Copyright
Copyright is a double-edged sword. On the one hand, copyright is the primary vehicle for protecting a writer’s literary creations. Unless writers have the legal ability to prevent others from copying their work, it would be very difficult to preclude others from using the fruits of the writer’s labor without compensation. Fortunately, there are strong copyright laws that enable writers to prevent others from wrongfully appropriating their work. On the other hand, overly restrictive copyright laws may chill the writer’s creative endeavors. Writers frequently use the works of others as the basis for research and literary development, sometimes to the extent of quoting portions of other works verbatim. From this perspective, unless the copyright law provides some flexibility, many writers could be inhibited for fear they may infringe on another work and be exposed to liability.
Copyright law in the United States has its foundations in the Constitution, which provides, in Article I, Section 8, that Congress shall have the power “to promote the progress of science and the useful arts, by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries.” The first Congress exercised this power and enacted a copyright law which has been periodically revised by later Congresses.
In 1909, Congress passed the Copyright Act. It remained in effect for more than half a century, but had some fundamental problems affecting its usefulness. The 1909 Act was not the exclusive source of copyright law. Copyright protection or its equivalent was also provided by common law (that body of law developed by the courts, independent of statutes) and various state statutes. This caused considerable confusion, since copyright protection, and avoiding copyright infringement, varied among the states and careful examination of a variety of different laws was required. Further, new technology, such as radio, microfilm, television, videotape, and computer software, created the need for a revision that would provide more appropriate copyright protection for newer information systems.
The Copyright Act was substantially revised in 1976, and its provisions became effective on January l, 1978. Under the Copyright Revision Act of 1976, the extent to which works are protected by copyright depends on whether they were published before 1978, created before 1978 but published thereafter, or created during or after 1978. It is important to be aware of the basic differences in the two laws and which law applies to a given work.
The 1976 Act largely resolved the problem of conflicting state laws by preempting and nullifying them. In other words, the copyright of all works created after 1978 are governed solely by the 1976 Act and may not be regulated by the states. However, the Act does not preempt the common law or the statutes of any state for copyright claims that are not within the scope of the federal statute.
In 1988, the Act was amended to facilitate the United States becoming a party to the international copyright treaty known as the Berne Convention. One important aspect of the revisions for writers is that copyright notices are no longer required as a condition for copyright protection. However, as discussed in chapter 4, such notices are strongly recommended.
WHAT IS COPYRIGHT?
A copyright is a collection of five exclusive intangible rights. These are:
1. the right to reproduce the work;
2. the right to prepare derivative works;
3. the right of distribution;
4. the right to perform the work;
5. the right to display the work.
Under the Copyright Act of 1976, the general rule is that protected works may be reproduced only with the permission of the copyright owner. There are some significant exceptions, however, which are discussed in chapter 5.
Copyright also covers the right to prepare derivative works based on the copyrighted work. A derivative work is one that it based on another work. Under copyright law, the holder of the copyright has the sole right to prepare such works or license that right to others. Examples of derivative works include dramatizations, fictionalized versions, film versions, abridgments, condensations, annotated editions, and any other work that is recast, transformed, or adapted from an original.
Authors can even obtain a copyright on a work derived from a work in the public domain if a distinguishable variation is created. For example, the Latin text of Virgil’s Aeneid cannot be copyrighted, but an original translation can be. As a result, no one would be able to legally reproduce the translation, whereas anyone may copy Virgil’s original or create other translations.
The copyright holder has the initial right to control distribution of copies of the protected work to the public. However, once an author conveys a copy of the protected work, the right to control the further distribution of that copy, by virtue of the copyright law, ends. This rule, known as the first-sale doctrine, does not apply if the work is intended to be in the temporary possession of someone, such as by a rental or loan. In these instances, the copyright owner retains the right to control the further sale or other distribution of the work. In addition, the first-sale doctrine does not apply if the author or copyright owner contracts with the purchaser to restrict the purchaser’s freedom to distribute or dispose of the copy.
The next aspect of copyright is the right to display or perform the work in public. Once the copyright owner has sold a copy of the work, however, the owner of the copy generally has the right to display that copy.
OWNERSHIP
The general rule regarding ownership of copyright is that the author of a work is the initial owner of the copyright in that work. Unless there is a written agreement that transfers the copyright to another, the author retains the copyright.
The authors of a joint work are co-owners of the copyright in the work. A joint work is a work prepared by more than one author with the intention that their contributions be merged into inseparable or interdependent parts of the whole. If there is no intention to create a unitary work, then each author may own the copyright to that author’s individual contribution. For example, one author may own the rights to the written text and another the rights to the illustrations. Theatrical works, for example, are generally considered joint works, coauthored by the script writer, composer, lyricist, set designer, choreographer, director, and others who have contributed to the final production. The owner of the copyright may be determined by a contract entered into by the contributors. In order for there to be a joint work, each author’s contribution must be independently copyrightable. Mere ideas, directions, and suggestions are not sufficient to entitle a person to the status of being a joint author.
Work for Hire
The exception to the rule that the author owns the copyright in a work is the work for hire doctrine. If the work was created by an employee as part of his or her job duties, it is considered a work for hire. The copyright in these works belongs to the employer, and the parties cannot directly contract otherwise. An employment contract may provide that creating such material is not part of the scope of employment. In this case, it is probable that the employee will be considered the owner of the copyright. Care should be exercised in drafting such a contract so that it will produce the desired result. Another way to accomplish this is for the employer to assign the copyright to an employee.
Under the Copyright Act of 1976, a work created by an independent contractor (as opposed to an employee) may be considered a work for hire only if
1. the contractor and employer agree in writing that the work performed is to be a work for hire; and
2. the work is specially ordered or commissioned to be a contribution to a collective work, translation, supplementary work (one that introduces, revises, comments upon, or assists a work by another author), a compilation, an instructional text, answer material for a test, an atlas, a motion picture, or an audiovisual work. In the absence of a written agreement, the independent contractor will own the copyright in a commissioned work.
Determining whether a particular work qualifies as a work for hire can be difficult. It is not always clear whether the author was an employee or a contractor of the party claiming the copyright. An author is more likely to be considered an employee the closer the relationship is to regular, salaried employment. For example, the copyright in articles written by a journalist working on the staff of a newspaper will be owned by the newspaper, but the copyright to articles written by a freelancer will not be, absent a written agreement to the contrary. When evaluating whether a party is an employee or an independent contractor, courts look to factors such as
• the degree of control the employer had over the work (its content or style);
• the employer’s ability to control the employee (working hours and schedule); and
• the conduct of employer (the nature of the employer business and method of compensation, such as lump sum payment or paycheck).
These can be complex issues. Contracts should be drafted by experienced and knowledgeable attorneys in order that the desired outcome can be achieved.
WHAT CAN BE COPYRIGHTED?
The Copyright Act provides protection for a limited time to creators of works that meet certain legal requirements. (Issues surrounding that protection are discussed in chapter 4.) The scope of works that can be protected is very broad, and encompasses, but is not limited to, writings, images, music, architectural design, recordings, and choreography.
To qualify for protection, the work must be independently created by an author and show at least some minimal creativity. For example, an alphabetical list of customers published by a telephone company was held not to be entitled to copyright protection by the US Supreme Court in Feist Publications, Inc. v. Rural Tel. Serv. Co., but a directory that arranged the subscribers’ information in an original way—for example, into categories such as net worth or age—likely would be.
The requirement that the work show some creativity to qualify for copyright protection does not require that the work be of a particular quality or suited to particular tastes. In the past, the Copyright Office occasionally denied registration to works considered immoral or obscene, even though it had no express authority for doing so. This practice has changed. The Copyright Office will not attempt to decide whether a work is obscene and copyright registration will not be refused because of the questionable character of any work.
Nonetheless, the Copyright Office is authorized by the Copyright Act to draft regulations that define the scope of copyright coverage, and has chosen to deny protection to blank forms and similar works, designed to record rather than convey information. This category includes time cards, scorecards, address books, and the like. Even items such as these, however, have been granted copyright protection for certain creative embellishments. Short phrases, such as titles, slogans, or mottoes, cannot be copyrighted. However, these types of works may be protectable under trademark law.
The other critical requirement for copyright protection is that the work be fixed in a tangible medium of expression. For writers, this requirement is generally simple to meet. A literary work is protected by copyright as soon as it is handwritten, typed, or entered into a computer. Spoken words are not protected unless they are fixed into a recording of any kind or read from text. In the first case, the protection extends to the contribution of the person whose voice is captured and the contribution of the person responsible for capturing and processing the sounds to make the final recording, if any. In the second instance, the text being recited is protectable—extemporaneous speech is not.
The 1976 Copyright Act expressly exempts from copyright protection any idea, procedure, process, system, method of operation, concept, principle, or discovery. In other words, a copyright extends only to protect the expression of creations of the mind and not to the ideas themselves. Frequently, there is no clear dividing line between an idea and its expression—a problem that is considered in greater detail in the section on infringement later in this chapter. For now, it is sufficient to note that no matter how original or creative a pure idea such as a mathematical equation is, it cannot be copyrighted.
Basic plot ideas or themes are not protected by copyright. Fictional characters, when sufficiently developed and expressed, can be protected by copyright. Cartoon characters, which are visual works, are sufficiently delineated to qualify for copyright protection. Unfortunately, the standard is more difficult to apply to characters described in written works. Clichéd characters of the type that naturally flow from a common theme are considered to be ideas, and therefore cannot be copyrighted. An example would be a waiter in a short story who is incidental to the plot and does nothing more than take an order.
As plots become more developed and characters become more idiosyncratic, at some point they cross the line into expression and may be protected by copyright. A good example of such a character is James Bond, as developed in the works by Ian Fleming and various screenwriters.
Compilations may also be copyrighted, provided that the preexisting materials are collected and arranged in a new or original form. Compilations such as magazines can be copyrighted as a whole, even though individual contributions or articles may also be individually copyrighted. Similarly, compilations of works that are not otherwise protected by copyright may be copyrighted if the requirements for minimum creativity and originality are met in selecting and arranging the pieces included in the compilation.
TRADEMARK ISSUES
Trademark laws prohibit using marks in ways that might confuse consumers over the origin or sponsorship of a product or service. For the most part, trademarks do not pose significant legal issues with regard to writers, although misconceptions are not uncommon. Absent using a trademark in a way that would likely confuse consumers, writers are free to refer to trademarks in their works. Similarly, there is no requirement that a writer place a trademark symbol, such as ™, after a brand name when mentioned in a work. For example, an author of a cookbook is free to describe a recipe in which an ingredient identified as “Rice Krispies” is mixed with another ingredient identified as “Coca-Cola,” instead of the more traditional ingredient of milk. There is no need to identify the ingredients as puffed rice cereal or as cola beverage, nor must a trademark symbol be placed next to the product names. Although the Coca-Cola Company and the Kellogg Company might find the use of their products in the recipe unappetizing, the recipe does not imply that either company is endorsing the book and they would, therefore, likely have no basis for claiming infringement. On the other hand, using The Coca-Cola Company Book of Breakfast Ideas as the title would imply an endorsement, and thus would be actionable if not authorized by the company.
Trademark disparagement can be a complicated issue, since some states have laws regarding use of trademarks to malign or ridicule products and companies. It is not unlawful to mention a trademark in truthful critical evaluation of a product or company. For example, one is free to state that the safety of ephedra products such as Metabolife has been questioned by federal regulators. On the other hand, false or unflattering depictions of a trademark can constitute disparagement under some circumstances. For example, a screenplay in which the main character donned a uniform similar to that worn by the Dallas Cowboys Cheerleaders and engaged in various sex acts while clad, to various degrees, in the uniform was found to disparage the trademark of the Dallas Cowboys Cheerleaders organization.