Copyright can be very complicated. The following primer is meant to introduce you to the basics of copyright law. It is in no way complete or the full picture. Copyright law is very complicated, and the facts of any one situation dramatically change the potential legal result. This primer is meant to give an overview and provide context. Please consult with an attorney for more specialized information and personal guidance and advice.
Typical Types of Copyright Problems
- Someone uses your photograph online and you are not happy about it.
- You are a business interested in using images for a website and brochure and are not sure what is “legal.”
- You received a “take down” notice from a website and you are not sure what to do.
- You want to protect your new songs you wrote, and are not sure where to start.
- You are a scholar, artist, filmmaker, or hobbyist, and you want to use some images you find online or in an archive.
- You have inherited your aunt’s collection of art work from the 1940s and are not sure what to do with it.
- You want to self-publish a novel, but you want to protect your work.
- You found a really cool book of old poetry, and you would like to publish it and sell it at Amazon.
- You are in a band, and want to use musical compositions you found at the Jazz archive. You want to update them and make them your own.
- You are a library and want to digitize your collection of postcards, but you are not sure you legally can.
- You found a really cool film clip at Internet Archive, but you are not sure what you can do with it.
- You are a student making a film for school, and are afraid of “getting in trouble” if you do something wrong with copyright.
- Your publisher requires you to get copyright permission or prove the images are in the public domain.
- You are just curious.
What is Copyright?
Copyright law is a federal law that protects all kinds of intellectual, creative works — songs, software, art, music, books, architecture, films, poetry. Each country has its own copyright laws. You have to know the law of the particular country in which you want to protect or use the work.
Copyright protects works for a “limited time.” This phrase is found in the U.S. Constitution. A creator (called the “author”) has an idea for a painting. At the idea stage nothing is protected. Then she begins to paint. From the moment of creation, the work is protected by federal copyright law.
With copyright the author gets certain exclusive rights: the right to make copies of the work, make new versions (derivative works), distribute copies, perform the work publicly, and display the work. These exclusive rights last for the entire term of protection.
During the term of protection, there also are some exceptions that allow other people to use the author’s work — fair use, classroom exemptions, library exceptions. Initially you might think that this doesn’t seem right. Shouldn’t the author control what happens to the work? A couple of examples help to demonstrate why copyright law needs a mechanism to allow for some uses, even without permission from the copyright holder. Let’s take the example of a book. Maybe a newspaper wants to publish a less-than-complimentary review of the book. The author would never give the newspaper permission to print a bad review that takes quotes from the book. Another example is when stores selling TVs broadcast tv shows. We think it is ok for them to demonstrate what the TV does, without asking permission from the broadcaster to use the program. [Wrap up sentence here that gives a suggestion of what’s being considered with these exceptions but also notes that the individual exceptions using a weighing of factors test and can be complicated and often less than assured.]
Once the “limited time” is over, the work comes into the public domain. The exclusive right of the author no longer exists, and now everyone (in that particular country) can use the work without restrictions. Anyone can make copies, make new versions, use the work as inspiration for something else, and distribute the works that come from the copies, new versions, and new works.
Resource: Copyright Basics, Circular 1 at the U.S. Copyright Office.
How is this different from patents and trademarks?
Patents focus on inventions — a sewing machine, a vaccine, the hardware in a computer.
Trademarks focus on the identifying features of a brand— the logo, the company name, the way something is packaged (trade dress).
So, for example, the software for an iPhone is protected by copyright, the logo is protected by trademark, and the mechanics of the phone by patents.
This primer focuses on copyrights and copyright law. A work can have a number of means of protection. Others include right of publicity, unfair competition, trade secrets, and misappropriation.
What gets protection? What does protection mean?
Copyright law protects your expression. You write a poem about ponytail holders. To gain protection, you have to “fix” it, meaning record it or write it down. That is the first requirement in the U.S. (Fixation is not always a requirement around the world).
To gain protection, it also has to be creative. This means that it has to be more than “A, B, C,” or “1, 2, 3.” The law says that a work must have a “modicum” of creativity. It must have just enough so that we can differentiate your ponytail poem from another’s poem. But protection doesn’t depend on quality. It doesn’t have to be a good poem about ponytail holders. Even the worst ponytail holder poem receives protection if it meets the requirements.
How long does it last?
Copyright law lasts from the moment of creation to a set period of time— in the U.S. it usually is 70 years from the author’s death or 95 years from publication. But that is not always how long it has lasted in the US, and the terms are different for each country in the world.
So, why does that matter? When the work is under copyright, there is a property right—a legal right to exclude. Once the term is over, anyone can use it. Think of it as a private house versus a public park. The question is when does it turn into a park?
Once the work is more of a “park,” in the public domain, anyone can do pretty much anything, except claim it as their own. You can make your own version, make a movie about it, put it on t-shirts, sell copies.
So, figuring out the basic question: copyright or public domain — is pretty key. But it turns out that there are a lot of factors — both in the US and around the world that make figuring out that boundary between copyright and public domain really really hard.
After a decade of research (yes, a decade), nearly 10,000 student research hours, and lots of hard work, we have created a tool to determine how long copyright lasts. We call it the Durationator.
What is the Durationator?
The Durationator is a software tool developed to help figure out the copyright status of a work— when it is in the public domain and when it is still covered by copyright. It is a super complicated system that makes it super easy for anyone to figure out the copyright status of the work.
What do you need?
- A couple of pieces of data about the work you are interested in matching. (The publication date, the publication country, sometimes the author’s death, etc.)
- Which country you want to use the work or know the copyright status of the work.
That’s it. Then, it spits out a report giving basic information, calculations, and super-lawyerly information about how the software got to the basic information. The idea is you can take it to an attorney for advice. Instead of taking many, many hours and costing $1000s to figure out the answer, it should take an attorney just moments, saving everyone time, money, and a huge hassle. Then, you can decide the next steps — if it is under copyright, what to do next. If it is in the public domain, all the exciting possibilities. If you are a copyright holder, and you are planning to enforce your copyright, proving that it is still under copyright is one of the key first steps.
For more information, visit www.durationator.com. Limited Times can help you figure out what you need next.
Why do you need an attorney with a Durationator product?
The Durationator does not provide legal advice. It is not an attorney— because software can’t be licensed, only people can.
What the Durationator does is matches the laws to the data inputted by the user, and then spits out a bunch of information. That’s where the attorney comes in. S/he will help understand what the report means. Some parts are easy to understand. (e.g. Date the work comes into the public domain). But the why is not always comprehensible—because the law is a bit messy.
That’s why we shared the Expert List with Legal.io. We wanted a place where people could connect to the smartest copyright people about their issues, and also to review and advise on the results of the Durationator Reports.
What is the public domain?
Copyright lasts for a “limited time,” according to the U.S. Constitution, and also to laws around the world. Once that term has expired, the work comes into the public domain. When a work is in the public domain it is free to use by anyone without restrictions.
Romeo and Juliet by William Shakespeare. This is old, and not protected by copyright. Anyone can perform the play, make their own versions, publish versions, and make new works based on Romeo and Juliet.
Making New Versions of Public Domain Works
If you go to the bookstore, you find many versions of Romeo and Juliet published by different publishers. Each one has added materials to make theirs unique. The text by Shakespeare is not protected by copyright, but the new materials that are added are.
And we have many, many versions of Romeo and Juliet — West Side Story, Gnomeo and Juliet, and even Warm Bodies — are all versions of the tragic love story. Each work carries its own term of copyright. The underlying work—Shakespeare’s play — is still in the public domain.
Proving that a work is in the public domain is not always easy. The Durationator can help with documentation and calculations. Also, the term of copyright can be different in each country—and so the Durationator can help determine the status—when a work comes into the public domain in each country that the work might be used.
Finally, in some countries, the government requires payment for using works in the public domain. This is not common, but it does occur. It is not true in the United States.
Here are some resources about the public domain:
When do I need to know the laws of other countries?
Copyright law is based on the jurisdiction where the potential infringement may occur. What does this mean? If you make a copy of a poem and put it on a t-shirt in the US, US law applies. If you do the same activity in Peru, Peruvian law applies. So, that’s the quick and simple answer.
The Internet has complicated things. You post that same poem online. Now, everyone in the world can access it. Does this mean that you have potentially infringed all over the world? Some think so. So, what do you do?
Enforcement. Finally, to enforce a copyright, one must first prove there is a valid copyright. Part of that is proving the work is still protected by copyright. This is true around the world.
There are a number of options.
Project Gutenberg approach. This is a group that has been digitizing public domain books for years. Their approach is that they look to the law of the country they are in — Project Gutenburg, US, for example, and anyone coming to that work runs the risk of infringing in their own country. So, for example, Australia has a term of life plus 50, and so Gone with the Wind came into the public domain in 2000, (Mitchell died in 1949). They put the full novel up online. The Mitchell estate was not happy, and complained to the US branch. But it was legal in Australia. The US group had nothing to do with it. The work was in the public domain in Australia.
Blocking. Another approach is to block countries’ where the work is still protected. We see this all the time with licensing. Nick Jr. Blocks Dora the Explorer videos emanating from the US to England, for example. So, in the case of Gone with the Wind, one could block addresses from countries where the work was still protected, or alternatively, only allow addresses from countries where the work was in the public domain.
Positive Proof. Other places require proof that the work is under copyright or in the public domain. For instance, to sell public domain works at Amazon, one needs to write a letter explaining that the work is in the public domain, and therefore the republication does not violate copyright laws, for each jurisdiction where the work is to be sold.
What’s a girl to do?
Well, that depends on what the goal is. Options include
- US only match: provides information on the copyright status of the work in the US
- Country of Origin match: where the work was first published or created. Note: this does not indicate the global term or the term in any country but the country of origin. A number of high profile groups have mistaken country of origin for a global copyright term. This is not how the law works, unfortunately.
- Specific Country match: where is the work going to be used? Match those countries.
- Regional match: Latin America, Middle East, Europe, etc.
- Language-based match (spanish-speaking countries, for instance): Think about where the work is most likely to be used/accessed based on language.
- Longest term match: determine what the longest term in the world is, and then if it has cleared that hurdle, you are good to go. Of course, it is a very long term, and likely out of copyright in most jurisdictions long before that. But it is a way to go.
- Global (every country) match. Match the work to each law of the world. Then, you know its precise status everywhere and can make decisions.
Where do I match the laws? At the Durationator! That’s what we do. You provide information about the work. The Durationator match the data to the laws. You have a lawyer review the results. It’s easy. It’s fun. It’s informative.
What is fair use?
Fair use — ah, a complicated and delightful subject. So, a work is still under copyright. You want to use the work. You ask permission of the copyright holder. But there are some cases where the law provides for uses where permission is not needed. What kind, you ask?
- Criticizing and commenting
- News reporting
- Making spontaneous copies for the classroom
These are just a handful of examples. Fair use is fun, but it is also complicated. There is a four-factor test to determine if your use meets the qualifications for fair use. And, because of the way it is structured in the U.S., there is some built in uncertainty, as it is “case-by-case.” But the good news is that lots and lots of work has been done on fair use to help people.
The U.S. Copyright Office has just come out with a Best Practices for Fair Use. There are other groups that have also produced Best Practices. And there are lots of materials that help to explain more about fair use.
Are there other special exceptions?
- For Libraries
- For Religious Organizations
- For Classrooms
… And many more. We will highlight these soon. Our experts will also indicate their specialties in these fields. These are complicated laws, but they are also very, very useful.