US copyright law is complex and often confusing. This article highlights some of the basics of US copyright law that every writer should understand, preferably BEFORE they get too far along in creating their manuscript.
Answers to FAQs
The following are among the most frequent answers I give to copyright questions.
- An original work has copyright protection once captured in a tangible medium such as a word processing file. Registration of a work with the US Copyright Office is a prerequisite before suing for copyright infringement in federal court.
- Titles, facts and ideas cannot be copyrighted, but direct quotes that contain facts and ideas may be copyrighted.
- Works with different publication dates may have different requirements for copyright protection and different durations of that protection due to changes in copyright laws over the years.
- Public domain works may be directly quoted without obtaining permission. Proper attribution still applies.
- In most cases, permission must be obtained from the copyright holder to directly quote a copyrighted work. It is not sufficient to just cite the source of a direct quote. Parodies are exceptions, as is fair use, which is discussed briefly below.
- The person who took the photograph is the copyright owner, not the person possessing the photograph.
- Just because something is on the Internet does not mean it is free to use without permission.
- Song titles are not copyrightable. Song lyrics under copyright protection may have multiple owners, each of whom may require a permission request.
- Copyright owners may specify several terms and conditions, including license fees and duration of the license, to use their protected content.
Exclusive rights of copyright owners
US copyright law conveys exclusive rights to the creators of original works, both published and unpublished, that are fixed in a tangible medium of expression.
US copyright laws prior to 1989 required a copyright notice, copyright registration, and copyright renewal within a specific timeframe. See my earlier comment about documentation of sources. Original works created in the United States after March 1, 1989 do not have to have to display a copyright notice, be published, or be registered with the US Copyright Office to be protected.
US copyright law conveys six exclusive rights to the owner of copyright. Copyright owners also have the right to authorize others to limited use of these exclusive rights through grants of permission or licenses.
These exclusive rights are as follows:
- Reproduce the work in copies or phonorecords;
Direct quotes or poorly paraphrased (substantially similar) versions of direct quotes basically are reproductions of someone else’s work. If that other work is copyrighted, permission usually must be obtained from the rights holder. Failure to do so could result in a copyright infringement lawsuit in federal court.
- Prepare derivative works based on the work;
While a work is under copyright protection, only the rights holder has the right to make derivative works or grant others permission to do so. A revision of a previously published work is a good example of a derivative work, as is a motion picture based on a novel. A discussion of derivative works and collections may be found in Circular 14 issued by the US Copyright Office.
COPYFRAUD – There is a common practice for some publishers and individuals to place a copyright notice in a public domain work they have republished. Sometimes these are blatantly false claims that are used to generate unjustified license fees.
ADDED CONTENT – Another common practice is to add an introduction or some other content to a public domain work and place a copyright notice on the copyright page. The more considerate approach is for the copyright notice to indicate which content is subject to the copyright claim. Clarification on a copyright claim might be found by searching registered claims on the US Copyright Office website. However, since claims do not have to be registered to be valid, failure to find a claim does not mean that the claim can be ignored.
- Distribute copies of the work to the public;
Only works in the public domain legally may be distributed without the rights holder’s permission. Federal laws specify when copyright duration has expired and works have lapsed into the public domain. The latest US copyright law defines copyright duration as the life of the author plus 70 years.
- Perform the work publicly;
Copyright protections are extended to the performance of dramatic works such as plays, screenplays, scripts, pantomimes, and choreographic works. Obtaining a license to quote from movies, television shows, plays, screenplays, and scripts and be a challenge.
- Display the work publicly;
Visual arts works such as two-dimensional and three-dimensional works of fine art, graphics, photographs, prints and art reproductions, maps, technical drawings and architectural works are protected by copyright laws. Authors frequently want to include photographs when they have no idea where they came from or who took them. The photographer is the copyright holder, not the person who possesses the photograph.
Works in the performing arts such as musical works with and without lyrics are protected by copyright laws, as are sound recordings, sounds that accompany motion pictures and other audiovisual works. Motion pictures, television shows, video games, other audiovisual works are also protected by copyright laws.
- Perform the work publicly by means of a digital audio transmission.
Only the copyright owner has the legal right to make a digital audio recording of works they have created. The recording of an audio book is one obvious example that comes to mind. Another example that may be less obvious is the recording of an audiovisual presentation.
Things not protected by copyright
Public domain is defined in US copyright law as works that either have had their copyright protections expire (See duration of copyright.), a copyright that was not renewed when it was supposed to be renewed under a previous copyright law, or a work that never qualified for copyright protection.
Procedures, methods, concepts, processes, discoveries, or “mere” lists of ingredients or contents cannot be copyrighted.
Titles cannot be copyrighted. The title of your book cannot be copyrighted. By the same token, you may use the title of a song or another book in your book without needing to get permission but watch out for trademarks.
Ideas cannot be copyrighted, but the expression of an idea can be under copyright protection. And the protection goes beyond direct quotes and close paraphrasing. Court cases have decided copyright infringement cases based in part on the substantial similarities between the elements in well-known works and new publications.
Pseudonyms cannot be protected under copyright law. See Circular 32 from the US Copyright Office for more information.
Federal government works created by federal government employees as part of their official duties are not copyrighted. Works created by state governments may or may not be under copyright protection.
Trademarks and patents are not copyright issues, but other laws govern their uses.
Names of famous persons cannot be copyrighted but may have trademark protections and rights of privacy. Also be careful about using photographs of famous persons because you could be sued for unauthorized commercial use of their likeness.
Potholes, sink holes & black holes
There are three areas that deserve cautionary comments for authors to consider: fair use, verbal agreements and contracts, and works-made-for-hire.
Fair use is not something to be used casually to avoid the time and expense of getting permission because a fair use claimmay ultimately be decided by a judge in federal court. A judgement of copyright infringement may come with stiff financial penalties, plus attorney fees and court costs. Traditional publishers, hybrid publishers, and print-on-demand companies often have fair use policies based on how much risk they will accept. Ask for the policies in writing rather than assume what they are. Some will have a zero tolerance for fair use.
Verbal agreements and contracts are not a good idea. Period. Get agreements in writing BEFORE work starts.
Works-made-for-hire has serious implications for who owns the copyright of pieces of a work done by outside providers, book illustrations for example. The US Copyright Office Circular 9 specifically addresses works-made-for-hire. Detailed descriptions of work to be accomplished by an outside party should be set in writing and signed by contracting parties BEFORE it starts.
I’ll conclude where I started. US copyright law is complex and often confusing. The goal is be compliant with copyright laws, to respect the rights of others, and protect our own rights. The use of other people’s content is an area where I recommend asking permission instead of seeking forgiveness because forgiveness can come at a high price.