Chapter 23 - § 23.4 • COPYRIGHTS

• Jurisdiction: Colorado

§ 23.4 • COPYRIGHTS

Nonprofit corporations frequently produce content in the form of text and audio and visual recordings that are protected by the copyright law. Common copyright issues that arise for nonprofits include the use of independent contractors (including artists, speakers, etc.) to produce content, the need for nonprofit organizations to obtain assignments of rights from independent contractors, and fair use issues involving the use of content developed by third parties.

Copyright law embodies the group of legal principles that affect the creation, use, dissemination, and transfer of literary, musical, audiovisual, and other artistic and expressive works. Because copyright protection extends only to the expressive aspects of a work, copyright does not protect an idea, procedure, discovery, or the like that forms the basis for the work. 17 U.S.C. § 102(b). For example, a copyrighted magazine article that details a stock market investment technique may not be literally copied by a rival magazine (the expression of the idea), but the investment technique itself (the idea) may be implemented by a reader or described by a rival magazine using its own words.

§ 23.4.1—Copyrightable Subject Matter

The federal statute governing copyright states that an original work of authorship that is fixed in a tangible medium of expression may be protected by copyright. 17 U.S.C. § 102(a). Accordingly, to be copyrightable, a work must be original, a work of authorship, and fixed in a tangible medium of expression.

The amount of originality necessary to create an original work of authorship is minimal. Substantially, any nontrivial input that is the product of the author's independent effort is sufficient originality to support a copyright. However, the U.S. Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), suggests that the originality requirement is constitutional (rather than legislative) and also includes a general element of creativity. Therefore, some minimal amount of originality is required, as evidenced by the refusal of the U.S. Copyright Office to register works such as titles, slogans, and short phrases as lacking sufficient originality. 37 C.F.R. § 202.1.

A work of authorship is not directly defined by the copyright statutes. However, by way of example, 17 U.S.C. § 102(a) lists several broad categories as examples of works of authorship. These include:

• Literary works;
• Musical works, including any accompanying words;
• Dramatic works, including any accompanying music;
• Pantomimes and choreographic works;
• Pictorial, graphic, and sculptural works;
• Motion pictures and other audiovisual works; and
• Sound recordings.

For a work to be fixed in a tangible medium of expression, the work must be embodied in some medium, now known or later developed, from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. § 102(a). For example, works created or reproduced on paper, canvas, audio and video cassettes, vinyl, CDs, DVDs, digital media, blocks of wood, slabs of clay, and chunks of stone are all fixed in a tangible medium of expression.

§ 23.4.2—Copyright Ownership

The copyright in an original work of authorship is property that is separate and distinct from the physical property embodying the original work of authorship. The ownership or transfer of the physical property that embodies a copyrighted work, such as this reference material, does not in and of itself include ownership or conveyance of the copyright in that work. Likewise, the ownership or transfer of the copyright in a particular work does not inherently include ownership or conveyance of any right to any physical property embodying that copyrighted work. 17 U.S.C. § 202.

Copyright is an inherent incident of authorship and exists from the time any original work of authorship is created and fixed in a tangible medium of expression. 17 U.S.C. § 102(a). No other steps need be taken. A copyright is the property of the author(s) who created the work and those deriving rights through the author(s). A work created by a single author, on his or her own behalf, is owned by the author until dedicated to the public or otherwise transferred, unless the work is one "made for hire." Ownership of a work created by more than one author and the ownership of a "work for hire" is more complicated.

§ 23.4.3—Joint Works

A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole at the time their respective contributions are made. 17 U.S.C. § 101 (joint work). The essence of joint authorship is a joint laboring in furtherance of a preconceived common design. However, this does not mean that the joint authors must work in physical proximity or in concert, or that their respective contributions be...