Copyright Basics

Overview of Copyright Law 

1. Nature of Copyright 

A copyright is essentially a set of exclusive rights in literary, musical, choreographic, dramatic and artistic works. The rights under copyright pertain to the reproduction, adaptation, public distribution and public display or performance of the work. These rights are limited in three basic ways;

  1. A copyright does not prohibit another author from independently producing the same or a similar work.
  2. Copyright protects only the particular expression of ideas not the ideas themselves.
  3. Copyrights extend neither to systems explained in works, nor to discrete facts contained within a work.

The Idea-Expression Dichotomy

Ideas, Concepts, Abstract Ideas ⇐——————————⇒  Expressions of Ideas & Original Works

No Copyright Protection ⇐——————————————————————⇒ Copyright Protected

2. Copyright Requirements 

Copyright is available for original works of authorship fixed in any tangible medium of expression now known or later developed from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.

  • Fixed in Any Tangible Medium of expression – Extemporaneous speech or a completely improvised dramatic or musical performance would not be covered.
  • Original Works of Authorship – An author need not have made an objective contribution to society (such a contribution would be required from an inventor in order to obtain a patent). Similarly, an author need not produce a work of recognized intellectual or artistic merit.
  • Derivative Works – Although works copied from other works do not qualify for protection, works which build on previous works, those which incorporate part of the earlier work but significantly add to it, can be protected but only to the extent of the new material that is added. These are referred to as derivative works.
  • Compilations – A similar result as with derivative works. 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 protection afforded extends only to the material newly contributed by the compiler. It does not affect the copyright status of the works incorporated.

3. Duration, Ownership and Formalities 

a. Duration of Copyright 

Copyright attaches automatically as soon as the work is put down on paper or tape or some other tangible medium. The duration depends on whether the author was one individual, more than one individual or someone creating the work in the employ of or at the direction of some other person or organization (works in hire).

b. Ownership 

The Copyright Act gives initial ownership to the author or authors who jointly create a work. In the case of works made for hire, a work prepared by an employee within the scope of his employment and certain works commissioned from independent contractors, the employer is considered the author.

As intangible property, a copyright can be transferred from the author or another, inter vivos or by will or by intestate succession in whole or in part. A grant of exclusive rights must be in writing and signed by the grantor. A non-exclusive grant may be oral. The grant may cover the entire scope of the copyright or be limited to a particular time period or territory. A grant given after January 1, 1978 may be terminated effective 35 years after the grant.

c. Notice and Registration of Copyright 

The role of the copyright notice has been sharply reduced since the United States adherence to the Bern Convention. Prior to January 1, 1978, in order to enjoy a copyright, published works had to bear a copyright notice. Although the 1976 Act continued to prescribe three elements of notice; a copyright word or symbol, the name of the author and the year of first publication the law was revised effective March l, 1989. Notice is no longer required for copies and phono records publicly distributed after that date. However, notice continues to be routinely used if for nothing more than an inexpensive means for the copyright owner to call its claim to the attention of potential users.

note: Although registration with the Copynght Office is not a condition to a valid copyright, it is generally a prerequisite to an action for infringement.

4. Scope of Exclusive Rights Under Copyright 

Exclusive Rights

a. Reproduction Right 

The most basic right comprised within a copyright is the reproduction right. The right protects against verbatim copying and against paraphrasing. It does not protect coincidental similarities in a work created independently and without reference to the first work.

The second author must have copied the protected material, as he may freely copy a copyrighted work’s ideas and discrete facts so long as he does not copy the expression or particular manner in which the first author set forth these ideas or facts.

In addition, to violate the exclusive right of reproduction the second author’s copying must be substantial” There is no set rule as to what may be considered substantial as even a small extract from a larger work may be found to infringe.

b. Derivative Works 

The adaptation right overlaps somewhat with the reproduction right. A derivative work is a work based upon one or more pre-existing works and includes any form in which a work may be recast, transformed or adapted.

c. Distributive Right 

The copyright owner has the exclusive right to distribute the work to the public by sale or other transfer of ownership, or by rental, lease or lending. The copyright owner has the right to control only the first public distribution of a particular copy of the work (first sale doctrine).

d. The Right of Public Performance and Display 

The statute defines a public performance or display as one presented at a place open to the public or where a substantial number of persons outside of a normal circle of family or its social acquaintances is gathered, or presented by transmission. The display right covers pictorial, graphic and sculptured works as well as conventional works such as movies and newer works such as video games.

5. Limitations on the Exclusive Rights Under Copyright

Exemptions and Compulsory Licenses 

There are a number of exemptions applied to copyrighted materials. Classroom and several non-commercial uses fall within these exemptions. In some instances, the Act removes certain reproductions, performances and displays from the owner’s exclusive control and substitutes a compulsory licensing scheme. This permits certain use of the copyrighted material without the owner’s consent but rsquires the user to adhere to statutory formalities and to pay specific fees to the copyright owner. The most important example relates to making recordings of non-dramatic musical works. Once the owner of a non-dramatic musical composition has authorized distribution to the public of a phono record embodying the composition, another producer may make and distribute phono records of the composition (however, he must produce an independent recording using his own musicians and arrangement).

Fair Use 

The Fair Use Doctrine was developed in order to allow unauthorized uses that the courts thought were reasonable and did not unduly deprive the plaintiffs work of a market. Criticism comment, news reporting, teaching scholarship and research fall within those unauthorized uses. Four factors must be reviewed in response to the defense;

  1. The nature of the defendant’s use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portions taken from  the copyrighted work
  4. The effect of the taking upon the potential market for the copyrighted work.

6. The Subject Matter of Copyright

Copyrightable Subject Matter

§102 Subject matter of copyright: In general

(a) Copyright protection subsists in accordance with this title in original works of authorship fixed in any tangible medium of expression now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

  1. Literary works
  2. Musical works, including any accompanying words
  3. Dramatic works, including any accompanying music
  4. Pantomimes and choreographic works
  5. Pictorial, graphic and sculptural works
  6. Motion pictures and other audiovisual works
  7. Sound recordings
  8. Architectural works

Original Works of Authorship
The two fundamental criteria of copyright are

1. Originality
2. Fixation in tangible form


The phase “original works of authorship” does not include requirements of novelty, ingenuity or esthetic merit. The subject matter affected by the gradual expansion in the types of works afforded protection has fallen into two general categories:

  1. Scientific discoveries and technological developments have made possible new forms of creative expression that never existed before. In some of these cases the new expressive forms – electronic music, filmstrips, and computer programs, for example – could be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without the need of new legislation.
  2. In other cases, such as photographs, sound recordings, and motion pictures, statutory enactment was deemed necessary to give them full recognition as copyrightable works.

The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author, meaning only that the work was independently created by the author (as opposed to copied from other works), and that it posses at least some minimal degree of creativity. The amount of creativity required is extremely low, even a slight amount will suffice. There must be some creative spark no matter how crude, humble or obvious. Originality does not signify novelty. A work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.

Categories that do not qualify as original work of authorship include:

  • Book, movie and song titles
  • Short phrases and slogans
  • Printed forms
  • Compilations of facts
  • Works consisting entirely of information that is in the public domain, e.g. information obtained from public documents.

These items are considered too short or lack the originality required to qualify for copyright protection.

Fixation in tangible form 

As defined in §101 of the Act, a work must be fixed in a tangible medium of expression which may be one now know or later developed. The fixation is sufficient if the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of some machine or device. A work would be considered fixed in a tangible medium of expression if there has been an authorized embodiment in a copy or phono record and if that embodiment is sufficiently stable to permit the work to be perceived, reproduced or otherwise communicated for a period of more than a transitory duration.

7. Copyright Litigation 

Exclusive jurisdiction over copyright and patent claims is vested in 28 USC §1338(a) and rests in the federal courts. A party seeking to prove an infringement of exclusive rights under copyright must make out the following elements of a claim;

  • Ownership of a valid copyright. If registration occurs within 5 years of first publication of the work the certificate of registration serves as prima facie evidence of the validity of the copyright.
  • Copying of the plaintiffs work by the defendant. There can be no copyright infringement unless the defendant came in contact with and in fact copied the plaintiffs work. Look to see if the defendant had access to the plaintiffs work and if there are similarities of expression that are probative of copying rather than independent origination.
  • As a result of copying, the defendant’s work is substantially similar to the plaintiffs work. Substantial similarity may be determined with respect to either the quality or quantity of the copying. Hence, copying a small but central portion of a work may constitute substantial.

If these elements are demonstrated, the plaintiff has made a prima facie case of copyright infringement. The burden then shifts to the defendant to justify his conduct by the application of a relevant exemption.