This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.
Before we jump into the copyright overview, which is reprinted below, we would like to thank Allan Ryan, who is the Director of Intellectual Property at Harvard Business School Publishing. In addition to writing a large portion of the copyright overview, Allan provided invaluable feedback on the intellectual property sections of the guide and kept us focused on the unique needs of citizen media.
A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.
Like any area of the law, copyright can get complex at its outer limits. However, a working knowledge of copyright law is not hard to acquire and will guide you through nearly all the situations you are likely to face in your day to day work.
Let’s start with some of the building blocks. First, all copyright law is federal law and therefore uniform across the country (in theory). States have no role, because the Constitution gives Congress the sole "power . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress first exercised this power to establish copyrights (and patents) in its first meeting in 1791, and it has regularly revised and updated the law ever since. Though the last comprehensive copyright revision was enacted in 1976, Congress has passed many new copyright laws and amended others – sometimes after highly contentious lobbying and debate – in the digital era.
Second, copyright law covers an extraordinarily broad range of creative work. The law calls them "works of authorship" but copyright protects almost all creative work that can be written down or otherwise captured in a tangible medium:
- Literary works – which is basically prose, whether a news story, scientific paper, novel, poetry, or any other form of "words-only" (or words-and-pictures) creative work.
- Musical works – both the lyrics and the music, whether from advertising jingles to symphonies.
- Dramatic works – plays, including any accompanying music.
- Pictorial, graphic, and sculptural works – photographs, drawings, paintings, and any other kind of two- or three-dimensional art.
- Motion pictures and other audiovisual works – movies, television shows, YouTube videos, and any kind of multimedia.
- Sound recordings – in addition to the copyright on words and music (above) a separate copyright protects a recording artist’s rendition of a work
- Architectural works – blueprints and similar plans for buildings.
For more information on works protected under copyright law, see the section in this guide on Copyrightable Subject Matter.
Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work; to distribute the work publicly (or not so publicly); and to perform or display the work, if it is a work of performance or visual art. Owning a copyright also gives you the exclusive right to prepare "derivative works," which are the original works in new forms – for example, a translation into another language, or a movie made from a novel, or a revised or expanded edition of an existing work. Someone who does these things without your permission is infringing your copyright, and the law provides recourse to you. For more details on the exclusive rights granted to a copyright owner, see the section on Rights Granted Under Copyright.
Third, copyright is extraordinarily easy to acquire. In fact, you really need do nothing at all – the law provides that copyright springs to life and protects an author’s work from the time the work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .” So when words are put on paper, or paint to canvas, or sights to a videotape, digital camera or cellphone, or even when any of the above are stored in a computer’s memory – they’re copyrighted. That’s it. They don’t have to be published. There is no requirement to put a copyright notice on it (though that is often helpful). There is no requirement that it be registered with the Copyright Office in the Library of Congress (though commercial publishers routinely do that, to show up in the database of copyrighted works.) If you are interested in registering your work with the Copyright Office, consult the section on Copyright Registration and Notice.
The law requires only that copyrightable works of authorship be "original" – but that is an easy hurdle to clear. Unlike the patent laws, there is no requirement that a work be innovative, meritorious, or even particularly bright or interesting. A work of authorship just can't be a copy of anyone else's work, and it must have some modest degree of creativity to it. In 1991, the Supreme Court ruled that an ordinary white-pages telephone book was not sufficiently creative to be copyrighted, but that gives you an idea of how low the barrier is. Any "work of authorship" that you create in the honest application of your own skills will likely be sufficiently "original" to be protected by copyright.
So what is the catch? None, really, but there are two cardinal principles of copyright that – fortunately – limit its reach. First, copyright protects the form in which ideas are expressed (the essay, the novel, the news story in the paper or on the blog) but it does not protect the ideas themselves. Nobody owns ideas. You might write the most insightful, original, and brilliant blog post on how to achieve peace in the Middle East or reduce carbon emissions, but from the moment you publish the post anyone may seize upon that idea to expand upon it, analyze it, criticize it, or discuss it in any way they like. What they can’t do is reprint your expression of the idea, without your permission. (And, at least in academia and among reputable publications, they ought not to present the idea as their own, or even to discuss it without first acknowledging that it is your idea. However, because copyright does not protect ideas, the law does not punish plagiarism of ideas. For more information on the distinction, refer to the section on Copyright Infringement.)
Second, copyright does not protect facts. No matter how long and hard you work to uncover and report facts, no matter how significant the impact of your reporting, you don’t own those facts. Anyone can repeat them, so long as they do not copy your story itself. By the same token, of course, you can appropriate facts that someone else has reported, without copyright concerns. (You ordinarily have an ethical obligation to credit the source of your facts, but it’s not a copyright obligation.) For more information on the types of works not covered by copyright, consult the section on Works Not Covered by Copyright.
As these principles suggest, copyright in its classic formulation is an effort to balance two often-conflicting goals. We want to encourage people to report the news, create art, publish works of history and science, and generally advance knowledge. The law provides the creators the exclusive ownership of their works for a limited time so that they can make money from them. On the other hand, we want to encourage a free flow of ideas, discussion, and intellectual synergy. Facts and ideas are put into the public domain at the moment of birth. In the words of Oliver Wendell Holmes, "the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution." Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
This effort to achieve balance naturally produces conflict. How can you challenge a blog post proposing a new way to reduce carbon emissions unless you can quote from the copyrighted post itself? Requiring you to get the original author’s permission would certainly inhibit the free flow of ideas and would come very close to giving that author control over the idea. To ease this conflict, the law recognizes a principle known as "fair use," which is simply the freedom to quote from another’s copyrighted work in the course of creating your own copyrighted work.
There have always been unspecific but sensible limits to this principle – you generally can't, for example, “quote” another’s work by reprinting it in its entirety, even if you threw in a few new words of your own (on the other hand, if the original work was only a few paragraphs long, you might even be able to do that in some circumstances). Generally, courts recognize that if the borrowing is not excessive, that if it advances the creation of a new work, and if it does not undercut the market for the original work, the use is fair. The section on Fair Use in this guide provides more information on the fair use doctrine.
In the digital era, "fair use" has become a battleground. No one challenges the original principles, but instant reproduction and worldwide distribution of any digital work is within everyone’s reach. Some creators of copyrighted works – record labels and movie distributors most prominently – have imposed electronic lockdowns, known as digital rights management, on their works. This has led some to claim that these lockdowns extinguish their fair use rights.
There is another aspect to this political battle. The Constitution authorizes Congress to protect writings and discoveries for "limited times." In the 19th century, a "limited time" meant no more than 28 years after publication. For most of the 20th century, it meant up to 56 years. But since 1998, it has meant for the life of the author and for an additional 70 years. So, if a 25-year old author creates a work in 2008 and lives another 60 years, that work is protected by copyright until 2138, an extraordinary 130 years. By that measure, most of the works of Henry James and Mark Twain would still be copyrighted today. Many critics of the current copyright structure point to this lengthy protection as an unwarranted distortion of “limited time,” but the Supreme Court upheld the law in 2003. (As a rule of thumb, any work published before 1923 is probably now in the public domain; any work published since then probably is not, but there are exceptions to both those guidelines.)
Because a copyright is intangible property (hence, "intellectual property," a field that also includes patents, trademarks, trade secrets, and now URLs and domain names), it can be bought, sold, given away, bequeathed at death, and licensed to others. Indeed, licensing is an active field in copyright law. An author’s contract with a publisher is a license; while the author may retain the copyright, the publisher shares the revenue and edits, prints, and distributes the work. Works may also be sold outright, as newspapers often require freelancers to do. Ownership may also vest in the employer from the outset, if creating copyrighted works is part of one’s employment. For more information, visit the sections on Licensing Your Content and Getting Permission to Use the Work of Others to use someone else's work.
There are other aspects to copyright law that can be useful to know. For example, works of the US Government are never copyrighted and hence can be reproduced without payment or permission. Copyrighted works such as music, movies, and drama may be performed or displayed (but not copied) without permission in the course of face-to-face teaching and distance learning in schools and universities. A library user is generally entitled to make a single copy of a copyrighted work for private study and scholarship.
In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatise on copyright law, but it does provide what we hope is a good understanding of what you need to know, both to make intelligent use of others’ creative works and to protect your own.
- What Copyright Covers - Describes copyrightable subject matter and the rights granted under copyright.
- Copyright Ownership - Explains different types of authorship, the registration and notice process, and how to license your work to others.
- Using the Work of Others - Describes the types of works not covered by copyright, the doctrine of Fair Use, linking to another's work, getting permission to use another's work, the issues that arise from circumventing copyright controls, and copyright infringement.
- Notice-and-Takedown - Outlines the steps involved in issuing and responding to a DMCA takedown notice related to copyrighted material and explains the immunity provision for user-submitted content under the DMCA.