Why Copyright Laws Vary

Whenever you write a song or a story, draw a picture, or create anything else and put it down on paper, build it, or play it, you automatically own the copyright to it, including literary, intellectual, musical, and other forms of art, software, films, photos, and more. The list of what is protected by copyright does vary from country to country, so if you are curious, check with your government’s copyright office.

Copyright gives you the ability to determine just what happens to that piece of work. Whether you want to distribute it, copy it, print it, sell it, or do anything else to it – including give the rights to it to someone else – you can, because it belongs to you for, usually, as long as you live, plus 70 years. That is why some works eventually, if the copyright is not transferred to someone else, are considered to be in the “public domain.”

“Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” – United States Constitution, Art. I, Section 8

History

In 1790, according to the United States Copyright Office, the constitution guaranteed that if a person created something, they held the rights to it, originally for 14 years. This was extended to 28 years in 1831. However, while an author, for example, can prevent others from using their exact words, they cannot prevent others from using an “idea, procedure, process, slogan, principle, or discovery.” As time went on, different provisions and time limits expanded the copyright laws.

In 1909, President Theodore Roosevelt signed the Copyright Act of 1909. This act “granted protection to works published with a valid copyright notice affixed on copies. Accordingly, unpublished works were protected by state copyright law but published works without proper notice fell into the public domain.

The copyright term remained at 28 years with a renewal term of 28 years, but the author was granted the right to terminate any transfer of his copyright between the initial and renewal term.” This act also allowed for the reproduction of music and added a provision for motion pictures in 1912 which, until that time, had to be registered as a series of photos.

Of course, as the world and its technology have changed, so copyright law has had to change. In 1998, the Digital Millennium Copyright Act limited online infringement liability for online service providers.

Up until 1989, works had to have a valid copyright notice on them in order to be protected. However, works that are published after March 1, 1989 do not need to have a valid copyright notice in order to be protected, but it’s still advisable to have one. If a work has a notice on it, a person who has infringed, cannot claim that they didn’t know.

Copyright in Practice

What does a copyright notice look like? If you have written a blog, for example, in the footer, you should say Copyright © 2006 and your name or the owner of the published works. If you have created something, whether it’s an app or a novel, you should register the copyright. If your novel is being published by a publisher, they will likely do this for you, but you should check to be sure. Registering a copyright is easy. You need to fill out the proper forms, which are available at copyright.gov or by calling the U.S. Copyright Office at 202-707-9100. It currently costs $45 to register a work. You can register a group of works together and save money if need be.

So just how do you know when to register a copyright, and why should you care? Copyright law is important for even the small creations you make. What if you make a logo or poster for your business or team? Perhaps you spent a lot of time on it and are really proud of your design. What if, after unveiling this amazing design, another team or business decided to “borrow” your logo and use it for their t-shirts?

Not only would this be upsetting to you, but wouldn’t you feel as though you should be compensated or at least credited for the time and effort you put into the logo, especially if someone else is going to use it? Of course. And without copyright law, you wouldn’t necessarily be entitled to that compensation or credit.

On the other hand, some works are available to be used by the public at large because the copyright has expired. This is called being in the “public domain.” According to Stanford University, “All works published in the United States before 1923 are in the public domain.”
This includes:

  • “Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.
  • “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.
  • “Lastly, if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.”

If you are interested in a certain work, the renewal records for works since 1950 are available online at copyright.gov. The copyright office can conduct renewal searches for you, as well, for a fee.

Fair Use

There are provisions for “fair use,” where permission is not necessarily required from the author or creator of a work. In these cases, it has been determined by Congress that there are times when the need for the public to be informed is more important than the need of a creator to be compensated. In general, if you want to use someone else’s work in a small, non-competitive way to the benefit of the public, you are probably fine. Courts use these criteria, generally, to determine fair use:

  1. “Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it’s usually not fair.)
  2. “How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
  3. “How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use than if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).”

Being sure to quote and credit an author when using their work to benefit another work is also necessary. When in doubt, if possible, track down the author and ask.

International

International copyrights are also a growing consideration in a world advancing technologically. The U.S. Office of Policy and International Affairs (PIA) attorneys have “substantial expertise in foreign copyright issues and international copyright treaty obligations.” They work on many copyright issues with the World Intellectual Property Organization (WIPO) and in other areas. These attorneys serve on “U.S. government delegations for bilateral and regional trade agreements and copyright treaty negotiations between the United States and other countries.”

A number of different organizations work to solidify copyright law throughout the world. The World Intellectual Property Organization is a global organization of the United States with 189 member states and self-funded. The International Federation of Reproduction Rights Organisations (IFRRO) and the European Copyright Commission all work to protect international copyright laws. The Berne Convention is a treaty often referred to in international copyright. It was originally accepted in 1886 and mandates that all countries that sign treat the works of authors and creators in other countries at least as well as they treat their own. This treaty has been amended to include varying types of works over the years as well. The full text of the Berne Convention Treaty of 1971 is available online.

Summary

Copyright law may seem complex and even a little intimidating, but really, for the creator, it’s pretty simple. Register your work and you are protected. Even if you don’t register, you’re probably still protected. If in doubt about your own work or using the work of someone else, consult an attorney.



About the author

picture1Houston defense lawyer Greg Tsioros provides legal advice and aggressive representation for clients charged with misdemeanors and felonies at both the state and federal level. Read more about The Law Office of Greg Tsioros at www.txcrimdefense.com.

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