Areas of Practice - Copyright

Copyright

Copyright is a complex, intricate, and long historied field of legal endeavors to provide some tenable protection to encourage the creative spark in citizens. From early but vague recognition in the U.S. constitution our legal concept of copyright has grown in fits and starts to embody a significantly important area of law that permeates nearly every element of our modern society to some degree. A brief web page overview can do scant justice to the breadth of the subject matter. What will be attempted here is a quick discussion of what the term "copyrightable" might entail and a sprinkling of quirky examples of the twisty nature of the beast.

What can be protected by copyright?

A useful definition of copyrightable material is "an original expression of ideas fixed in a tangible medium." The interpretation of any definition, though, relies on how each element of the definition have been interpreted and given meaning. Treatises have been written on how to interpret a definition of Copyright so an in depth analysis will not be attempted here. I will leave it with only a mention of one resounding tenet from all definitions of Copyright: "Ideas are NOT copyrightable."

Federal Copyright

By Federal statute copyright has been determined to be available to an enumerated list of types of works. These are:

• literary works
• musical works
• dramatic works
• pantomimes
• pictorial, graphic and sculptural works
• motion pictures and audio visual works
• sound recordings
• architectural works

Nearly all expressions of creative individuals and groups can be fit into these stipulated types of works.

The protections afforded the copyright holder consist of up to six different rights. None of the types of covered works get all six, but, each receives some combination of the following rights:

• to reproduce the work
• to authorize and create derivative works
• to distribute copies
• to perform the work publicly
• to display the work publicly
• to allow digital transmission of sound recordings

Practicalities

When you get it?

Although the "when" has changed over the course of the history of Copyright, for any newly created works, copyright attaches to applicable works the moment they are fixed in the tangible medium. There is no longer a requirement for an affixation of the copyright symbol or registry with the Copyright Office to establish your copyright. However-

How do you protect it?

In order for you to be able to sue for infringement of copyrights you must have registered them with the U.S. Copyright Office if the holder is a U.S. citizen or resident. Statutory damages and attorneys' fees are only available for infringement occurring after registration. So, in practice it is good form to register copyrights as soon as practical, just not critical in most instances.

There are tons of discussions that could take off from this point discussing what types of damages can be awarded, what kinds of injunctions might be available and just when and to what extent the statutory damages could come into play. To avoid too much confusion those discussions will be left for the discussion of specific cases and controversies.

Example Issues:

We will visit a couple of scenarios that point out areas of copyright that might not be immediately evident but could easily crop up in normal dealings with creative media.

Works Made For Hire vs. Independent Contractors

Initially, the author of a protected work is awarded the rights of copyright to that work. So it is a big deal to determine who would be classed the author of a particular work. In the long history of copyright legislation when dealing with work created by someone being paid by another, the determination of who would be deemed the author of the resulting work has changed. There are three concepts involved in these discussions. There is the employer or the one who is paying for the work to be done. There is the employee who creates works that the employer is deemed the author of when those works are done in the course of the employee's employment. Then there is the independent contractor who creates work as directed, but not controlled, by the employer. In this last instance the independent contractor would be deemed the author of the creative work and own the copyright to the work, even if she would not own the physical work itself. Determining whether a worker is an employee or independent contractor is a complicated issue potentially involving case precedent and Federal tax rules and is left out of this discussion for brevity.

Currently in the copyright statute there is a limited class of described works where an independent contractor can be determined to be creating a work made for hire which vests the employer with the initial copyrights in the work. But this classification has been considerably narrowed within the legislation to apply to a very small class of works and there are rigid formalities that must be followed in order for work to be legitimately determined as a work made for hire.

Unless you are making maps, charts or exam results, a work made for hire issue will only be applicable to a creation made part of an audio/visual work, such as a film production. A carefully crafted contract between employer and independent contractor for products ending up in a movie would originate the copyright in the control of the movie producer. But, it only applies to the creation of works that would be classed as audio visual works, not the associated media created in support of such works. Even if the contracts state differently, works created that do not qualify as audio visual works (e.g. movie poster artwork,) cannot be made works made for hire and therefore must transfer control of the copyrights, if at all, through a contractual assignment or other legal transfer.

This little recognized hitch in the usual business practices and assumptions just might end up being costly to those producers making those assumptions or following "how everybody else does it."

Joint authorship

It is rare that a creative work is made in isolation and when there is collaboration there is the question of whether there has been enough contribution of original material by all parties to raise the specter of "Joint Authorship."

Joint Authorship is when there is more than one author to the work, where more than one creative contribution is intended and necessary to bring the work to its completion. Determining joint authorship issues are critical because they determine who controls the copyrights to the finished product. Typical scenarios where these questions emerge are situations like when a book or journal author takes contributions from assistants, writing parts of the finished product. If enough substance comes from a assistant, the potential for claiming authorship of that part, and therefore ownership of the related copyrights, is a legitimate concern. When dealing with joint authorship issues a major guidepost is the contractual intents of the parties as to how they conceived of the collaborations.

When the authorship of a work can be dissected into constituent parts, each author could be determined as to what parts they have control. But there are types of works where this division of contribution is not fathomable. The most common of these indivisible joint authorship issues comes in the musical composition genre. For modern music there is usually a lyricist and a composer, each consciously contributing to the finished product, a musical composition. Without contractual stipulation otherwise, if the resultant work is to be reprinted in a book of song lyrics, both authors would share in any copyrighted profits from said use, even though the composer's part is not being duplicated. The determination of the type of copyrightable work as a musical composition does not facilitate a separation between lyrics and music where copyright is concerned. Because the two were brought together intentionally to form the original work, they share equally in any copyright decisions and profits, unless a prior contract between the authors stipulated otherwise.

As these two brief examples of the complexities of common areas of copyright law demonstrate, even in familiar territories of discussion, the study of copyright law can reveal pitfalls and potentials that can be hazardous to smooth commercial exploitation.

My Interest

Copyright concerns while working in media production were the main issues that drove me to consider going to law school for a better understanding of all involved. It's study is one of the key areas in my interest in the law and you can be assured of a long winded and hopefully interesting monologue if you but ask me a question on one of the more esoteric but highly interesting nooks of legal construct hidden within this field.