Copyright Confusion? By Neil Wilkinson

What I am writing at this moment is protected by copyright. As soon as my individual expression is fixed in a tangible medium, I can do any of the following things with it: reproduce it in copies, make derivative works of it, distribute the work in copies, perform the work, display the work, or broadcast the work. This “bundle of rights” extends to the holder of the copyright securing nearly complete control over the work. Notice that I referred to the holder of the copyright and not the author of the work, who may be one in the same, but not necessarily. Another of the rights enjoyed by an author of any type of work is the right to transfer it to another.

Recent Copyright Law Changes
That this work is protected as soon as it is created is a relatively new development in copyright law. Since the first U. S. Copyright Act in 1790 until the Copyright Act of 1976, it was essential to register the work with the U.S. Copyright Office if it was to be protected at all. In addition, many types of works enjoyed no protection whatsoever. With each new copyright act, new forms of expression were added. For example, musical compositions enjoyed no protection until the twentieth century, but the copies of the musical score did. Architectural works were not protected, nor were performances. Even now, unless the performance is fixed in a tangible medium, that is, recorded in some way, it will be unprotected.

According to the United States Copyright Act, protection is provided for “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they [the original works] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” “Original works of authorship” are more specifically enumerated as “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; and architectural works.”

Duration of Protection
The duration of copyright protection depends upon when a work was published. Any work published in this country before 1923 is in the public domain. That means anyone may use it or quote freely from it, without permission or license, without fear of infringing on another’s copyright. Remember though, it is accepted practice to properly cite the work to avoid any suggestion or hint of plagiarism. For works published between 1923 and 1977, the duration of protection is ninety-five (95) years from the date of publication. Protection for a work created, yet not published, prior to1978, lasts for the life of the author plus seventy (70) years. Copyright for unpublished works of authors dead more that seventy (70) years lasted until December 31, 2002. The copyright for any eligible work published between 1923 and 1963 must be renewed if it is to remain out of the public domain. A good example of this would be the works of Ernest Hemingway, which have been so much a part of our literary existence for so long that we might assume them to be in the public domain. Yet, an inspection of the copyright notice in nearly any piece of his work indicates otherwise. Herman Melville’s works, by contrast, are solidly in the public domain.

What Can’t Be Copyrighted
That seems to cover the spectrum, doesn’t it? Well, not exactly. Let’s consider what cannot be copyrighted. The United States Copyright Act mandates that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Now what does that mean? Surely, you must be saying, the ideas that I have incorporated into my great American murder mystery are mine, and mine alone. That is true, with this caveat. While your plot, characters, and individual expression can be protected, the notion of scurrilously murdering the rich, elderly scion and blaming it on the butler is not. What you do with the premise is yours, but the basic idea is up for grabs. Other examples too numerous to name abound. Suffice it to say, that other areas of intellectual property law, patent, trademarks and trade dress, and trade secret laws may make purloining a process, catchy phrase, distinctive packaging, or a logo, or the formula for Coca-Cola® a very expensive proposition for an infringer.

There is no copyright protection for facts like historical information, scientific data, or current events. That is, no one can control the facts themselves. A compilation or other treatment of facts must contain, as Justice Sandra Day O’Connor confirmed in Feist Publications, Inc. v. Rural Telephone Service Co. 499 US 340 (1991) “a modicum of creativity” to enjoy protection. What this means is, and this is particularly important for writers of non-fiction, that the facts you handle are not yours, but the way you handle them is.

Work for Hire Doctrine
Now that we have that settled, what about things written in the course of employment? The “Work for Hire Doctrine” stipulates that the copyright for work created by an employee in the course of his or her employment belongs to the employer. If the writer works as an independent contractor the work belongs to the writer, unless it is clear at the outset (signing a contract is a good indicator) that the work is “made for hire.” Then, the party commissioning the work owns the copyright. However, the work must be part of a larger literary work (an magazine article, or individual works in an anthology), part of a motion picture or other audiovisual work (a screenplay), a translation, a supplementary work (foreword, afterword, introduction, chart, editorial note, bibliography, appendix or index), a compilation, a text, a test or answer material for a test; or an atlas.

Publishing Copyright Notices
Are copyright notices necessary? Is protection lost without them? The answers are, in this order, yes and no. A March 1, 1989 change in the Copyright Act eliminated the requirement that a copyright notice, i.e., ©, be affixed to the work in order to protect it. Being fixed in a tangible medium, as discussed above, takes care of this problem, at least in part. It is a good idea to copyright and to use the symbol to place potential infringers on notice that the work is protected. It’s a little hard for an infringer to claim that he or she was unaware of a copyright when the notice is clearly present on the work. (Current wisdom suggests that putting the symbol on works submitted to editors, agents, publishers, and the like is considered by them to be amateurish and sends all sorts of negative signals to the very people an author wants considering her work.) This change to the Copyright Act is, however, not retroactive.

What about registration and deposit of the work with U.S. Copyright Office ( Just as with the ©, it is not necessary to register for a work to be protected. But it is a good idea. The reason is that the Copyright Act provides remedies unavailable to authors of unregistered works. If an unregistered piece of work is infringed, the author has a limited time from the date of the discovery of the infringement to register the work in order to enjoy the additional protections available under the Act. If a work is registered within three months of an infringement (or prior to the infringement), a copyright owner is relieved of the challenge of proving real or actual damages, loss of profits, royalties, and things of that sort, and can rely on the damages set forth in the law. The effect then is that damages are based on equity, that is, what is fair. Rather than trying to prove that your book, if not stolen, would have become your bestseller, the statute provides the remedies. And, finally, registration makes an infringed author eligible to collect attorney’s fees from the infringer. But more about all that later.

What is infringement? An easy, and then not so easy question to answer, infringement is a direct offense to any of the copyright owner’s rights. If an infringer does anything with the work that is the exclusive province of the copyright owner, like reproducing the work, copying it, etc., he, she, or it (companies and organizations count) infringes. An infringement can be direct, as when portions of your work are clearly lifted by another and passed off as their own. Or the infringement can be indirect, where others aid in the offending act. There are two types of indirect infringement. Vicarious infringement, which occurs when a company or organization indirectly receives economic benefit from a direct infringer’s activities. A concessionaire selling pirated materials on the premises of a chain of department stores was the basis of the landmark case on that issue. A second form of indirect infringement is contributory infringement where the indirect infringer directly contributes to the infringement by another, and profits thereby.

To avoid infringing a copyright, you must obtain permission to use the work. In some cases that may be easier said than done. What if the publisher has folded, or been part of multiple mergers? What if the author has “shuffled off this mortal coil,” or simply cannot be located. The safest course is to inquire of the U.S. Copyright Office, search its records, and do the best job possible to communicate with the copyright owner at the most current address available. The Internet can prove useful when searching for authors or publishers of copyrighted works. Make sure to document each step of your search. If it produces nothing, the risk in using the work still exists, as any use could constitute an infringement and someone could come forward with a complaint. However, being able to demonstrate that a reasonable and diligent search for the author was made may eliminate any claim by the author that the infringing use of the work was willful, a distinction we will discuss in a moment. In the end, it’s the user’s call and the user’s risk. The more pains taken, the better.

What is Fair Use?
Just as permission is not required for works in the public domain, the same is true when the “Fair Use Doctrine” applies. Spelled out in the Copyright Act, “fair use” is intended to “strike a balance between the needs of a public to be well-informed and the rights of copyright owners to profit from their creativity . . . authorizing the use of copyrighted materials in certain circumstances deemed to be ‘fair’- even if the copyright owner doesn’t give permission.” Stanford University Libraries: Copyright and Fair Use. The Copyright Act specifies that “the fair use of a copyrighted work, including such use by reproduction in copies . . . or by any other means specified. . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Whether the use of a work is a fair the following factors will be considered: the purpose and character of the use . . . whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”

If the use potentially affects the sales of the copied material, it is usually not fair. So it is with uses that are done solely for commercial gain. Fair use is also determined when the use is transformative, that is, used to produce a new work rather than a verbatim copying, the use will likely be considered fair as long as it is properly credited. Education, commentary, literary review and criticism, journalism uses, scholarly research, scholarship and non-profit educational uses are much more likely to be judged fair than cases where the user is making a profit.

Libraries and educational institutions are allowed a “fair use” of copyrighted materials, but it is limited. In a presentation at the 2002 Modern Language Association Annual Meeting, Duane Webster, Executive Director of ARL cautions that those uses, “interlibrary loans, lending for classroom or off-premises use by patrons, archives, preservation, and duplication for fair use purposes, have all been restricted, in some cases severely restricted, and in other instances barred by licensing agreements . . . Previously, as owner of a particular copy of a book, a library was entitled to set the terms of patron access to that copy. In the new world of libraries as licensee of a digital work subject to technological measures, the library may be denied such right.” The Practical Realities of the New Copyright Laws: A Librarian’s Perspective.

Remedies for Infringement
If the use is not fair, and no permission has been granted to use all or part of a work, and the work has been registered, what then are the remedies for copyright infringement? Initial and often-employed steps are temporary and permanent injunctions that are simply orders of a court directing the infringer to cease the infringing conduct. Temporary injunctions are often granted before any hearing or trial on the issue if the copyright holder is able to show immediate actual or potential harm as a result of the infringement. Along with a permanent injunction that is usually obtained as a result of a settlement or a final court action, copyright owners may also be granted the authority impound and destroy all infringing works.

Section 504 of the Copyright Act specifies that a copyright owner can collect from an infringer actual damages, profits realized by the infringer, and statutory damages. Actual damages are exactly what they say they are, the damages actually suffered by the copyright owner as a direct result of the infringer’s actions. If the infringer makes any profit, the copyright owner can be awarded that profit. It is important to note that these damages are available to a copyright owner, whether the work is registered or not. They are intended to provide the copyright owner with misappropriated income realized by the infringing party. The problem for the copyright owner is that an infringement may not create significant losses to the copyright owner nor significant profits to the infringer to warrant the costs of a lawsuit. If all an author has left herself are the common law actual damages and return of profits, she may spend a lot of money to get nothing, apart from the satisfaction of protecting her work. But, satisfaction cannot be put in a bank account. That is why it is important to register a work, and to register any subsequent versions or derivatives of it that are produced.

According to the Copyright Act, statutory damages, i.e., those damages set our in the Act, apply without regard to actual damages or purloined profits. Statutory damages begin at $750.00 and top at $30,000.00 per work infringed. Proving that the infringer acted willfully or knew his actions were violations of law and continued after so learning may result in a court raising the damages to as high as $150,000.00 per infringed work. Engaging in a willful infringement solely for commercial advantage or private financial gain, or that involves works with a value of more than $1,000.00, each carry criminal penalties to include fines and terms in prison. As a final measure, a court finding that an infringement has taken place can order the infringer to pay costs and attorney’s fees to the copyright owner, which can be quite substantial.

Court cases across the country show just how large a copyright infringement case can become. Improper copying of college course material brought Kinko’s® and other copying services to grief. Dissemination of financial, legal, and other professional newsletters have been the subject of a number of suits, and the amounts in damages have reached millions when factoring each infringement times the statutory damage. Cable companies have gone to great pains to track down and file suits against every purchaser of cable descramblers they could find, made all the easier by the fact that they used the power of the Copyright Act to raid and seize the files of the manufactures of such devices. The unauthorized copying of computer software has been the bane of many manufacturers, businesses of every stripe, academic institutions, and even government and police departments. The Digital Millennium Copyright Act, a long and complex piece of legislation that inexplicably contains protections for boat hull designs, sets out damages and remedies for copyright infringement done in or facilitated by electronic means, including the Internet.

This article is not intended to offer legal advice, that’s what you hire your attorney to do. Instead, it’s intended to refine your knowledge in an area of law with that touches everyone due to the number of things protected by the Copyright Act, the amount of such material available, and to the level of media intensity we endure on a daily basis. You simply can’t help running into it nearly everywhere you turn. In that light, two things bear restating. When in doubt, get permission. And, register.

Neil Wilkinson is a practicing attorney and holds a Master’s Degree in Professional Writing from Kennesaw State University (KSU) in Kennesaw, Georgia, and Master of Laws (LL.M.) from the University of Georgia School of Law. Neil is also an adjunct professor of Intellectual Property Law in the MBA program at the KSU Michael Coles School of Business. He has published articles in legal and general interest publications, as well as poetry and short fiction in regional publications. With two novels completed, A Day in the Life of A Reasonable Man, a picaresque farce involving a fussy, overly-grammatical everyman who finds himself the plaintiff in a lawsuit against the most powerful televangelist in America, and Laughing Academy, a psychological/legal suspense novel, Neil continues work on other novels in various states of construction. Currently, he is seeking literary representation.