Here is the promised guest post on copyright, very kindly contributed by Jane Collen, who asked me to add the website of her law firm, where you’ll find more information: http://www.collenip.com/. I visited the site and found it most helpful to click on “News and Events” and then on “Podcasts and Blogs” and then on the blog on copyrights. It’s wonderful for those of you who have a legal bent and like getting into the weeds.
If you have questions about the post or about other aspects of copyright or about projects you’re working on that make you wonder about copyright, you can get in touch with Jane directly in the ways she suggests at the bottom of the post, or you can post your questions here, which I’d prefer for this week, so we can all learn from them and from Jane’s answers, because she’s going to keep an eye on the blog and respond. Ta da! Here it is:
I had the pleasure of meeting Gail at the recent Author’s
Tea in Chappaqua, NY. We began chatting
and I mentioned I was a lawyer practicing in the field of Intellectual Property
– patent, trademark and copyright law, and she mentioned her readers had a lot
of copyright questions. I quickly
volunteered for the honor of doing a guest blog – two of my favorite things,
which go hand in hand: writing and copyrights!
Tea in Chappaqua, NY. We began chatting
and I mentioned I was a lawyer practicing in the field of Intellectual Property
– patent, trademark and copyright law, and she mentioned her readers had a lot
of copyright questions. I quickly
volunteered for the honor of doing a guest blog – two of my favorite things,
which go hand in hand: writing and copyrights!
COPYRIGHT PROTECTION – AUTHORS SEE THE DOUBLE EDGE OF THE
SWORD (which is still not mightier than the pen (word processor))
SWORD (which is still not mightier than the pen (word processor))
by Jane F. Collen,
The right
to a limited protection of the fruits of our creativity is so fundamental that
it is guaranteed by our Constitution.
This blog post is meant to serve as a primer on how to capture those
rights bundled into Copyright, without inadvertently trespassing on anyone
else’s rights, and does not serve to provide legal advice.
to a limited protection of the fruits of our creativity is so fundamental that
it is guaranteed by our Constitution.
This blog post is meant to serve as a primer on how to capture those
rights bundled into Copyright, without inadvertently trespassing on anyone
else’s rights, and does not serve to provide legal advice.
Beginning at the source, Article 1
Section 8 states “Congress shall have Power. . . To Promote the Progress of
Science and useful Arts, by securing for limited Times, to Authors and
Inventors, the exclusive Right to their respective Writings and Discoveries.”
Section 8 states “Congress shall have Power. . . To Promote the Progress of
Science and useful Arts, by securing for limited Times, to Authors and
Inventors, the exclusive Right to their respective Writings and Discoveries.”
In order to
be protectable by copyright, a work must be an original work, fixed in any
tangible medium of expression. The
protection covers the work – whether it is a novel, a picture, a photograph, a
motion picture, a dramatic work, a dance, sculpture, music, sound recording or
architectural work—it does not cover the idea behind it.
be protectable by copyright, a work must be an original work, fixed in any
tangible medium of expression. The
protection covers the work – whether it is a novel, a picture, a photograph, a
motion picture, a dramatic work, a dance, sculpture, music, sound recording or
architectural work—it does not cover the idea behind it.
There is no
way to protect the idea with a copyright. (That is the job of patents – a much
more complex form of protection.) We can
protect what we call it (that is the brand or the source indicating language by
a trademark registration), how we present or perform it, how we write about it
and how we manufacture it. But we cannot
we protect the title of a book, or characters.
You CAN protect the brand of a series of books (I am working on book
three of the Enjella™ Adventures) but not the title of a single creative
work. Nor can you completely protect the
plot of the book.
way to protect the idea with a copyright. (That is the job of patents – a much
more complex form of protection.) We can
protect what we call it (that is the brand or the source indicating language by
a trademark registration), how we present or perform it, how we write about it
and how we manufacture it. But we cannot
we protect the title of a book, or characters.
You CAN protect the brand of a series of books (I am working on book
three of the Enjella™ Adventures) but not the title of a single creative
work. Nor can you completely protect the
plot of the book.
Therefore,
sometimes it is not easy to establish if the work is an “original work of
authorship”. To be original, the work
must be produced by “the author’s own intellectual effort,” as opposed to
merely copying a preexisting work. But
it does not necessarily have to be novel (meaning new, innovative); it just
must have an appreciable amount of creative authorship. Usually, however, the level of creativity
required is exceptionally low. You
can’t protect a one word “composition” or a short bumper-sticker phrase. But
just about anything else you write will be original, as long as you’re not
copying the writing of someone else. The
best example of work which may not qualify for originality purposes may be just
compiling a list, for instance. As the courts see it, “the sweat of the brow”
that you put into your work won’t necessarily make it original. But writing just about anything in your own
words satisfies “originality”. The gamut of protection runs from courts finding
a compilation of non-protectable facts is copyrightable if it “features an
original selection and arrangement of facts” to finding even an original
expression not protectable “when there is essentially only one way to express
an idea”.
sometimes it is not easy to establish if the work is an “original work of
authorship”. To be original, the work
must be produced by “the author’s own intellectual effort,” as opposed to
merely copying a preexisting work. But
it does not necessarily have to be novel (meaning new, innovative); it just
must have an appreciable amount of creative authorship. Usually, however, the level of creativity
required is exceptionally low. You
can’t protect a one word “composition” or a short bumper-sticker phrase. But
just about anything else you write will be original, as long as you’re not
copying the writing of someone else. The
best example of work which may not qualify for originality purposes may be just
compiling a list, for instance. As the courts see it, “the sweat of the brow”
that you put into your work won’t necessarily make it original. But writing just about anything in your own
words satisfies “originality”. The gamut of protection runs from courts finding
a compilation of non-protectable facts is copyrightable if it “features an
original selection and arrangement of facts” to finding even an original
expression not protectable “when there is essentially only one way to express
an idea”.
Copyright protection
actually conveys more than just one right.
The author has the right to reproduce her work, prepare derivative
works, distribute copies of the work to the public (by sale, or lease, or
rental or lending), perform the work publicly, display it publicly and perform
it publicly by means of digital transmission.
As you can imagine there have been all kinds of lawsuits concerning the
definition and extent of these rights. The
Copyright Law was recently revised (1998) to make the rights clear in the digital
millennium. In fact the revised law is
called The Digital Millennium Copyright Law.
(Our forefathers did not foresee ebooks – as omniscient as they seemed
to be.)
actually conveys more than just one right.
The author has the right to reproduce her work, prepare derivative
works, distribute copies of the work to the public (by sale, or lease, or
rental or lending), perform the work publicly, display it publicly and perform
it publicly by means of digital transmission.
As you can imagine there have been all kinds of lawsuits concerning the
definition and extent of these rights. The
Copyright Law was recently revised (1998) to make the rights clear in the digital
millennium. In fact the revised law is
called The Digital Millennium Copyright Law.
(Our forefathers did not foresee ebooks – as omniscient as they seemed
to be.)
“For how
long do these rights last?” you ask.
For works created on or after January 1, 1978 for individual authors,
copyright protection lasts for the life of the author plus 70 years. (This term was just recently extended from
author’s life plus 50 years by the 1998 revision). For corporate authors, the term was extended
to 120 years after creation or 95 years after publication.
long do these rights last?” you ask.
For works created on or after January 1, 1978 for individual authors,
copyright protection lasts for the life of the author plus 70 years. (This term was just recently extended from
author’s life plus 50 years by the 1998 revision). For corporate authors, the term was extended
to 120 years after creation or 95 years after publication.
The author
owns the copyright. Simple, right? Not so fast!
What about your web site that you paid a graphic designer to create copy
and art for? Do you own that? Are you sure?
There is such a thing as a “work for hire” if someone is explicitly
hired to prepare a work, then the employer, or person who hired the author owns
the copyright. But sometimes it is
difficult to establish that the arrangement truly is a work for hire.
owns the copyright. Simple, right? Not so fast!
What about your web site that you paid a graphic designer to create copy
and art for? Do you own that? Are you sure?
There is such a thing as a “work for hire” if someone is explicitly
hired to prepare a work, then the employer, or person who hired the author owns
the copyright. But sometimes it is
difficult to establish that the arrangement truly is a work for hire.
A work for
hire usually is defined as a work prepared by an employee within the scope of
his or her employment; or a work specially commissioned for use as a
contribution to a collective work. Are
you thinking author/illustrator? Well,
you are right, but unless the parties agree in a written instrument signed by
each party that the work shall be considered a work for hire, the illustrator,
even if hired by the author, probably still has the right to make derivative
works and reproduce the illustrations apart from the published book.
hire usually is defined as a work prepared by an employee within the scope of
his or her employment; or a work specially commissioned for use as a
contribution to a collective work. Are
you thinking author/illustrator? Well,
you are right, but unless the parties agree in a written instrument signed by
each party that the work shall be considered a work for hire, the illustrator,
even if hired by the author, probably still has the right to make derivative
works and reproduce the illustrations apart from the published book.
And to add
to your agita, websites created by independent contractors are NOT considered
works for hire, so if you don’t want anyone else to have the same logo as you
and the same web design, you must be sure to require a written copyright assignment
from your web designer.
to your agita, websites created by independent contractors are NOT considered
works for hire, so if you don’t want anyone else to have the same logo as you
and the same web design, you must be sure to require a written copyright assignment
from your web designer.
Gail
recently featured an interesting audio clip from NPR about the fact that the
song Happy Birthday still enjoys copyright protection. Even though the music, originally composed by
the Hill sisters who were savvy enough to obtain copyright protection, just
recently went into the public domain, the words are still protected since the
copyright was assigned to a publishing company.
Which leads me to my point – copyrights are transferable by written
agreement.
recently featured an interesting audio clip from NPR about the fact that the
song Happy Birthday still enjoys copyright protection. Even though the music, originally composed by
the Hill sisters who were savvy enough to obtain copyright protection, just
recently went into the public domain, the words are still protected since the
copyright was assigned to a publishing company.
Which leads me to my point – copyrights are transferable by written
agreement.
These days
it is possible to claim copyrights in a work simply by putting the author’s
name and the date on the (ideally) first publication or public
display/performance of the work. Unlike
the old days, it is not necessary to register the copyright with the Library of
Congress. But registration brings
additional rights, and makes the copyrights more easily enforceable. Hence the double-edged sword – be careful
where you garner your ideas and your material – there are only limited
circumstances that allow you to use copyrighted material without permission of
the author, like for educational purposes, news, or parody. You cannot use any copyrighted material for
your own economic benefit. The simple
rule: Always make sure your work reflects your own creative intellectual
effort.
it is possible to claim copyrights in a work simply by putting the author’s
name and the date on the (ideally) first publication or public
display/performance of the work. Unlike
the old days, it is not necessary to register the copyright with the Library of
Congress. But registration brings
additional rights, and makes the copyrights more easily enforceable. Hence the double-edged sword – be careful
where you garner your ideas and your material – there are only limited
circumstances that allow you to use copyrighted material without permission of
the author, like for educational purposes, news, or parody. You cannot use any copyrighted material for
your own economic benefit. The simple
rule: Always make sure your work reflects your own creative intellectual
effort.
Any questions? Gail has invited me to stay tuned to help you
process this information. And you can
always reach me through the website for my Enjella™ children’s book series – www.enjella.com, or jane@enjella.com.
process this information. And you can
always reach me through the website for my Enjella™ children’s book series – www.enjella.com, or jane@enjella.com.