Copyright is a system of legal rules designed to promote learning and culture by giving authors limited rights to control certain uses of their works, including copying, distribution, and public performance. By granting this control, the law hopes to create opportunities for authors to exploit their works commercially (traditionally through large intermediaries like publishers, movie studios, and record labels), and thereby to give an incentive for creation and publication of new creative works. Copyright applies to all kinds of creative works, from books to paintings to feature films and even software.
While authors (and the companies who buy and exploit their rights) are the initial beneficiaries of copyright, the ultimate purpose of copyright is to promote creation and distribution of creative work to benefit the public. That’s why, while copyright provides robust protection for copyright holders, it also provides balancing rights to users of copyrighted works, who also play an important role in serving the ultimate goal of public access to a rich variety of expressive works. Libraries, schools, and other institutions with a clear public service mission have specific exceptions for their benefit, and everyone has the right to make fair use of copyrighted works without payment or permission.
Understanding this balance of rights is important for authors and users alike. Authors who know their rights can make more informed decisions about how they license others to use their works. Authors who want primarily to be read, or to permit others freely to re-use their works to make new works, can use tools like Creative Commons licenses, and avoid signing exclusive agreements with publishers who will lock their works behind paywalls. And users who understand copyright will know when their activities are privileged by fair use and other copyright limitations and exceptions, and when to seek permission to share or re-use protected works.
Finally, it is worth noting that the boundary between "authors" and "users" is actually quite porous. All authors are users of existing works, whether in their research or incorporated directly into their creations, so authors rely on users' rights as part of their own creative process. And users are also often authors of their own works, and expect some measure of legal protection for those works. The dichotomy between authors who want maximum protection and users who want maximum access is false; the law protects an ecosystem of people who inhabit multiple roles, and is (mostly) designed to distribute rights and responsibilities to everyone in a balanced way.
What types of expression are eligible for copyright protection?
Copyright is a type of intellectual property that safeguards original works of authorship once they are fixed in a tangible form of expression. A work is considered fixed when it is recorded (either by or with the author's consent) in a sufficiently permanent medium, allowing it to be perceived, reproduced, or communicated beyond a short period.
A work is deemed original if it is independently created by a human author (see Naruto v. Slater) and exhibits a minimal level of creativity. Independent creation simply means that the work is made by the creator without copying from others. The Supreme Court has stated that for a work to be considered creative, it must display a “spark” or a “modicum” of creativity. However, certain things are not considered creative, such as titles, names, short phrases, and slogans; common symbols or designs; simple variations in typography, lettering, or coloring; and basic ingredient or content listings. It's important to remember that copyright protects the expression of ideas, not the ideas themselves, nor does it cover procedures, methods, systems, processes, concepts, principles, or discoveries.
Copyright is a limited monopoly: the law gives copyright holders the exclusive right to do or to authorize a handful of specific things. The public is allowed to do anything it wants with a work outside of those specific rights. For example, while copyright grants an exclusive right to perform works publicly, private performances are completely outside of the law. You can sing in the shower all you like, and it’s nobody’s business but yours.
The copyright holder’s rights are:
Reproduction: the right to make new copies of the work. Although this right is not limited to commercial or large scale uses, every day private copying like forwarding an email or scanning a page from a book for research is often protected by fair use.
Distribution: the right to transfer a copy of the work to the public by sale, rental, lease, or lending. This right is balanced by the “first sale doctrine,” which allows the owner of any lawfully-made copy to dispose of that copy however she wishes. So, the distribution right is primarily a right to distribute a particular copy for the first time; after it is sold for the first time, the copy can circulate freely, just like any ordinary object. The first sale doctrine is what allows you to buy or sell used books and records, and libraries to lend them. (There are a couple of exceptions - software and music, for example, have special rules that block rental businesses.)
Public performance: This right applies when a copyrighted work is performed for a group of more people than a typical circle of family and friends. Examples of works that can be “performed” include plays, movies, or songs, but public recitation of a textual work (such as a poem or story) or performance of a dance also requires permission, unless they are covered by an exception (or fair use). Many performances that take place on a university campus are technically “public,” but the law permits a core use—performances for classroom teaching—without permission. (The idea that libraries and universities always need to buy public performance rights with their videos is a common misperception of copyright.) Notably, posting a streaming video online also constitutes a public performance, since the video is transmitted to members of the public. That means distance education and other online teaching and learning activities implicate this right. Section 110 of the Copyright Act carves out a series of exceptions to the public performance right for churches, playing broadcast TV or radio in bars and restaurants, and several other common performance scenarios.
Public display: This is the equivalent of performance, but covers making the work visible to the public.
Adaptation: This is the right to make what are called “derivative works” - works that take an existing work and recast it into a new form, such as translations, film adaptations, and sequels.
In addition to these rights, there are very limited moral rights available to the authors of certain works of fine art (works made in very limited quantities, signed and numbered by the artist) - primarily the right of attribution and to prevent being associated with a version of the work that has been modified without the author’s permission. When such works have achieved “recognized stature,” the author can also prevent their destruction.
A copyrightable work is "made for hire" in two situations:
1. When it is created by an employee within the scope of their employment.
2. When a certain type of work is created as a result of an express written agreement between the creator and a part specially ordering or commissioning it.
In addition, you must identify the party that owns the copyright in the work. Ordinarily, the author is the person or persons who actually created the work you intend to register. “Works made for hire” are an exception to this rule. For legal purposes, when a work is a “work made for hire,” the author is not the individual who actually created the work. Instead, the party that hired the individual is considered both the author and the copyright owner of the work.
“Scope of Employment”
For an employee’s work to be considered a work made for hire, the work must be created within the employee’s “scope of employment.” The Copyright Act does not define the terms “employee,” “employer,” or “scope of employment.” In its decision in Community for Creative Non-Violence v. Reed, the U.S. Supreme Court held that Congress intended these terms “to be understood in light of agency law,” which governs employer-employee relationships, and that the courts should rely “on the general common law of agency, rather than on the law of any particular [s]tate, to give meaning
to these terms.”
Questions you may need to consider include:
• What skill was required to create the work?
• Where was the work created? Did the hiring party provide the space, materials, or tools to create the work?
• How long was the relationship between the parties? Did the hiring party have the right to assign other projects besides the one under review? Could the hiring party direct the creator when and how long to work?
• How was the creator paid? Did the hiring party offer employee benefits? Did the hiring party remove taxes from the creator’s pay?
• Does the creator have his or her own business? Was the creator able to hire and pay assistants?
• Was the work created as part of the regular business hours of the hiring party? Was the work created pursuant to the creator’s usual tasks? Was the work created during the creator’s authorized work time?
Specially Ordered or Commissioned Works
A specially ordered or commissioned work is considered a work made for hire if it satisfies all of the
following four criteria:
1. The work must fall within one of the nine categories of works listed above that are eligible to be specially ordered or commissioned as works made for hire.
2. There must be a written agreement between the party that ordered or commissioned the work and individual(s) who actually created the work.
3. In the written agreement, the parties must expressly agree that the work is to be considered a work made for hire.
4. The agreement must be signed by all parties.
If a work fails to satisfy any of these requirements, it is not a work made for hire.
Copyright Term
The term of copyright protection in a work made for hire is 95 years from the date of publication or 120 years from the date of creation, which ever expires first.
Special note: The definition of "work for hire" in the above context, that which is aligned with the Copyright Act of 1976, applies to works created on or after January 1, 1978. For works created prior, see chapter 2100 of the Compendium of U.S. Copyright Office Practices.
Source: Works Made For Hire Circular 30 from Us Copyright Office
Copyright in a work vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.
A joint work is a work prepared by two or more authors. At the time of the joint work's creation, a joint work must have two or more authors, and:
1. each author must have made a substantial and valuable contribution to the work;
2. each author must have intended that his or her contribution be merged into inseparable or interdependent parts of a unitary whole; and
3. each author must have contributed material to the joint work which could have been independently copyrighted.
Each author of a joint work shares an undivided interest in the entire joint work. If you be a joint author in a work, then both or all parties must intended that their contribution to be merge as part of a whole. While, in the court of law, join authorship can be discerned according to three factors -
a. both/all parties exercised control over the work;
b. both/all parties actions showed they shared the intent to be co-authors when they were creating the work, for instance by publicly stating that the works was their shared project; and
c. the audience-appeal of the works depends on the contribution of each party so that the share of each party's contribution to the works' success cannot be appraised
- it is always best to have a written agreement stating the intent of having the copyright in the work to be jointly owned.
Each author of a joint work also "has the independent right to use or license the copyright subject only to a duty to account for any profits he or she earns from the licensing or use of the copyright." Ashton-Tate Corp., 916 F. 2nd at 522 (9th Cir. 1990). Accordingly, a joint copyright owner may not exclude other joint owners or persons who have a license from another joint owner.
In contributing material to the joint work that could have been independently copyrighted, each author's contribution should be entitled to copyright protection without the contributions by the other author[s].
A collective work is a compilation in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. The “authorship” in a collective work comes from the original selection, coordination, and arrangement of the independent works included in the collective work, and not the independent contributions to the collective work themselves.
Examples of collective works include:
• A newspaper, magazine, or other periodical containing multiple articles, illustrations,
and photographs
• An anthology containing multiple poems, short stories, or essays
• An online encyclopedia containing multiple articles, entries, or postings on various topics
• An album containing multiple sound recordings that embody multiple musical works
• A DVD containing a motion picture, theatrical trailers, deleted scenes, and audio commentary
from the director
A contribution to a collective work is a separate and independent work that is included within a collective work. A contribution to a collective work can be registered separately from the collective work or in combination with the collective work if certain requirements are met.
Examples of separate and independent works within a collective work include:
• An article within a periodical
• A song included on an album
• Separate articles and photographs that appear in a newspaper
In some cases, identifying or reaching out to the rightsholder of a work is either extremely difficult or impossible. These works, known as orphaned works, can be either published or unpublished. The rightsholder may be untraceable due to a lack of documentation at the time of creation (such as with many mid-20th century photographs), the death of the original owner without any known heirs, or a publisher going out of business, leaving the ownership of rights unclear. In other instances, the rightsholder’s identity may be known, but obtaining their contact information to request permission proves impossible. The reasons for this are varied, but the outcome is often the same: permission to use orphaned works cannot be obtained. Since the rightsholder cannot be identified, these works cannot legally be incorporated into archives, collections, or other contemporary projects, except within the scope of fair use. As a result, many public and non-profit organizations choose not to digitize these works, fearing potential legal action from a long-lost rightsholder.
Adapted from the Copyright Crash Course by Georgia Harper and Colleen Lyon.
The Constitution empowers Congress to secure copyrights “for limited times,” a vision of copyright that assumes protection for any given work will one day expire. As noted elsewhere in this guide, that day has been pushed farther and farther into the future over the last several decades, to the point that nothing has entered the public domain for many years. That changed, however, when works published in 1923 rose into the public domain in 2018. From then on, works from successive years began entering the public domain as their 95-year terms expired.
The duration of copyright is a complex subject. The chart linked to below, developed and maintained by Peter Hirtle and Cornell University, is the best handy reference for questions about specific works. Generally the most important things to know about copyright duration are:
To balance the rights granted to authors, the copyright law includes a series of limitations and exceptions that allow use of copyrighted works without permission in contexts where allowing rightsholder control would frustrate other important interests. Copyright protection is also limited in time and scope, so that some kinds of works, or aspects of works, are not protected at all. These provisions are explored in more detail in the section of the LibGuide on “Using Copyrighted Works,” but this overview will describe some of the aspects of the law that favor users.
