Points of Law

How Does Copyright Law Work

Douglas Robbins
May 13, 2024
Numerous books wide open

Elements of Copyright

Copyright exists in any (1) “original works of authorship” (2) “fixed in any tangible medium” (3) which “can be perceived, reproduced, or otherwise communicated.”  Copyright protects “literary works” like novels, poetry, or short stories, “musical works,” like record albums of rock music, tapes of classical music, CDs of movie soundtracks, or mp3s of hip hop recordings, “dramatic works,” like plays and musicals, “pictorial, graphic, and sculptural works” like fine oil paintings, bronze cast sculptures, comic books, printed posters, or photographs, “motion pictures” like those on film, digital video, or DVD, and “architectural works” such as the blueprints to San Francisco’s Transamerica Pyramid.

In addition, to be “copyrightable” (an item that can be protected under copyright law) the work must be original—that is, independently created by the author.  An author’s creation can be somewhat similar to existing works, or even lacking in quality, ingenuity, or aesthetic merit, as long as the author toils, without copying from someone else, to create something different or new.

Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. The work need not exhibit much creativity:  “To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.”  For example, the Supreme Court found that the alphabetical listing of names telephone numbers and addresses as located in a telephone book’s white pages did not exhibit sufficient creativity to be copyrightable.  And since the white pages are not copyrightable, you or anyone else can copy them, without penalty, under the Copyright Act.

Copyright Rights

The Copyright Act gives to the copyright holder certain special rights over her work that no one else in the world has.  Conversely, anyone other than the copyright holder who tries to use these rights without permission is infringing the copyright.  Those rights are:  (1) the right to make a copy, (2) the right to make a derivative work, (3) the right to distribute the work to the public, and (4) the right to put on a public performance of the work. Only the copyright holder can do these things.  If other people do these things without the copyright holder’s permission, they commit copyright infringement—believe it or not.

Make a Copy.  The right to make a copy is as mundane as taking the work to a photocopy shop and running off a copy.  While running off a copy for your own personal use does not violate copyright, something as simple as copying a song from iTunes to give to your girlfriend, even if you charge no money, breaks the law.  As a practical matter it is difficult, if not impossible, for the copyright holder to keep track of every person who gives a mix-CD to their girlfriend, and the damages at stake may be minimal, but this is, technically, a violation of copyright law.

Derivative Work.  A derivative work is a work based on a previous work.  Sequels are a good example.  The James Bond franchise is a jealous guardian of its rights.  No one may make a 007 movie without the rights-holder’s permission.  Even making a commercial with similar James Bond-like elements—similar characters, similar themes, similar plots, similar mood, etc.—may be considered derivative.

Likewise, George Lucas controls the exclusive right to make or license Star Wars sequels, Star Wars novels, Star Wars lunchboxes, and Star Wars books on tape.  And if you write a movie treatment for the next Rocky movie without Sylvester Stallone’s permission, that treatment can be freely copied by the Rocky franchise.  Why?  Because the treatment is a derivative work and, as such, is not only uncopyrightable, but is actually copyright infringement.

Distribution.  Only the copyright holder can distribute the work to the public.  This means the right to sell, disseminate, give away, or otherwise make the work available to others.

Public Performance.  Only the copyright holder has the right to publically perform the work.  Public performances not only include performances of plays, but also the public playing of music (either live or from a music CD), public viewing of a DVD movie, or the public reading of a book.  Playing these works at private parties to which the public is not invited and for which admission is not charged is permitted.  But if your fraternity holds a party, open to the public, and plays dance music from CDs without a license, this is a technical violation of the copyright act.  Again, as a practical matter, it is difficult to enforce this sort of prohibition, and few rights-holders have any interest in doing so—but there are always rare exceptions.

Length of the Copyright

How long is copyright protection? Copyright rights run for the life of the author plus 70 more years.  If a corporation is the author then the copyright lasts for 95 years from the day the work was published or 120 years from the day it was created, whichever time period lapses first.  This is really an extraordinary length of time.  It means that any work created in your lifetime, will, in all likelihood, will be protected by copyright, and unavailable to you or anyone else (except the author), for use or copying, until after you are dead and gone.  This regime seems to conflict with the ultimate goal of copyright which is to encourage, not discourage, creativity—but there you have it.

When a work becomes available for use without permission from a copyright owner, it is said to be “in the public domain.”  Most works enter the public domain because their copyrights have expired.

Remedies for Infringement

If an infringer violates the rights of a copyright owner, the owner’s remedies include: (1) injunctions to prevent further violations or destruction of any and all media containing the infringing work, (2) actual damages compensating the rights holder for the loss, (3) an award of statutory damages, “in a sum of not less than $750 or more than $30,000 as the court considers just,” (4) up to $150,000 in statutory damages in cases which result from a rights holder having to prove and a court having to adjudicate that the infringement was willful, (5) “full costs,” (6) and, at the court’s discretion, an award of “reasonable attorney fees to the prevailing party.”

An infringer is also subject to criminal prosecution by the United States Attorney for willful infringement.


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