Copyright Basics

Tutorial

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 The Bundle of Rights
A copyright is actually a bundle of rights. Suppose, for example, that you
hold the copyright to a photograph. You have the following rights:
The right to make copies: You have the right to reproduce the photo
by, for example, scanning it, or photocopying it.
The distribution right: You have the right to distribute copies by, for
example, selling them or giving them away.
The public display right: You have the right to display the photograph
in public by, for example, hanging a copy of in an art show.
The public performance right: It is hard to illustrate this with a
photograph, so assume that you hold the copyright in a song you have
written. The public performance right is the right to perform the song in
public.
The right to make a derivative work: You have to use the photo in
creating another work by, for example, creating a video which displays
images taken from the photo as the song plays in the background.
These rights are recognized in 17 U. S. C. 106 (copyright law is statutory
law).

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 The Purpose of Copyright

The purpose of recognizing these rights is 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. U. S. Const. art. I, 8.

This tutorial considers how a person acquires these rights

how, that is, a copyright gets created.

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 How A Copyright Is Created

A copyright comes into being whenever someone creates an

original work of authorship fixed in a tangible medium. 17 U.
S. C. 102(a). The author holds the copyright. Note: there
is no requirement that the copyright be registered, nor is
there any requirement that the work contain a notice (like the
symbol ) that it is copyrighted.

This tutorial focuses on three questions: What is a work of

authorship? What counts as original? What counts as fixed in
a tangible medium?

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 Work of Authorship

When you read the phrase a work of authorship, it is natural

to think of works with some artistic, intellectual, or other sort
of creative merit. This is not required. A work of authorship
need not have any creative merit. Suppose, for example,
Smith has just completed his first novel, Smith Hero. The
novel is terrible. It has no artistic merit at all.

The fact that Smiths novel is terrible does not prevent it from
being a work of authorship for purposes of copyright law.

a. True
b. False
 Correct!

For purposes of copyright law, a work of authorship need not

have any creative merit. This may seem strange.

After all, the purpose of copyright law, according to the

Constitution, is 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. U. S. Const. art. I, 8.

Wouldnt it better promote the Progress of Science and useful

Arts to provide copyright protection only to works of creative
merit? This would, however, require the courts to decide what
has merit and what does not, and the courts refuse to do so,
regarding themselves as ill-suited to such a task.

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 Too Short?

Sally writes an amusing short story for children which also

helps them learn to add and subtract. Combining the words,
education and entertainment, Sally calls her approach
edutainment.

Suppose that copyright law allowed Sally to hold the copyright

in the word, edutainment.

Then no one could use the word edutainment without

potentially violating Sallys copyright.

(a) True
(b) False
 Correct!

You cannot use the word "edutainment" without making a

copya spoken copy, or a written, printed, digitized, or
otherwise reproduced copy. Therefore, granting Sally a
copyright in the word "edutainment" would greatly restrict the
ability of others to refer to use that word in commentary,
criticism, or in the planning of their own educational
works. This would be an undesirable result.

Restricting the ability of others to talk about Sallys approach,

it would not 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. U. S. Const. art. I, 8.

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 Too Short To Be Copyrighted

Copyright law avoids this undesirable result by holding that

words and short phrases are not works of authorship for the
purposes of copyright law; hence, they cannot be
copyrighted.

Copyright law takes a similar approach to the things we say in

ordinary conversation, as the next screen discusses.

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 Conversation and Copyright

Sally and Roger having a casual conversation about Sallys edutainment

approach to education; in the course of this conversation, Sally says,
Everyone should entertain giving their kids and educational edge with
edutainment. Sally is so pleased with the sentence that she wants to
claim a copyright in it. Is the sentence, Everyone should entertain
giving their kids and educational edge with edutainment, a work of
authorship for purposes of copyright law?

The answer is no. Allowing people to copyright what they say in

ordinary conversation would greatly inhibit peoples ability to report
those conversations to others (as in, Sally had an interesting idea
yesterday; she said, . . .), and would in this way not 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. U. S. Const. art. I, 8. This treatment of
conversational items, illustrates the use the work of authorship
requirement to limit the scope of copyright; copyright law will impose
this requirement to limit copyright from extending, for example, to
gestures we make in a conversation, the movements a professional
basketball player makes in driving to the basket, and so on.

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 Created By A Human Being

A work of authorship must be created by a human

being. Suppose Mason records the sounds bees make in their
hive. Mason distributes the recording under the title, Bee
Song.

Is Bee Songthat is, the sequence of sounds Mason

recordeda work of authorship for the purposes of copyright
law?

a) Yes
b) No
 Correct!

The sounds were created by the bees, not by a human

being. Mason may, however, have a copyright in the
recording, which he did create.

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 Work of Authorship: Summary

A creation can be a work of authorship without having any

creative merit, but it must be created by a human being, and
it cannot consist of just a word or two, or some part of an
everyday conversation.

Thus, work of authorship is a broad category, including, for

example, e-mails, student notes, bad poetry, and this tutorial

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 Originality

A copyright comes into being whenever someonereferred to

as the author--creates an original work of authorship fixed in
a tangible medium.

There are two basic requirements for

"originality": independent creation; and, minimal creativity.

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 Independent Creation

To be original a work must be the independent creation of its

author.

Suppose that, after a great deal of research, you discover a

fact that no one else was aware offor example, that
Shakespeare had a twin brother. You publish your research in
an article in a scholarly journal. Your discovery is original in
the sense you were the first to discover it.

(a) The fact that Shakespeare had a twin brother is original

in the sense required by copyright law.

(b) The fact that Shakespeare had a twin brother is not

original in the sense required by copyright law.
 Correct!

The fact that Shakespeare had a twin brother is not your

independent creation, and consequently you have no
copyright on this fact, although you may have a copyright on
other aspects of your scholarly article.

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 Minimal Creativity in Feist

A work of authorship must exhibit some minimal creativity to

qualify for a copyright. The landmark case is Feist Publications v.
Rural Telephone Service, 499 U. S. 340 (1991). Rural published
a telephone book containing names, telephone numbers, and
addresses listed in alphabetical order.

The information is factual and not created by Rural Telephone;

however, Rural Telephone did choose the alphabetical order for
presenting the names. Does Rural Telephone have a copyright on
arranging those names, telephone numbers, and addresses in
alphabetical order?

The court held that the arrangement was not sufficiently

original. The arrangement had been in use for a long time in
telephone books and elsewhere.

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 At Least Some Creative Choices

To satisfy the originality requirement, an author must make at

least some creative choices in producing the work.

Suppose Dixon is listening to a lecture on property law. She

thinks the professor is presenting things in a rather confusing
way, so, when she takes her notes, she rearranges the
presentation in way that makes more sense to her.

(a) Dixon made creative choices in organizing her notes.

(b) Dixon did not make creative choices in organizing her

notes.
 Correct!

When Dixon rearranges the presentation in a way that makes

more sense to her, she makes creative choices about how to
organize the material.

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 Not Much Creative Is Required

Dixons creativity is most likely enough to satisfy the originality

requirement. Only a minimal amount of creative choice is
required.

Note: the creativity requirement can be fulfilled even if the

author creates something which has already been created
before.

Suppose, for example, Dixon is not the first student to find the
professors presentation confusing. Imagine George had the
same reaction a year before Dixon, and like her, reorganized the
presentation in his notes in exactly the way Dixon would do a one
year later. Dixons notes still satisfy the creativity requirement
because she did not copy them; they result from her own
creative choices.

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 Fixation

To be copyrighted, an original work of authorship must be fixed in

a tangible medium of expression. Under 17 U. S. C. 101, A
work is fixed in a tangible medium of expression when its
embodiment in a copy or phonorecord, by and under the
authority of the author, is sufficiently permanent or stable to
permit its to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration.

Dixons notes are an original work of authorship. Suppose that

she handwrites her notes on paper. When she handwrites the
notes,

(a) she fixes them in a tangible medium of expression.

(b) she does not fix them in a tangible medium of expression.

 Correct!

The handwritten notes are a copy sufficiently permanent

or stable to permit its to be perceived, reproduced, or
otherwise communicated for a period of more than
transitory duration, and the notes are embodied in this
copy by and under the authority of the author.

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 Digital Fixation

The result would be the same if Dixon had taken her notes on
a computer and saved them on the hard drive. She would still
create a copy sufficiently permanent or stable to permit its to
be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration, and the copy would
be produced by and under the authority of the author.

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 Ideas Cannot Be Copyrighted

One important limitation on copyright is that ideas cannot be

copyrighted. Only the expression of an idea fixed in an original work
of authorship can be copyrighted.

To see why, recall the point of copyright as expressed in Art. I, 8 of

the Constitution. The purpose is 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.

Allowing people to copyright ideas would not promote the Progress

of Science and useful Arts. It would make progress more difficult by
inhibiting the free flow and discussion of ideas. Every time someone
expressed a copyrighted idea, they would be potentially violating
copyright.

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 Fair Use

Another important limitation on copyright is fair use. The

doctrine of fair use allows someone to use a copyrighted work
without violating the copyright even though the person did not
get permission for the use from the copyright holder. 17 U. S. C.
107.

Typical examples: quoting from a copyrighted work in a scholarly

article or newspaper story; and, using copies of a copyrighted
work for an educational purpose. The rationale is the same as the
rationale for not allowing copyright in ideas: namely, allowing
fair use promotes the Progress of Science and useful Arts.

Exactly what constitutes fair use is a complex and controversial

topic.

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