This article will cover the basics of copyright law – what a copyright is, why it is valuable, and how it is protected.
What is a Copyright?
A copyright is a type of intellectual property protection that applies to original works of authorship fixed in a tangible medium. Copyright is a legal term that encapsulates the rights that creators and authors have over their artistic and literary works. Put more simply, copyright protection applies to creative works that have been recorded in a tangible way, such as by writing, audio and/or video recording, or photographing.
The key criteria for copyright protection are that the work must be an original new work coming from the creator or author, must show a minimal amount of creativity, and must be fixed in a tangible medium of expression.
The U.S. Copyright Act defines a “work” as including literary works, choreography, films, music, computer programs and code, theatrical plays, sculptures, paintings, architecture, compilations such as bibliographies or summaries, and derivative works based off of other works.
The Copyright Act also provides that a work is fixed in a tangible medium when its “embodiment…is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” The keys are originality and fixation in a tangible medium. Notably, copyright protection does not apply to facts, common knowledge, or ideas.
How is a Copyright Valuable?
Copyright owners are afforded many exclusive rights to protect their works and to prevent others from copying or profiting from their original expression fixed in a tangible medium. A copyright owner has the exclusive right to make copies or reproductions of their work, prepare derivative works based upon the work (such as adapting a book into a screenplay), publish the work in print or in an electronic or digital format, and publicly perform, display, or exhibit the work.
These exclusive rights prevent others from pirating copyrighted works for their own benefit. On the flip side, these exclusive rights also empower the owner of a copyright in a work to obtain value by controlling how the work is reproduced and made available to the public for a price.
Additionally, a copyright owner can derive value from their copyright in a work by granting a temporary permission, called a license, or a permanent permission, called an assignment, for a price to others to have the right to use or own that copyright protected work. The fee for such a use and the nature of the extent of the rights granted are generally negotiated between the copyright owner and the permitted user of the copyright.
How is Copyright in a Work Protected?
A copyright in an original work exists as soon as it is fixed in a tangible medium. In other words, as soon as the ink dries on the paper, or the paint dries on the canvas, or the work is recorded as audio, video, or photography on a hard drive or on film, or the work is in any other way fixed in a tangible medium, copyright protection applies (again, assuming it is an original work).
Registration of a copyright is not required, since creation, rather than registration, triggers copyright protection. However, registration of a copyright helps to enforce the copyright. As long as the idea is out of the creator’s head and onto something, copyright protection arises.
How Long Does Copyright Protection Last?
Copyright duration varies from country to country because there is not a single international copyright law. Instead, each country has its own territorial copyright laws – meaning that copyright laws apply only within the territorial boundaries of their respective country.
This is why you may have seen pirated CDs or DVDs casually being sold outside of the US – our Copyright Act does not extend its application beyond our national borders. There is, however, an international copyright treaty, called the Berne Convention, with close to 200 member countries around the world.
The Berne Convention requires a minimum duration of a copyright to be the life of the creator or author plus fifty years. So, under Berne, copyright protection lasts, at a minimum, from creation (when an original work is fixed in a tangible medium), through the creator’s life, and for 50 years after the creator’s death.
The US and European Union countries go above and beyond the minimum duration required under Berne, however, with copyright duration lasting for the life of the creator or author plus 70 years after their death. These are the general rules for copyright duration, but certain works and circumstances could result in different duration. When a copyright in a work expires, that work enters the public domain available for all to use and copy.
What Happens When Copyrights Expire: The Gone with the Wind Example
When it comes to copyright in the United States, no work has engendered more controversy and legal hand wringing than Gone with the Wind, Margaret Mitchell’s 1936 novel about the iconic Scarlett O’Hara and the American South up to and through the Civil War. From parodies like The Wind Done Gone to the acclaimed film, the book and its characters have been hotly fought over. And while Gone with the Wind might be out of vogue now, given its subject matter, it is impossible to dispute that, as the second-bestselling book of all time (second only to the Bible), its immense popularity and enduring legacy remain despite being in the public domain since 2006 (70 years after its initial creation and copyright).
While some may argue that this lack of copyright protection might diminish the book’s value or hinder its potential for future adaptations or derivative works, others may argue that this opens the door for new and innovative interpretations of the story. Regardless of one’s personal stance on the matter, it is clear that the expiration of Gone with the Wind‘s copyright has major implications for the book’s legacy and future.
This article was written by Avisen Legal Law Clerk Javier Romay with commentary and Gone with the Wind references thrown in by Avisen founder Kim Lowe in the hopes of providing insight into the world of copyright.
