More Feature Articles
by: Mary Lynn Nichols, Ph.D.
Middle Tennessee State University
Copyright is a form of protection provided
by the United States to the authors of "original works of
authorship" including literary, dramatic, musical, artistic
and certain other intellectual works. This protection is available
to both published and unpublished works. This gives the owner
of the copyright the exclusive right to do and to authorize others
to do the following:
- To reproduce
the copyrighted work in copies or phonorecords;
- To prepare derivative works based
upon the copyrighted work;
- To distribute copies or phonorecords of the copyrighted work to the public by sale
or other transfer of ownership, or by rental, lease or lending;
- To perform the copyrighted work publicly, in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and motion pictures and
other audiovisual works;
- and To display the copyrighted work
publicly, in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic or sculptural
works, including the individual images of a motion picture or
other audiovisual work.
Requirements for Protection
a work must be of independent creation. (Not copied or recreated.)
In other words, you can't take someone's screenplay and simply
put it to music, calling it "original." (In an infringment
suit, courts will look at the amount of "substantial similarity"
of one work to an earlier work.)
Although the work need show creative input, the level of creativity
is slight; "even a slight amount will suffice."
attaches automatically to an eligible work or authorship the
moment the work is fixed in a tangible medium of expression;
"now known or later developed." Again, you can't take
someone else's videotape and put it on DVD, calling it your own
just because there was no DVD when the video was created.
"any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which
it is described, explained, illustrated, or embodied" in
such work. (In other words, the idea for a script cannot
be copyrighted - but the written treatment and format CAN be
Types of Ownership
- Single Author:
The person who creates the work, owns the work.
Joint Works: A work prepared by two or more authors. The
work as a whole is owned by each author. If each is to own specific
parts of the whole, a written agreement to that effect should
be made. The right to use a portion (or whole) of the joint work
can be granted by any one of the joint owners since they are
Work-for-hire: A work-for-hire is usually a work created
by an employee within the scope of employment. The employer is
deemed to be the owner and author of the completed work.
Duration of Copyright (incl. Sonny Bono Copyright Term Extension Act
The duration of a copyright is a tricky
topic. If the copyright has expired, the work falls into the
realm of public domain (PD) and can be used without fear of infringement.
Since the length of copyright duration changed in 1978 and was
again modified in 1992, and again in 1998 it is more complicated
to determine whether a copyright is still in force. If you have
any doubts about the work being PD, it would be in your best
interest to seek advice from a copyright attorney or copyright
Registered between 1909 and 1978:
- Protected for 28 years and renewable
for another 28 years.
- If copyright was in its first 28 year
period when the law changed in 1978, the work could be renewed
for 67 additional years. If in its second 28 year period, automatically
extended to a total of 95 years.
Registered 1978 or after:
- Life of the author plus 70 years.
- If joint copyright, 70 years after death
of last surviving author
- Work for hire, the lessor of either
95 years from publication or 120 years from creation.
IMPORTANT: The present law does NOT require
that a copyright notice be affixed to the work. Just because
there is no notice, don't assume it is not protected -- it probably
is. However, if you are seeking to maximize protection of your
work, it is always best to affix the notice. (© Copyright,
date of first publication, and full name of owner)
Overall the law tries to provide a
95 year term of protection to works properly registered in and
Remedies for Infringement
- Injunctive relief - federal court order
Seizure - during lawsuit, all copies can be seized pending the
outcome of the case.
Damages - Actual damages to copyright owner plus all profits
Statutory damages - $200-25,000 per act (non-willful)
Punitive damages - up to $500,000 1st offense/5 years (willful)
$1 million/10 years subsequent)
Costs and Attorneys fees - court will determine
Statute of limitations - suit must be filed within three years
TYPES OF REGISTRATION
The most commonly sought copyright permissions
for corporate communication use are registered as text, sound
recordings, visual arts or performing arts. Multi-media and audiovisual
projects would be registered in one of these categories as well.
It is important to remember that music can be copyrighted in
- Lyrics can be copyrighted
- Score and arrangement can be copyrighted
- Performance may be copyrighted by record
Song is usually owned by writer and publisher.
Most Common Licenses:
- Performance License - To perform the
work in the presence of an audience. (MAY be covered by a blanket
- Sync License - Allows you to cut visuals
- Mechanical License Can record and distribute
the music on an audio only format.
- Allows for use and alteration of the
music to fit your final product. Also used for parody applications.
(Might also be required for use of sound recording depending
on the use.)
For sound recording clearances you will
most often require:
- Master Use Rights; The use of an original
work in full or in part.
The rights to musical compositions and
sound recordings are likely to be assigned to music performing
rights organizations (PRO's) such as BMI, SESAC and ASCAP. When
a product is assigned to one of these organizations, the publisher
and performers often leave the task of handling the details of
copyright requests to them. (Some performers do not permit these
clearinghouses to grant performance rights for them, they will
often deal only with lawyers, talent agencies and copyright search
firms.) All of the major PRO's are accesible through the internet.
These are fun sites to visit because
they have search capacities for songs when you only remember
a few words, or you only remember the song, but not the artist.
You can even download portions of a tune to see if it's the one
your looking for. Just remember to get clearance for it before
you use it!
REMINDER: Often you will need more than
one license for a specific project. In any case, be sure to get
a warranty from any party who licenses something to you that
they have those rights to grant to you and indemnity so if you
are sued, they pay.
Public Performance License fees
New glitch in corporate use of music.
ASCAP and BMI now charging for performance using copyrighted
- If you show a video for which you have
paid for rights - you will now be charged an additional fee for
showing the video. Fees will be about 4 cents per attendee to
your meeting or convention with a $50 minimum.
- Fee will be a public performance license
For a specific work of visual art, there
are several ways to seek ownership information. The most common
is to contact the U.S. Office of Copyright to do a search of
copyright registration. It is also common for a person to contact
the magazine, museum, publisher or other location of the work
desired to request ownership information.
Although there is no specific clearinghouse
for the rights and permissions to use protected works of visual
art, there are several stock houses the maintain libraries of
such works. These stock houses have negotiated rights for specific
works and can often find the work you request or similar works
that have been previously cleared.
In any multimedia work, there may be
several elements, usually including a motion-picture element
or other audiovisual element, or a sound recording element.
An audiovisual element consists of a
series of related pictorial images intended to be shown by the
use of projectors, viewers, or electronic equipment. This element
may be a filmstrip, slides, a film, a videotape, a videodisk,
or a CD-I (interactive compact disk).
A motion-picture element is an audiovisual
element which consists of a series of related images which, when
shown in succession, impart an impression of motion. This element
may be in the form of film, videotape, videodisk, or a CD-I.
A sound-recording element is a series
of recorded sounds. Sounds accompanying an audiovisual or motion
picture element are not defined in the copyright law as a "sound
There is some activity in this area of
copyright law. With the increased interest in producing the new
DVD format, some forms of DV might fall under multimedia protection,
while others might fall under the more traditional protections
of motion picture, sound recording or text. As with any new format,
the laws will eventually catch up with the technology. In the
meantime, to use DVD information, it would be best to seek professional
help in copyright searches.
Fair use is a way to use copyrighted
material without fear of infringement. However, restrictions
apply. Prior to using any material under Fair Use provisions,
you should determine:
- 1. The purpose and character of the
use, including whether such use is of a commercial nature or
is for non-profit 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.
Examples of fair use:
- -the quoting of small portions of a
copyrighted book in connection with a review of the book.
-quoting a portion of a copyrighted speech in an article published
in a scholarly journal.
-displaying a copyrighted painting in connection with a television
news report on the artist.
- Not likely to be protected if whole
work is appropriated. i.e. cartoon.
It is important to note that corporate
use of copyrighted material is rarely protected by Fair Use.
The Fair Use Guidelines are specifically designed to apply to
nonprofit educational facilities. Corporate training facilities
ARE NOT considered nonprofit and they ARE NOT considered educational
facilities under the guidelines.
Works that are created by U.S. Government
employees are not eligible for copyright protection. This includes
any video, film, print, AV and other created works. However,
you must be careful that the work you want to use is a product
of government employees. If a production company was hired to
produce the final product, chances are they own the copyright,
rather than the government.
There is also a common misconception
that government employees can use (infringe) any material they
want because the government can't be sued. This is not true in
the case of copyright. Once a work is protected, even the government
must seek clearance to use the material.
COPYRIGHT YOUR WORK
For best protection affix notice including:
©, full name, date (i.e. Copyright © Mary Lynn Nichols
Then register the work by sending the following three elements
in the same package to the Registrar of Copyrights, Copyright
Office, Library of Congress, Washington, D.C. 20559:
- A properly completed application form;
- A non refundable filing fee of $20 for
- A non returnable deposit of the work
being registered. (Check specific requirements for your particular
For information on copyright forms and information contact:
Information and Publications Section,
Library of Congress
Washington, DC. 20559
Status of pending legislation:
This article is reprinted
with permission from the author, Mary Lynn Nichols, Ph.D.