Copyright Basics FAQ

These frequently asked questions explain what intellectual property and copyrights are, and how and what they protect.

What type of creative work does copyright protect?

Copyright protects works such as poetry, movies, CD-ROMs, video games, videos, plays, DVDs, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography, and architectural designs.

To qualify for copyright protection, a work must be "fixed in a tangible medium of expression." This means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium, including a computer's random access memory (RAM), the recording media that capture all radio and television broadcasts, and the scribbled notes on the back of an envelope that contain the basis for an impromptu speech.

In addition, the work must be original -- that is, independently created by the author. It doesn't matter if an author's creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity, or aesthetic merit. So long as the author toils without copying from someone else, the results are protected by copyright.

Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book's white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.

Does copyright protect an author's creative ideas?

No. Copyright shelters only fixed, original, and creative expression, not the ideas or facts upon which the expression is based. For example, copyright may protect a particular song, novel, or computer game about a romance in space, but it cannot protect the underlying idea of having a love affair among the stars. Allowing authors to monopolize their ideas would thwart the underlying purpose of copyright law, which is to encourage people to create new work.

For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical, or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. For instance, anyone is free to use information included in a book about how the brain works, an article about the life and times of Neanderthals, or a TV documentary about the childhood of President Clinton -- provided that that they express the information in their own words.

Facts are not protected even if the author spends considerable time and effort discovering things that were previously unknown. For example, the author of the book on Neanderthals takes ten years to gather all the necessary materials and information for her work. At great expense, she travels to hundreds of museums and excavations around the world. But after the book is published, any reader is free to use the results of this ten-year research project to write his or her own book on Neanderthals -- without paying the original author.

How long does a copyright last?

For works published after 1977, the copyright lasts for the life of the author plus 70 years.

However, if the work is a "work for hire" (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published. For more information on public domain works, see "Using Works in the Public Domain."

All works published in the United States before 1923 are in the public domain -- that is, not protected by copyright law.

Works published after 1922 but before 1978 are protected for 95 years from the date of publication. But if the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.

If the author died over 70 years ago and the work was never published,  copyright terminated on December 31, 2002. If the author died over 70 years ago, and a previously unpublished work was published before December 31, 2002, the copyright will last until December 31, 2047.

Is the Work Published?

In the complicated scheme of copyright laws, which law applies to a particular work depends on when that work is published. A work is considered published when the author makes it available to the public on an unrestricted basis. This means that it is possible to distribute or display a work without publishing it if there are significant restrictions placed on what can be done with the work and when it can be shown to others.

For example, Andre Bergmino writes an essay called "Blood and Oil" about the war in Iraq, and distributes it to five human rights organizations under a nonexclusive license that places restrictions on their right to disclose the essay's contents. "Blood and Oil" has not been "published" in the copyright sense. If Bergmino authorizes posting of the essay on the Internet, however, it would likely be considered published.

For More Information

For the essential information and forms you need to protect all types of written expression under copyright law, get The Copyright Handbook: What Every Writer Needs to Know, by Stephen Fishman (Nolo), which has been completely updated to provide the latest case law and copyright regulations.

What is copyright?

Copyright is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how  the work is used. Those rights include:

  • reproduction right -- the right to make copies of  a protected work,
  • distribution right -- the right to sell or otherwise distribute copies to the public,
  • right to create adaptations (or derivative works) -- the right to prepare new works based on the protected work, and
  • performance and display rights -- the right to perform a protected work such as  a stage play or display a work in public.

An author's copyright rights may be exercised only by the author or a person or entity to whom the author has transferred all or part of her rights. If someone wrongfully uses the protected material, the copyright owner can sue and obtain compensation for any losses suffered.

For a complete discussion of copyright law, see  The Copyright Handbook, by attorney Stephen Fishman.  

 

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