Copyright Considerations by Noel Lareau
Bill Crabtree | 10/19/2012

Copyright Factoids
 
 
1. The first U.S. copyright law is in the Constitution, and states that the Congress shall have power to promote science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Later laws expanded the scope of copyrightable materials to include diverse types of original literary, dramatic, musical, artistic, intellectual, and architectural works
 
2. According to the U.S. Copyright Office, copyright now means “that body of exclusive rights granted by law to copyright owners for protection of their work.” Works no longer need to be published to be copyrighted – a work is copyrighted as soon as it is set into any fixed medium which enables it to be seen or heard again.
 
3. “Copyright” literally means the right to make copies. A copyright owner has the exclusive right to reproduce the work or allow others to do so, make derivative works from the original work, sell or distribute copies of the work, and publicly perform or display the work. Each of these rights may be individually sold or transferred.
 
4. What may be copyrighted are: original works in any fixed known (or future) medium of expression, including literature; music with any accompanying words; drama with any accompanying music, pantomime; choreography; pictorials; graphics; sculpture; motion pictures and other type of audiovisuals; architecture; and sound recordings. What may not be copyrighted are any ideas, processes, procedures, systems, concepts, principles, discoveries, or methods of operation within copyrightable works, no matter how they may be presented. (Some of these may be able to be patented, but that’s another issue.)
 
5. Who originally owns a copyright? Usually the creator of a work owns the copyright to that work. The exception is if a work was made in the course of employment, in which case the employer owns the work unless a written agreement states otherwise. If a work is created by more than one person, and the intent was for the parts to be inseparable, the work is owned jointly. If these parts may be separated, then each part is owned by its creator (unless, or course, it is owned by the employer as above.)
 
6.  Remember the exclusive rights that copyright confers? – reproduction or allowing others to do so, making derivative works, selling or distributing copies, and public display or performance. These rights may be assigned to someone else which means all rights are unconditionally transferred. Or one or more of these rights may be licensed to someone else, either exclusively, or non-exclusively so that others may also be granted those rights.
 
7. United States copyright laws have undergone several major overhauls (and will again.) In addition, the U.S. has copyright agreements with foreign countries which effect international copyright law. Consequently, United States copyright law is a patchwork of regulations which effects works in different ways, depending on when and where they were made, recorded, and/or published.
 
8. United States laws, State laws, and court decisions are all in the public domain and so may not be copyrighted.
 
9.  What is for sure in the public domain (i.e. not under copyright protection) are works made by a U.S. citizen in the U.S. in 1922 or earlier.
 
10. Arrangements of tunes and songs may be copyrighted while the original piece is in the public domain. Copyright notations often do not state if it is the tune/song which is copyrighted, or the arrangement.  Also, performers of tunes/songs are often credited with writing them, when in fact they did not.  So to find out if a song or tune is in the public domain, one must search for its earliest documented occurrence
 
11. The U.S. Copyright Office maintains an online catalog of “works registered and documents recorded” since 1/1/1978. An online search of these documents may be initiated at http://www.copyright.gov/records/ - click “Search the Catalog” to begin. Any work created after 1/1/1978 will not pass into the public domain until at least 2048, and (most likely) later.
 
12. The concept of “Fair Use” is part of copyright law. It puts some limitations on the rights of copyright ownership. Non-authorized uses of copyrighted material are protected from being copyright infringements if they qualify as being “Fair Use.” More on this next time.
 
13. “Fair use” of copyrighted materials may be made for such purposes as criticism, comment, news reporting, teaching, scholarship, and research. To determine if material meets the criteria of fair use, four factors must be weighed. More on this next time.
 
14. The first factor to be weighed in determining if use of copyrighted material is “fair use” is (to quote the U.S. Copyright Law) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” “Educational purposes” can be tightly defined as being provided by an accredited institution of learning, or more loosely defined. 
 
15. The second factor to be weighed in determining if use of copyrighted material is “fair use” is (to quote the U.S. Copyright Law) “the nature of the copyrighted work.” The use of material that is factual is more likely to be considered fair use than is the use of creative material, and use of published work (including published on the internet) is more likely to be considered fair use than is use of unpublished material.
 
16. The third factor to be weighed in determining if use of copyrighted material is “fair use” is (to quote the U.S. Copyright Law) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole…” For example, the North Carolina Board of Education recommends that teachers may use up to 10% of a musical composition or sound recording, to a maximum of 30 seconds.
 
17. The fourth factor to be weighed in determining if use of copyrighted material is “fair use” is (to again quote the U.S. Copyright Law) “the effect of use upon the potential market for or value of the copyrighted work.” A use which would not affect any aspect of the marketability of a copyrighted work would be looked on more favorably than one which did.
 
18. So in determining if use of copyrighted material falls under “fair use,” the four involved factors – the purpose and character of the use, the nature of the use, the amount used, and the potential effect of the use upon the market value of the copyrighted work – are considered as a whole. A use may be obviously fair or not (“black and white”) or the determination be made by the balance of the factors involved (“shades of gray.”)





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