It's Your Copy, Right? Understanding the Legal Protections for Your Creative Genius
| Jurisdiction | United States,Federal |
| Citation | Vol. 27 No. 6 Pg. 0016 |
| Pages | 0016 |
| Publication year | 2022 |
GBJ I The Legal
It's Your Copy, Right?
Understanding the Legal Protections for Your Creative Genius
This article highlights the legal protections given to authors and other creators of original works through federal copyright laws. It outlines the basic rights protected and how those rights are secured. It also details the various limitations and remedies associated with any infringing uses of those protections.
BY DERRICK ALEXANDER POPE
Let us dare to read, think, speak and write.[1] "?John Adams
Writers. Inventors. Musicians. Filmmakers. Software developers. Photographers. Even architects. All of these, and many others, have protectable ownership rights in their works of creation. These rights are enshrined in the U.S. Constitution and solidified in federal copyright laws.[2] From the very beginning, the laws of the nation have safeguarded the proprietary interest in the fruits of human creativity and imagination and furthered their societal utility. Lawyers, perhaps more than any other segment of society, have a special relationship to and particular appreciation for both.
We enter the domain of our service offerings through the creative process of writing. Long before the suasion of a jury with spell-binding oration, we capture the attention of the court with a well-crafted, written petition. A reasoned study, prospectus or memorandum of understanding precedes the riveting presentation to a meeting of the board of directors. Similarly, when confronted with a new and thorny
problem of human nature crying out for some relief, we unfailingly seek the wisdom of past ages in the inspired writings left for our discovery.
Indeed, we write for our vocation, but we write also for invocation. More than a few juris doctors unleash their inner scribe putting pen to paper (or finger to keyboard) to crank out a screenplay, novel or an article for their favorite bar journal. Others create new musical treasures inspired by a Prince-esque "G-flat major with an E in the bass;"?[3] produce an original song driven by a Garibaldi drum beat underneath a Santana/Clapton modeled guitar riff; or sketch out a symphonic poem for a chamber group with a pizzicato introduction. Or we may merely provide the advice and counsel to those who do.
This article highlights the legal copyright protections given to authors and other creators of original works. It outlines the basic rights protected by federal law and how those rights are secured. In addition, the article details the various limitations of those rights and explains the remedies stemming from infringing uses. It accentuates the broader parameters of copyright law, and given the lawyer's special bond with the written and spoken word, examples used here to illustrate its inner workings will mostly emphasize works of authorship. Along the way, a little literary levity will be used to showcase a touch of creativity that is a hallmark requirement to attain copyright status. With that in mind, let us begin ...
... But First, a Word From Our (Historical) Sponsor
Broadly speaking, copyright is the "set of laws and practices restricting the right to reproduce or perform individual creations."?[4] Along with patents, trademarks and trade secrets, copyright makes up the four basic types of intellectual property.[5] Ownership rights in original created works are found in the U.S. Constitution. Article I establishes Congress' power "[t]o 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."?[6] This protection and its purpose made its way into the national charter in the summer of 1787.
Twelve states sent 55 delegates to Philadelphia for "the sole and express purpose of revising the Articles of Confederation."?[7] But the work they conducted from May to September produced instead a constitution, a new framework of governance for a nation not yet a dozen years old.[8]
The delegates had been at the matter for 96 days when James Madison"?af-fectionately introduced to us by history as "the Father of the Constitution"?[9]"? and Charles Pinckney submitted to the delegates complimentary proposals to protect copyrights.[10] So acquainted were they all with the benefits of copyright, owing to the respective treatments of their state constitutions, the measure was unanimously adopted.[11] Indeed, the thought that copyright was property worthy of constitutional mention was long recognized.[12]
No doubt, lawyers were instrumental in shepherding the convention delegates to include the protection in the burgeoning constitution. Of the 55 delegates, 31 were lawyers.[13] Legal treatises and other commentaries were in short supply then and lawyers depended mainly on the few essential textbooks at their disposal. They knew intuitively the full value of having needed books available. Hence, "the lawyer's appreciation for literature must have permeated the Convention and when the chance came ... to secure to authors their property rights, the framers eagerly jumped on this opportunity."?[14] Madison urged its constitutional propriety during the ratification process.[15]
The first Congress, convening on March 4, 1789, wasted little time to enact the nation's germinal copyright law. Books and maps were the focus of the Copyright Act of 1790, whose formal name was "An Act for the encouragement of learning, by securing the copies of maps, Charts, And books, to the authors and proprietors of such copies, during the times therein mentioned."?[16] Over time, however, the constitutional term "writings"? was expanded to include other original works of authorship.[17]
Writers and inventors were granted the right to reprint, publish and sale their works for an exclusive term of 14 years, plus an additional 14 if the author was still living. In addition, as a remedy for "infraction of copyright"? the law exacted a fine of "fifty cents for every sheet which shall be found"? in possession of the offender. One-half of the damages went to the author and the other moiety to the United States.[18] Two weeks after the law's passage, the first copyright was issued when John Berry registered The Philadelphia Spelling Bee in the District Court of Philadelphia.[19] The Copyright Act of 1790 was the basis for the major changes in the years to come.[20]
Act 2, Scene 1"?What Can Be Copyrighted and How Is It Obtained
The taproot of the copyright concept is the eventual collective benefit resulting from the created ideas of an individu-al.[21] It is "intended to increase and not to impede the harvest of knowledge ... the scheme established by the Copyright Act for fostering the original works ... provide the seed and substance for this harvest."?[22]It all begins with the protection of the first works.
At present, copyright protections subsist in "original works of authorship fixed in any tangible medium of expression, now known or later, from which they can be perceived, reproduced, or communicated."?[23] A work is deemed to be original if it satisfies the test of independent creation and sufficient creativity.[24]Notably, copyright protection extends to eight basic types of original works.[25] Of these, literary works, musical works, motion pictures and audiovisual works, and sound recordings are the most familiar.
Only the expressions of ideas can be copyrighted, not mere ideas themselves.[26]For instance, three different people at three different times can have the same thought to generate something inspired by the biblical passage, "[h]e that troubleth his own house shall inherit the wind"?[27] and none would be able to obtain copyright for it. To the contrary, a play,[28] a film[29] and a book[30] each becomes eligible for copy-
right protection as each has fixed the same idea in a tangible medium of expression.[31]
No express requirement for notice and registration exists under current law, although earlier statutes did impose such a prerequisite.[32] Prior to the adoption of the Copyright Act of 1976, a work could enjoy copyright protection only if it included a copyright notice, and was either published or registered in the copyright office. Notice was achieved by placing the word "Copyright"? or its abbreviation, "Copr.,"? the year of first publication, and the name of the copyright owner in a prominent location on the published work and notice.
After 1976, notice and registration were removed as a requirement as copyright became automatic once the work was fixed in a tangible medium, even if it remained unpublished or undistributed. When used, however, its form remains substantially the same.[33] In books, notice is customarily placed on the title page, tracking the familiar phrasing:[34]
Thy Will Be Done: An African American Guide to Estate Planning. Copyright ? 2013 by Derrick Alexander Pope.
There remains considerable practical benefit to providing notice and obtaining registration, despite the absence of a formal requirement. Notice, in effect, is a "[n]o trespassing sign"?notice to the world that you claim ownership."?[35] Its use bars others from feigning ignorance of ownership in an infringement action. In addition, a copyright holder forfeits the right to statutory damages when failing to register the work. To that end, the practical and legal consequences of notice and registration outweigh reliance on automatic copyright.
Prior to the adoption of the Copyright Act of 1976, a work could enjoy copyright protection only if it included a copyright notice, and was either published or registered in the copyright office. ... After 1976, notice and registration were removed as a requirement as copyright became automatic once the work was fixed in a tangible medium, even if it...
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