By Mark F. Radcliffe and Diane Brinson of DLA Piper LLP (US)
Copyright law in the U.S. is based on the Copyright Act of 1976, a federal statute that went into effect on January 1, 1978. We'll refer to this statute throughout the book as the Copyright Act.
States cannot enact their own laws to protect the same rights as the rights provided by the Copyright Act. For example, a state cannot pass a law to extend copyright protection on works in the state beyond the term of protection given by the Copyright Act. State "copyright" laws exist, but they are limited to works that cannot be protected under federal copyright law. (Requirements for federal protection are discussed in "Standards," later in these materials.)
Copyright law is important for multimedia developers and publishers for two reasons:
Original multimedia works are protected by copyright. The Copyright Act's exclusive rights provision gives developers and publishers the right to control unauthorized exploitation of their works.
Multimedia works are created by combining "content" - music, text, graphics, illustrations, photographs, software - that is protected under copyright law. Developers and publishers must avoid infringing copyrights owned by others.
Types of Works Protected by Copyright
Copyright law protects "works of authorship." The Copyright Act states that works of authorship include the following types of works:
Literary works. Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories
Musical works. Songs, advertising jingles, and instrumentals.
Dramatic works. Plays, operas, and skits.
Pantomimes and choreographic works. Ballets, modern dance, jazz dance, and mime works.
Pictorial, graphic, and sculptural works. Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.
Motion pictures and other audiovisual works. Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works.
Sound recordings. Recordings of music, sounds, or words.
Architectural works. Building designs, whether in the form of architectural plans, drawings, or the constructed building itself.
To receive copyright protection, a work must be "original" and must be "fixed" in a tangible medium of expression. Certain types of works are not copyrightable.
The originality requirement is not stringent: A work is original in the copyright sense if it owes its origin to the author and was not copied from some preexisting work. A work can be original without being novel or unique.
Example: Betsy's book How to Lose Weight is original in the copyright sense so long as Betsy did not create her book by copying existing material - even if it's the millionth book to be written on the subject of weight loss.
Only minimal creativity is required to meet the originality requirement. No artistic merit or beauty is required.
A work can incorporate preexisting material and still be original. When preexisting material is incorporated into a new work, the copyright on the new work covers only the original material contributed by the author.
Example: Developer's multimedia work incorporates a number of photographs that were made by Photographer (who gave Developer permission to use the photographs in the multimedia work). The multimedia work as a whole owes its origin to Developer, but the photographs do not. The copyright on the multimedia work does not cover the photographs, just the material created by Developer.
Facts owe their origin to no one and so are not original. A compilation of facts (a work formed by collecting and assembling data) is protected by copyright only to the extent of the author's originality in the selection, coordination, and arrangement of the facts.
Example: Ralph created a neighborhood phone directory for his neighborhood by going door-to-door and getting his neighbors' names and phone numbers. The directory's facts (names and phone numbers) are not original. Ralph's selection of facts was not original (he "selected" every household in the neighborhood). His coordination and arrangement of facts (alphabetical order by last name) is routine rather than original. The directory is not protected by copyright.
According to Section 101 of the Copyright Act, a work is "fixed" when it is made "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." It makes no difference what the form, manner, or medium is. An author can "fix" words, for example, by writing them down, typing them on an old-fashioned typewriter, dictating them into a tape recorder, or entering them into a computer. A live television broadcast is "fixed" if it is recorded simultaneously with the transmission.
Works prepared by federal government officers and employees as part of their official duties are not protected by copyright. Consequently, federal statutes (the Copyright Act, for example) and regulations are not protected by copyright. This rule does not apply to works created by state government officers and employees.
The design of a useful article is protected by copyright only if, and to the extent that, the design "incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." For example, while a "normal" belt buckle is not protected, a three-dimensional belt-buckle design with a dolphin shape qualifies for limited protection.
Uncopyrightable works and works for which copyright protection has ended are referred to as "public domain" works. (These works are discussed in "Public Domain Works," Chapter 9.)
Procedure for Getting Protection
Copyright protection arises automatically when an original work of authorship is fixed in a tangible medium of expression. Registration with the Copyright Office is optional (but you have to register before you file an infringement suit).
The use of copyright notice is optional for works distributed after March 1, 1989. Copyright notice can take any of these three forms:
© followed by a date and name.
"Copyright" followed by a date and name.
"Copr." followed by a date and name.
The Exclusive Rights
A copyright owner has five exclusive rights in the copyrighted work:
Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form.
Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a "derivative work."
Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending.
Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered "performance."
Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display."
Anyone who violates any of the exclusive rights of a copyright owner is an infringer.
Example: Developer scanned Photographer's copyrighted photograph, altered the image by using digital editing software, and included the altered version of the photograph in a multimedia work that Developer sold to consumers. If Developer used Photographer's photograph without permission, Developer infringed Photographer's copyright by violating the reproduction right (scanning the photograph), the modification right (altering the photograph), and the distribution right (selling the altered photograph as part of the multimedia work).
A copyright owner can recover actual or, in some cases, statutory damages from an infringer. The federal district courts have the power to issue injunctions (orders) to prevent or restrain copyright infringement and to order the impoundment and destruction of infringing copies.
Duration of the Rights
Under current law, the copyright term for works created by individuals is the life of the author plus 70 years.
The copyright term for "works made for hire" is 95 years from the date of first "publication" (distribution of copies to the general public) or 120 years from the date of creation, whichever expires first. Works made for hire are works created by employees for employers and certain types of specially commissioned works (see "The Work Made for Hire Rule" in the Ownership of Copyright materials.).
LIMITATIONS ON THE EXCLUSIVE RIGHTS
The copyright owner's exclusive rights are subject to a number of exceptions and limitations that give others the right to make limited use of a copyrighted work. Major exceptions and limitations are outlined in this section.
Copyright protects only against the unauthorized taking of a protected work's "expression." It does not extend to the work's ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries.
A work's facts are not protected by copyright, even if the author spent large amounts of time, effort, and money discovering those facts. Copyright protects originality, not effort or "sweat of the brow."
A copyright owner has no recourse against another person who, working independently, creates an exact duplicate of the copyrighted work. The independent creation of a similar work or even an exact duplicate does not violate any of the copyright owner's exclusive rights.
The "fair use" of a copyrighted work, including use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Copyright owners are, by law, deemed to consent to fair use of their works by others.
The Copyright Act does not define fair use. Instead, whether a use is fair use is determined by balancing these factors:
The purpose and character of the use.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use on the potential market for, or value of, the copyrighted work.
U.S. authors automatically receive copyright protection in all countries that are parties to the Berne Convention for the Protection of Literary and Artistic Works, or parties to the Universal Copyright Convention (UCC). Most countries belong to at least one of these conventions. Members of the two international copyright conventions have agreed to give nationals of member countries the same level of copyright protection they give their own nationals.
Example: Publisher has discovered that bootleg copies of one of its multimedia works are being sold in England. Because the United Kingdom is a member of the Berne Convention and the UCC, Publisher's work is automatically protected by copyright in England. When Publisher files a copyright infringement action in England against the bootlegger, Publisher will be given the same rights that an English copyright owner would be given.
Works of foreign authors who are nationals of Berne or UCC- member countries automatically receive copyright protection in the U.S., as do works first published in a Berne Convention or UCC country. Unpublished works are subject to copyright protection in the U.S. without regard to the nationality or domicile of the author.
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1. The Parties of this Public Offer (paid service agreement), hereinafter referred to as the “Agreement” or “Offer”, are, as follows:
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