Wright’s unpublished letters and ten unpublished journal entries. In Wright v. Warner Books, Inc., the court found that the biographer’s use was fair, in part because the biographer’s purpose was to educate and inform the public, and his use constituted less than 1% of Wright’s unpublished letters. 7
  A researcher at a nonprofit foundation used quotations from an unpublished, historical literary work in her academic presentation. In Sundeman v. The Seajay Society, the court ruled that the researcher’s use was fair and noted that the work was transformative and was used solely for the purpose of scholarly analysis. 8
• Time-shifting
  A major electronics manufacturer developed a video tape recording device that allowed the consumer to “time-shift”—record a complete TV program in real-time and hold the show for a later viewing. Several major film studios filed a copyright infringement suit against the electronics manufacturer claiming the device could be used for copyright infringement. In 1984’s Sony v. Universal Studios (aka the Betamax case), the Supreme Court held that time-shifting with a VCR qualified as fair use. The courts noted that the private, non-commercial home taping of free television programs for later viewing was not infringing and did not hurt the market value of the copyrighted material.9
• Search Engines
  A Google search engine turned the photos on a subscription-only website into thumbnail images for its search results. In Perfect 10 v. Amazon.com et al, the court ruled that Google’s use of thumbnail photos was “highly transformative,” since the search engine changed the image’s original purpose of entertainment and aesthetics into providing Google’s users with links to images.10

• 1.Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L. Ed. 2d 500 [1994].
• 2.MoveOn, Brave New Films v. Viacom.
• 3.Time Inc. v. Bernard Geis Associates.
• 4.Carol Burnett v. Twentieth Century Fox, 491 F.Supp.2d 962, 967, 975 (C.D.Cal. 2007).
• 5.Religious Technology Center v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).
• 6.Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).
• 7.Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).
• 8.Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).
• 9.Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).
• 10.Perfect 10 v. Amazon.com et al, 487, F.3d 701 (9th Cir 2007).

What is the public domain?

Public domain works are not restricted by copyright and do not require a license or fee to use. Public domain status allows the user unrestricted access and unlimited creativity!

There are three main categories of public domain works:

• Works that automatically enter the public domain upon creation, because they are not copyrightable:
  • Titles, names, short phrases and slogans, familiar symbols, numbers
  • Ideas and facts (e.g., the date of the Gettysburg Address)
  • Processes and systems
  • Government works and documents1
• Works that have been assigned to the public domain by their creators
• Works that have entered the public domain because the copyright on them has expired

(Note: Use of some works, such as ideas and symbols, may be restricted by other laws, such as patent, trademark, or trade secret.)

What works have expired into the public domain?2

• All works published in the U.S. before 1923
• All works published with a copyright notice from 1923 through 1963 without copyright renewal
• All works published without a copyright notice from 1923 through 1977
• All works published without a copyright notice from 1978 through March 1, 1989, and without subsequent registration within 5 years

Congress has passed a series of laws extending the term of copyright. Currently, the default term is life of the author plus 70 years. That means that most of the copyrighted works created from the late 1970s to the present may not become public domain during your lifetime.

In general, works published after 1977 will not fall into the public domain until 70 years after the death of author, or, for corporate works, anonymous works, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

Where can I find public domain works?

The sites below will guide you to a cultural wealth of public domain books, images, illustrations, audio, and films where the copyright term has expired or the creator has not renewed the license. Remember, public domain works are free and available for unrestricted use. Enjoy and be creative!

• Smithsonian Institution Public Domain Images
• New York Times Public Domain Archives
• Project Gutenberg, a collection of public domain electronic books
• Librivox, public domain audio books
• Prelinger Archives; a vast collection of advertising, educational, industrial, and amateur films.

How does a creator dedicate a work to the public domain?

One way to dedicate a work to the public domain in the U.S. is to use the Creative Commons Public Domain Dedication. Note that interpretation of a dedication may vary in countries outside of the United States.

Creative Commons also offers “CC0,” a method of waiving all copyrights and a number of other related rights.

• 1.More specifically, “a work prepared by an officer or employee of the United States Government as part of that person’s official duties” is in the public domain, but there are situations in which copyright does apply to a government document. For example, works produced by contractors working on behalf of the government can be protected by copyright, depending on the terms of the contract. There may be disclaimers on “.gov” sites that cover exceptions or discrepancies.
• 2.Cornell University, “Copyright Term and the Public Domain in the United States 1 January 2009”

Glossary of Terms