I: Introduction to Copyright
From RARIN Wiki
1. How is copyright secured? What types of materials are protected?
Copyright protection is available to original works that are fixed in a tangible medium. Under current law, copyright protection begins as soon as the work is created. It is no longer necessary to publish the work, affix a copyright notice (©), or register the work with the U.S. Copyright Office.
The U.S. Copyright Office recognizes five classes of copyrightable materials: literary works, visual arts, performing arts, sound recordings, and serials/periodicals.
- Literary works are text-based works that may be published or unpublished, with or without illustrations. This category includes databases and computer programs but does not include plays, dramas, or screenplays.
- Visual arts are the works that will be of most concern to museums. This category includes two and three dimensional forms of fine, graphic, or applied art. It also includes architecture and some “useful articles.” Utilitarian portions of useful articles may not be copyrighted, but the artistic details may.
- Performing arts are all works meant to be performed. This includes musical works such as songs or musical arrangements, dramatic works such as plays, choreographic works such as dances or pantomimes, and audio-visual works such as movies.
- Sound recordings are defined as works that result from the recording of a performance of musical, spoken, or other sounds. They do not include the sounds that accompany motion pictures or other audio-visual works, which are considered as a key part of the larger work. A copyright of a performance is not the same thing as a copyright of the work being performed. For example, a poet may copyright her original poem as well as a recording of her recitation of the poem, but these would be separate copyrights. An actor performing a soliloquy from Shakespeare could copyright a sound recording of his performance, but would have no rights to the text itself.
- Serials/periodicals are works that are composed of successive parts intended to be issued indefinitely in a specific order. Examples are newspapers, magazines, journals, and bulletins.
Although registration with the U.S. Copyright Office is not necessary, it may still be advisable. Registration places the facts of the copyright into the public record and allows the copyright holder to have a certificate of registration. Registration also gives the copyright holder several legal benefits if they wish to sue for copyright infringement. Their works may be eligible for statutory damages and attorney’s fees instead of merely actual damages. If registration occurs within five years of publication, it is considered prima facie evidence in a court of law. This refers to evidence that speaks for itself and it sufficient to satisfy the burden of proof. In order to register a work, the author must simply fill out a registration form, pay a filing fee, and deposit two copies of the work in the Library of Congress.
Copyright protection is available only to the author of an original work. When an author is being paid for his or her work, it is considered “work for hire” and the employer is considered to be the author for purposes of copyright ownership. This applies to work by an employee done in the scope of his or her employment or to works that are specially ordered or commissioned.
2. Key dates in the history of copyright development
1909 Copyright Act
Prior to 1909, copyright protection was available for a fourteen year term, which was renewable for an additional fourteen years. It applied only to a limited class of written works. The passage of the Copyright Act of 1909 doubled the terms to 28 years and greatly increased the number of works that could be copyrighted. The categories are listed in the act as:
- a. Books, including composite and cyclopedic works, directories, gazetteers, and other compilations.
- b. Periodicals, including newspapers.
- c. Lectures, sermons, addresses (prepared for oral delivery).
- d. Dramatic or dramatico-musical compositions.
- e. Musical compositions.
- f. Maps.
- g. Works of art; models or designs for works of art.
- h. Reproductions of a work of art.
- i. Drawings or plastic works of a scientific or technical character.
- j. Photographs.
- k. Prints and pictorial illustrations including prints or labels used for articles of merchandise.
- l. Motion-picture photoplays.
- m. Motions pictures other than photoplays.
- n. Sound recordings.
Under the Copyright Act of 1909, works did not have to be registered in order to be protected, but they did have to be published with a copyright notice. The notice must consist of the word “copyright,” the abbreviation “copr.”, or the symbol ©, as well as the name of the copyright owner. For works in the classes of f-k above, which includes most works of concern to museums, the notice can consist of the symbol © accompanied by the initials, monogram, mark, or symbol of the copyright owner provided that the whole name appears somewhere on the work.
Copyrighted works remained protected for 28 years from their date of original publication. They were eligible for an additional 28 year renewal term, but only if the copyright owners followed the renewal procedures exactly. They had one year before the copyright expiration date to apply for renewal. Renewals earlier than one year in advance were not allowed, and if the application was not received prior to the expiration date, then the copyright expired after the initial 28 year period.
1978 and the Copyright Act of 1976
The Copyright Act of 1976 forms the basis of the copyright law that we use today. It went into effect for works created on or after January 1, 1978. Works that were still under their first term of copyright protection on as of January 1, 1978 (i.e. works published January 1, 1950 and later), were still subject to the renewal process in their 28th year. However, the renewal term was extended to 47 years, for a total of 75 years of copyright protection. The Copyright Act of 1976 laid out the basic rights of copyright holders, defined the Fair Use doctrine, and changed the structure of the copyright protection terms.
By 1976, many new technologies had been developed that were not covered under the 1909 act, such as television and radio. The Copyright Act of 1976 included the following language to define works that could be copyrighted: “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Under the 1909 act, copyright protection did not begin until a work was published with a copyright notice affixed. While the 1976 act still required a copyright notice for published works, it also contained provisions for unpublished works. It allowed copyright protection to begin as soon as a work was fixed in a tangible medium.
The Copyright Act of 1976 defined copyright as a bundle of rights that can be licensed individually. A full copyright consists of:
- 1. the right of reproduction (the right to make copies of the work);
- 2. the right of adaptation (the right to produce derivative works based on the work itself);
- 3. the right of distribution (the right to distribute copies of the work for sale, rental, loan, and so on);
- 4. the right of performance (the right to perform the work publicly);
- 5. the right of display (the right to display the work publicly).
The holder of the copyright has the right to do all of these things, as well as the right to authorize others to do them. However, a license to make copies of a work does not imply the right to sell the copies or to make derivative works.
The Copyright Act of 1976 also codified Fair Use. This allows a copyrighted work to be used for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The Act gives four factors to consider when determining whether a use is fair or not:
- 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- 2. the nature of the copyrighted work;
- 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 4. the effect of the use upon the potential market for or value of the copyrighted work.
The Copyright Act of 1976 extended the terms of copyright protection and did away with the renewal system (for works published after January 1, 1978). Under the new law, copyright lasted for the life of the creator plus fifty years.
1989 and optional copyright notice
On March 1, 1989, the United States became a party to the Berne Convention. The Berne Convention required all participating countries to apply the same copyright law that they use for their own works to works from other participating countries. This means that in order to publish or perform a foreign work in the United States without obtaining permission from a copyright holder, that work must be in the public domain under the standards of U.S. copyright law.
The Berne Convention required certain basic standards in the copyright law of its signatories. As a result, the United States had to drop the notice requirement from its copyright law. Works published without any copyright notice were now automatically protected instead of entering the public domain. There were still benefits to the copyright notice, however, as its presence prevented others from using a defense of “innocent infringement.”
1990 VARA
The passage of the Visual Artists Rights Act in 1990 added moral rights to the spectrum of U.S. copyright law. VARA applies only to “works of visual art,” which are defined to include paintings, drawings, prints, sculptures, and photographs of which only a single copy exists, or that exist in a limited edition of 200 or less, consecutively numbered by the artist and bearing the artist’s identifying mark. The act specifically excludes many types of materials that are otherwise copyrightable (http://www.law.uconn.edu/homes/swilf/ip/statutes/vara.htm) as well as works made for hire.
The rights guaranteed by VARA include the rights of attribution and integrity. Specifically, artists have the right to claim authorship of a work of art and to prevent their names being associated with any work they did not create. If a work of art has become distorted, mutilated, or otherwise modified, the artist has the right to prevent his or her name being used as the author of the work. VARA also gives artists the right to prevent any distortion, mutilation, or modification of their work, and to prevent any destruction of “a work of recognized stature,” whether intentional or by gross negligence. (See Malaro, p. 185-190 for a full explanation.) A separate section of VARA deals with the destruction of works of art that are incorporated into a building.
VARA rights last only for the life of the artist. The rights may not be transferred, but can be waived.
1992 automatic term extension
The Copyright Renewal Act of 1992 provided for automatic copyright renewal of any work that was in its first term of copyright as of 1992. Thus, works published between January 1, 1964 and December 31, 1977 had their terms automatically extended an additional 47 years, for a total 75 years of copyright protection. Works published after December 31, 1977 fell under the Copyright Act of 1976. Works published before 1964 had already passed their 28th year, and would have entered the public domain if their copyrights were not renewed.
1994 international issues, Berne Convention, URAA
When the United States became party to the Berne Convention in 1989, it ignored the retroactivity of the treaty and applied the rules only to works published after March 1, 1989. In fact, the treaty specifically states that any work still under protection in its country of origin falls under the purview of the treaty. The United States was severely criticized for ignoring this part of the treaty, and eventually passed the Uruguay Round Agreements Act (URAA) in December 1994. This meant that the United States had to restore copyright to many foreign works that had passed into the public domain in the United States due to their failure to comply with U.S. formalities such as registration renewal or publication with notice. Any work that was still under copyright in its home country as of January 1, 1996 was automatically restored to the same term it would have had under U.S. copyright law if it had never fallen into the public domain.
The URAA had a big impact on museums, especially those with an international focus. The rules for restored copyright are very complex and include provisions for “reliance parties,” people who were using a work in good faith before the copyright was restored and continued to do so after January 1, 1996. See A Museum Guide to Copyright and Trademark, p. 37-41 for an excellent explanation and case study of restored copyright.
1998 Term Extension Act, Digital Millennium Copyright Act
Two pieces of copyright legislation were signed into law in 1998. First was the Copyright Term Extension Act of 1998, also known as the Sonny Bono Act. This act extended copyright terms by 20 years for all works that were still under copyright in 1998. This means that all works published from January 1, 1923 to December 31, 1977 can have terms up to 95 years total if properly renewed. Copyright for works published after 1978 is the life of the creator plus 70 years.
The second piece of legislation was the Digital Millennium Copyright Act. This act implemented recent World Intellectual Property Organization copyright treaties and updated U.S. copyright law for the information age. It does not expand the rights of copyright owners, but it provides additional protection for works in a digital format by making it a crime to circumvent protections placed on copyrighted works on the Internet. These protections include passwords needed to access content or disabling the ability to right click and save an image.
Sources: http://www.cni.org/docs/infopols/US.Berne.Convention.html http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works http://en.wikibooks.org/wiki/US_Copyright_Law http://en.wikipedia.org/wiki/URAA http://law-ref.org/BERN/index.html http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act http://www.copyright.gov/legislation/dmca.pdf http://www.gseis.ucla.edu/iclp/dmca1.htm Malaro, Marie C., A Legal Primer on Managing Museum Collections 2nd edition, 1998, Washington, D.C.: Smithsonian Books. American Association of Museums, A Museum Guide to Copyright and Trademark, 1999, Washington, D.C.: American Association of Museums.
A Resource: http://en.wikibooks.org/wiki/US_Copyright_Law
10 Big Myths about Copyrights Explained: http://www.templetons.com/brad/copymyths.html
The U.S. Copyright code, in verse
These verses describe All the copyright code Of the U. S. of A. Written down as an ode
Some detail is lost As you might have expected A brief note about some Of what was rejected
For most of the things That you aren't to do There's always exceptions In one case or two
Most often a teacher Can break all these rules In order to teach in A setting like school
And also a scientist Or engineer, too, Has leeway to copy An item or two
There are other exceptions: Recording for blind ones Or making performance For blind or for veterans
But I'm not a lawyer Don't rely just on me Go find one to ask, Better yet, two or three
101
We start off defining People and media Terms you can also find On Wikipedia
102
Copyright is for writings, Music, dance, drama, Movies, buildings everywhere Even Alabama
103
Copyright applies even When you're deriving From copyrighted works And no, I ain't jiving
104
Copyright applies to works From any countries Assuming they're smart enough To sign the right treaties
104A
If copyright is restored All others must cease If the owner gives notice For twelve months, at least
105
Nothing the government Makes is copyrighted But they can buy copyrights At K-mart sales, red-lighted
106
The owner exclusively Can perform or display, Copy, derive, or market But do not dismay (see 107)
106A
Visual arts owners only Can claim attribution Or prevent any display On threat of retribution
107
Despite all of these rights All people can reproduce To report, criticize, or teach Because that is fair us
108
And libraries, too, can make Copies for archiving If the works are all public And no money deriving
109
You can always sell off What you've legally bought, honey But you can't lease or rent it If you're doing it for money
110
Teachers, priests, and vendors Can perform without charge And also for blind people Or veterans, small or large
111
Rebroadcasting without changes To hotel guests is fine If not saved, not commercialized And sent at the same time
112
You can even make copies To rebroadcast later If you then take these copies And put them through a grater
113
If your graphical work Is on something useful It's copyable; you'd better Go back to art school
114
Sound recordings, but not music Can be re-performed As long as it's attributed And not grossly malformed
115
Non-dramatic music Whatever that means Can be forcibly licensed On a per-copy scheme
116
The same situation Applies to jukeboxes Without further "withal"s "provisions" or "ad-hoc"ses
117
Copies of software Can be made as a backup Or copied to memory In prepping for setup
118
Owners of copyrights Can license them out; For non-dramatic work That's all it's about
119
You can also rebroadcast To boost your own signal But altering or storing Is a violation, willful
120
Architectural copyright Includes only the object You can photograph or draw it Or break it without respect
121
Non-dramatic writing Can be copied for the blind As a phonographic work And that's even if you mind
122
Generally speaking You can retransmit signals Altering or commercializing them Is mucho violation, willful
201
You own what you made Unless working for hire In a group, only your part But you'll be much less tired
202
Owning work doesn't mean Owning the container; And you own the container Not the work; could I be plainer?
203
If the copyright owner Should sound the deathly chime The spouse and kids gain ownership For a heck of a long time
204
Copyright ownership Is transferred in writing And not by pinkie fingers Or elephant biting
205
You can register transfers With the office of copyrighting But first come first served No pushing no fighting
301
As far as I can tell And I'm no expert yet This section talks only about What sections come next
302
A copyright lasts seventy years After you're dead Or ninety years generally If they can't find your head
303
If written before '78 But published only since Go back to the last section And try not to wince
304
If written before '78 Your copyright's expired But Sonny Bono changed that Before he retired
305
All rights to a copyright End when the year does By which we mean calendar year Eight days after Santa Claus
401
You can copyright notice But you really don't have to Put circle-C or "Copyright" The name and the year, too
402
Sound recordings use circle-P Which I never knew And frankly I must say I've never seen one, too
403
If mostly governmental No copyright is needed But a mixture may warrant one So that notice is heeded
404
One copyright notice Is sufficient for collections Each author can place one So he won't feel rejection
405
Before Berne's convention And without copyright notice Infringement was as innocent As a butterfly on a lotus
406
Similarly, before Berne, If the notice was erroneous An infringer could claim innocence Of all acts felonious
407
If you register your copyright Don't loosen your collar You're no more protected And you're out thirty dollars
408
You don't have to send The whole work in a truck Just send the first part of it With a check for thirty bucks
409
Just fill out the form Fill in all of the blanks And don't forget the money The next trip to the bank
410
For registering, you'll get A nice form in the mail A judge may take notice of it And throw someone in jail
411
You may need to register To sue for infringing Proving violation Is on what this is hinging
412
In some cases damages Can only be collected After registered copyright Has been properly inspected
501
If you violate copyright You're a copyright infringer Not a pirate, nor a robber, Nor an alcohol binger
502
Any valid courthouse Anywhere in the states Can examine the infringement And determine its fate
503
The court can decide to Impound all the copies And have them destroyed Whether tapes, books, or floppies
504
You may become liable for Both profits and damages Not more than 150K Paid in dollars, not sandwiches
505
You may also have to pay For the lawyerly costs A fee known to make tremble Even heavenly hosts
506
If you willfully copied Or sold things for moolah Or fraudulently copyrighted You're a criminal, so woo hah.
507
You can't be a criminal If five years have passed And no civil actions If three years have amassed
508
Certain types of letters Will be passed here and there One month after filing So pull up a chair
509
If they find copying hardware ("Now you're cold ... ooh, you're getting warmer!") They may take it and pay off Agent fees and informers
510
Any infringers Of the cable persuasion May lose, for thirty days Their license, on occasion
511
Governmental employees Will be dealt with as hard So has anybody checked yet On the president's Ipod?
512
ISPs, unless notified, Even if take action Are not liable if you store on them Illegal songs from Michael Jackson
513
If you charge way too much For your performance rights The public can sue and get Relief from this plight
601
You can't bring to the U.S. Any written stuff Unless published here or Canada Amazingly enough
602
The same goes for phonorecords And copies illegal So no photocopies Of Charles Shulz's beagle
603
You can apply to bring these in But they probably won't let you If you try to bring them anyway Custom agents will get you
701
The Copyright Office Is staffed by some smarties They advise and they poll And throw pretty good parties
702
They also make laws Like the ones that you're reading To change just one sentence Takes 'bout five hundred meetings
703
Any dates that are mentioned Fall on next business day I must say it's clearer When written this way
704
The stuff that you send them To register claims May get filed or made Into paper airplanes
705
They file, they stamp And they make a big list And they try to make sure That no papers get missed
706
In a strange sense of irony Befitting this bill The copyright office Can copy anything at will
707
They publish a record Of all copyrights made And they'll hand out applications And then send you away
708
They sure seem to charge you For all sorts of things After leaving the office Check your jewelry and rings
709
If your mail gets delayed They may give you a break Otherwise it'd interfere with The money they'd take
801
A royalty panel May certain problems fix I thought we abandoned royalty In 1776
802
A royalty panel Is like a secret boy's club To get in you have to know The secret hand rub
803
Any owner affected By new royalty rates Can argue about them If they're feeling irate
901
This section is all about Semiconductors There's no rhyme for this word So la la la luctor
902
Actually it deals with circuit mask creation But only for nationals And original work done
903
Mask copyrights are like others Upon closer inspection So frankly I don't see The point of this section
904
Mask copyright lasts For only ten years The same length to which all Other ones should be sheared
905
Only the mask owner Can use the mask, duh. I can't believe this chapter Is fourteen sections, no suh
906
Here's something: a mask may be Reverse engineered Just not copied directly Now, isn't that queer?
907
Only the infringer Is liable and wrong If you bought a copied chip You can move right along
908
You can register a mask work Within two years it's made And then it is recognized Only - surprise! - if you've paid
909
A notice on a mask work Is a circle 'round an "m" Once again, I say I've Never seen one of them
910
If you copy a mask work Without the permission The government will use your head For research on fission
911
Damages for mask copying You will have to pay Your equipment and profits And maybe 250K
912
The laws in this chapter Preempt laws of states But other federal laws Might make these dissipate
913
Your liability here Might depend on the date Be sure to read this section Before you violate
914
These laws apply not just here But in all member states We will try to stop violations Unless we're too late
1001
This section defines Many audio words Audio is stuff that's Not seen, but is heard
1002
All audio devices Must have copy controls The reasons for this The RIAA extols
1003
Even with copy con- Trols, you must pay A "just-in-case" fee To the RIAA
1004
One dollar at least For each audio device But it may be that twelve Is as high as the price
1005
The Treasury holds onto All of this money And makes interest on it, too, Now isn't that funny?
1006
If someone makes claims That their work has been taped They might get some money From the Treasury's take
1007
They can file and make claims And all sorts of disputes In the end it comes down to Those guys in the suits
1008
The devices themselves Are not covered herein And neither is illegal Song copyin'
1009
If you didn't include any Copy controls You may have to pay 'Bout a thousand Royce Rolls
1010
To sue someone for Their sub-standard devices Lots of letters go back and forth Once, twice, and thrices
1101
This little chapter Only says that it's wrong To surreptitiously Tape someone's song
1201
You cannot reverse Any copy hardware Nor sell any products That do so, beware Nor make VCRs Without them, don't dare
1202
Don't mess with the notice Of copyright law Or remove it, or people Will say they "never saw"
1203
If damaged by one of The previous things Take them to court Until one of them sings
1204
If willfully done You will pay a high price And double the bill If you do the thing twice
1205
A funny little clause here It sure seems to me It says that these sections Don't trump privacy
1301
This chapter deals mostly With vessels and hulls I hope I can write it Without being dull
1302
Designs must be new And of uncommon shape They can't look like something A child could make
1303
When working on something Already in place A new thing's created If it has a new face
1304
The design is protected Only after its shown Or to the appropriate Registers known
1305
The design is protected For only a decade And then any person Can use what you've made
1306
The sign of a copyrighted Design is a letter A "d" in a circle - The mask one is better
1307
Without the "d" notice You can't collect costs In fact, if someone started You must pay what he lost
1308
Only the designer Can make objects galore Although, frankly, I thought That's what patents are for
1309
As usual, if you make An object protected You've infringed, although exceptions Are not here neglected
1310
You've only got two years To claim your design So hurry and don't forget To pay up in time
1311
But if you have already Filed the design In some other country It'll all turn out fine
1312
When swearing an oath You can do it in writing I'm not talking here About swearing while fighting
1313
Your filed design Is examined by those Who may say it's good or May not; well, who knows?
1314
If you get a certificate The design will be mentioned It's shape and it's form And all it's intention
1315
The office will publish A list of inventions In order to forgo Invention contention
1316
And here's no surprise To register costs dough You should know, and that's why I'm telling you so
1317
More rules may be added As they go along This verse is much longer Than the section is long
1318
You can always obtain A copy of your stuff As if 1315 Just wasn't enough
1319
If any mistakes On the records are found They might get corrected If someone's around
1320
Your rights can be transferred If you're so inclined And also the recipient Doesn't really mind
1321
Any infringers must Correct their ways If given some notice At least sixty days
1322
A judge may then order An injunction of sorts And the case may be taken And decided by courts
1323
A fine for misdeeds Is a 50k min And all of your profits From doing your sin
1324
Sometimes, however The court may decide The entire proceedings Should be cast aside
1325
For falsely declaring That someone must pay You'll be rapped on the knuckles And fined 'bout 10k
1326
For falsely inscribing A design copyright It's 500 bucks And you won't sleep at night
1327
Any other actions Of lying 'bout this Will lose you some money Which surely you'll miss
1328
For some reason here It's the USPS That must get involved Into this sort of mess
1329
Ah, here we go now, this Says patents applied Will throw any design copy- Rights to the side
1330
Design rules are subject To trademark law, too So don't misapply them You'll pay if you do
1331
In all that was said here The copyright office Means Library of Congress To be quite precise
1332
They're not retroactive These laws written here They only apply to things After this year
Except for a preface
And appendices few
That's it, do enjoy and
Have a good day, too.
Yehuda
Copyright 2006, Yehuda Berlinger. Permission is hereby granted to copy in part or in whole along with this notice, attribution, and a link back to this web site.
