Copyright Basics FAQ
Copyright Basics FAQs are ubiquitous on the web. There are many excellent ones easily found. Some, however, sound better than they actually are, so for the sake of accuracy, here is mine.
2. What can be copyrighted? What cannot?
3. Can you copyright a fact or an idea? How about a name, title, or short phrase?
5. How do I copyright my work?
6. How do I register my copyright? How much does it cost?
7. Does a work have to be published to be copyrighted? What about unpublished works?
8. What is the copyright notice and what if it's not on the work?
9. How long does a copyright last?
10. If I mail my work to myself, is that as good as a registration?
11. What are the rights of the copyright holder?
12. What is the public domain? Is it the same as a public record?
13. What does "all rights reserved" mean and when would you use it?
14. If a public domain work is republished, does the copyright begin over? If it doesn't, how can the publisher put a copyright at the front of the book and warn that no part of the work can be used without permission?
15. If a public domain work isn't "republished" per se but instead migrated to a more "modern" format, does the copyright restart? Would the entity migrating the work be allowed to put their copyright notice on the work in the new format?
16. If a work is out of print, does that mean it is out of copyright?
A copyright is a form of intellectual property protection, arising from the Constitutional mandate that there must be some sort of limited monopoly for authors and creators in order to further the purpose of promoting the progress of science and the useful arts. Copyright law, therefore, attempts to strike a delicate balance between the interests of the creators and the interests of the public in accessing and using their work.
2. What can be copyrighted? What cannot?
Copyright protection extends to all original works of authorship, including literary, musical, dramatic, pictorial, graphic, sculptural, sound recordings, and motion pictures and other audiovisual works. However, you cannot copyright works created by federal government employees created within the scope of their federal government employment.
3. Can you copyright a fact or an idea? How about a name, title, or short phrase?
No, facts and ideas are not copyrightable - only the particular original expression of a fact or an idea is copyrighted. So, for example, if you have some sort of database that is comprised entirely of facts, can someone just take the whole thing? No, not if there is some degree of originality in your selection, arrangement, and organization of the facts - then you would have what is known as a compilation copyright; a copyright in the database as a whole. However, individual facts could be used from your work without having to consult you.
Ordinarily not. Copyright protection does not extend to processes or methods of operation. The ordinary recipe is simply a list of materials and a method or process of putting them together. If a recipe contained some sort of unique or original expressions within it, it could conceivably qualify for copyright protection.
5. How do I copyright my work?
It's really easy because it happens automatically. As soon as your original work is fixed in a tangible medium of expression, it is automatically fully protected by copyright. There are just two requirements: originality and fixation. So we are all copyright owners - our vacation movies and photos, letters and emails we write, drawings and so on. How about an extemporaneous speech made out on the brickyard? Or more commonly asked, how about MLK's "I Have A Dream" speech? It all depends on whether or not it was "fixed" - written down, recorded, fixed. Then it is copyrighted.
6. How do I register my copyright? How much does it cost?
It costs a minimal amount to register your copyright which you do by filling out certain forms with the US Copyright Office. The forms with instructions are all online. The better question is why would you register your copyright if your work is already fully protected? Registering your work in a timely fashion (within three months of publication or before the infringement occurs) entitles you to ask a court for statutory damages (a set figure) rather than having to prove actual damages. It's a good idea if you are serious about pursuing infringers.
7. Does a work have to be published to be copyrighted? What about unpublished works?
No, unpublished works are fully protected (in some ways, more protected, at least as to first publication rights) by copyright. That would mean, for example, that an old published letter may have long ago entered the public domain, while an unpublished letter of the same vintage might still enjoy copyright protection. However, a provision in the 1976 Copyright Act, provides that, beginning December of 2002, unpublished works will enter the public domain as soon as their creator has been deceased for seventy years.
8. What is the copyright notice and what if it's not on the work?
The copyright notice is familiar to us all: © date, name. Contrary to public opinion, the copyright notice is no longer required for works created after March 1, 1989. (this means that works found without the notice are probably still copyrighted; do not assume they are in the public domain) You may place a copyright notice on your work, if you like, and you do not need to register or otherwise ask permission. This is helpful to others viewing your work to know who to contact, if they need to and eliminates an infringer's defense of innocent infringement ("I didn't know I was infringing!")
9. How long does a copyright last?
According to the Constitution, it's supposed to last a "limited time" but that limited time has grown over the years to a healthy chunk. As of our last Copyright Term Extension Act in 1998, the term of copyright is now the life of the author plus seventy (70) years. If it an anonymous work or a work that belongs to a company, for example, the term is ninety-five (95) years from publication or one hundred twenty (120) years from creation, whichever is shorter. Suffice to say, long, long time.
10. If I mail my work to myself, is that as good as a registration?
This practice, often referred to as a "poor man's copyright" is really not very effective and is no substitute for actually registering your work with the Copyright Office.
11. What are the rights of the copyright holder?
The copyright holder possesses six exclusive rights with respect to his/her work:
(1) the right to reproduce it,
(2) the right to prepare derivative works based on it,
(3) the right to distribute it (or copies of it),
(4) the right to perform it publicly, and
(5) the right to display it publicly.
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
12. What is the public domain? Is it the same as a public record?
Works in the 'public domain' may be freely used without any copyright issues. This category includes:
1. Works with expired or lost copyright;
2. Works not copyrightable by nature i.e. ideas, facts, titles, etc.;
3. Works produced by a federal government employee in the course of his/her job;
4. Works clearly donated to the public domain (Note: Placing a copyrighted work on the internet does NOT inject it into the public domain).
Generally speaking, works published before 1923 in the U.S. are in the public domain.
The public domain is NOT the same as a public record.
13. What does "all rights reserved" mean and when would you use it?
How about nothing and never? Actually, the phrase "All Rights Reserved" used to be required in some nations but is now not legally needed most places. In some countries it may help preserve some of the "moral rights."(from 10 Big Myths About Copyright Explained)
14. If a public domain work is republished, does the copyright begin over? If it doesn't, how can the publisher put a copyright at the front of the book and warn that no part of the work can be used without permission?
No. Republishing a public domain work does not restart the copyright. However, anything new that is added, like a new cover, foreward, commentary, etc., would be copyrighted. As to the second question, I have no printable idea why this misleading practice is so commonplace. It pays to know your copyright law.
15. If a public domain work isn't "republished" per se but instead migrated to a more "modern" format, does the copyright restart? Would the entity migrating the work be allowed to put their copyright notice on the work in the new format?
That's an interesting question and I have seen some put their copyright notice on the migrated or restored work and some that do not. The issue is whether you have merely copied the work or whether you have added sufficient originality to trigger a new work. Case law [Bridgeman Art Library, Ltd. v. Corel Copr., 36 F.Supp.2d 191 (S.D.N.Y. 1999) ] held that exact photographic copies of public domain works of art were not copyrightable under US law because they were not original.
16. If a work is out of print, does that mean it is out of copyright?
No, "out of print" is not the same as "out of copyright" or an expired copyright. An out of print work may still be protected by copyright and should be approached the same as a work still in print.
© Peggy Hoon, 2010, 2015