Chapter Overview

Roots of the Law:

American copyright law derives from rules and regulations established by the British government in the 16th and 17th centuries. The contemporary basis for the protection of intangible property is contained in the U.S. Constitution, and since 1789 the nation has had numerous federal copyright statutes. The current law, adopted in 1976, gives to the author or owner of a work the sole and exclusive right to reproduce the copyrighted work in any form for any reason. The statute protects all original works of authorship fixed in any tangible medium. Included are such creations as literary works, newspaper stories, magazine articles, television programs, films and even advertisements. Trivial items, utilitarian goods, ideas, and methods or systems cannot be copyrighted.

News events cannot be copyrighted, but stories or broadcasts that endeavor to describe or explain these events can be copyrighted. What is being protected is the author's style or manner of presentation of the news. Similarly, facts cannot be copyrighted, but works that relate these facts can be protected as expression. While news and facts cannot be copyrighted, anyone who attempts to present news or facts gathered by someone else as his or her own work may be guilty of breaking other laws, such as misappropriation, or unfair competition. In most cases copyrighted works are protected for the life of the author or creator plus 70 years. Different rules apply for works created before 1978 and for works made for hire.

Fair Use:

While the copyright statute gives the author or owner of a copyrighted work an exclusive monopoly over the use of that work, the law recognizes that in some instances other persons ought to be able to copy portions of a protected work. No liability will attach to such copying if the use is what the law calls a "fair use."

A court will consider four factors when determining whether a specific use is fair use:

1. What is the purpose of the use? Why was the material copied? Was it a commercial use or for nonprofit educational purpose? Was the use intended to further the public interest in some way?
2. What is the nature of the copyrighted work? Is it a consumable item such as a workbook, or is it a work more likely to be borrowed from, such as a newspaper or magazine article? Is the copyrighted work in print and available for sale? Has the work been previously published or is it unpublished?
3. How much of the copyrighted work was used in relation to the entire copyrighted work? Was it a small amount of a large work? Or was it a large portion of a small work?
4. What impact does the use have on the potential market or value of the copyrighted work? Has the use of the material diminished the chances for sale of the original work? Or is the use unrelated to the value or sale of the copyrighted material?

Although a court considers each of these items closely, most courts tend to give extra weight to item 4. In a close ruling the impact on the market or value of the copyrighted work often becomes the most crucial question.

Copyright Protection and Infringement:

To protect the copyright of a work, the author or owner should give proper notice and register the work with the government. A proper copyright notice looks like this:

Copyright© 2003 by Jane Adams (use the letter  P for phonorecords)

Notice must be placed where it can be visually perceived. To gain the full benefits of the law, a work must be registered with the Copyright Office in the Library of Congress as well. The proper registration form along with $30 and two complete copies of the work must be sent to the Register of Copyrights.

When a plaintiff sues for infringement of copyright, the court will consider three important criteria. First, is the plaintiff's work original? If the plaintiff has attempted to copyright material that legitimately belongs in the public domain, the plaintiff cannot sue for infringement of copyright. Second, did the defendant have access to the plaintiff's work? There must be some evidence that the defendant viewed or heard the copyrighted work before the alleged infringement took place. Finally, is there evidence that the defendant actually copied the plaintiff's work? If no such evidence exists, are the two works substantially similar? In examining this last issue, the court seeks to determine whether the ideas in the two works are similar. If the general idea of the two works is similar, is the expression of these ideas similar as well? Problems of copyright infringement via the Internet are just beginning to be litigated, with both traditional copyright law and new statutes being applied by the courts.