Copyright chapter excerpt from Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets

Copyright chapter excerpt from Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets

 © 2011, 214, 2017 Victor D. López  -- All Rights Reserved

Chapter 2: General Introduction to Copyright Law

Introduction

            The U.S. Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1] Congress exercised this right in passing the Copyright Act of 1790 which was signed into law by President George Washington on May 31, 1790. The Act was brief, which fit on a half-page of a newspaper,[2] provided to citizens of the United States protection for maps, charts, and books they authored for a period of 14 years that was renewable for an additional 14-year period. The Copyright Act has been amended numerous times in the intervening years and grown in both complexity and size. The current version of the Act[3] as of this writing is 266 pages not counting 12 appendices.

            Although the law has grown in complexity since the first Copyright Act, the core concepts relating to copyright are still relatively simple to understand. In this chapter, we will examine the essential elements of the law and the specific types of intellectual property it is intended to protect.

Subject Matter of Copyright

The subject matter covered by the law of copyright is rather broad and includes “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[4] Works of authorship include the following categories: [5]

(1)   literary works;

(2)   musical works, including any accompanying words;

(3)   dramatic works, including any accompanying music;

(4)   pantomimes and choreographic works;

(5)   pictorial, graphic, and sculptural works;

(6)   motion pictures and other audiovisual works;

(7)   sound recordings; and

(8)   architectural works.

            Copyright protection attaches to original works of authorship fixed in a permanent medium. Note that an original work of authorship is not protected as soon as it is created; rather protection attaches when it is fixed onto a permanent medium so that it can be reproduced and perceived by others at a later time. It is not the act of creation but rather the act of saving or archiving one’s creation in a tangible medium that grants copyright protection to the creator. For example, if a poet constructs a new poem and speaks it aloud, no copyright attaches to this new creation. It is only when the work is fixed in an existing or yet to be invented “tangible medium of expression” that can cause it to be reproduced and perceived by others later. Writing the poem on paper with a pen or pencil will suffice, as would recording a reading of the poem on tape or in digital form saved as an audio or video file on a computer, compact disk or DVD. Likewise, a new dance that is created by a choreographer is not copyrighted until it is “saved” in some form such as by being videotaped or by the choreographer writing down the steps in the dance on paper or some other permanent form through which the dance steps could later be communicated by others. Thus, a photographer who snaps a photograph automatically obtains a copyright to it when the image is captured on film or saved in digital form to the camera’s internal memory, or in an external SD card or other removable storage. And a writer’s words are copyrighted as soon as they are transferred to paper by a pen or other writing implement, or saved onto a computer’s hard disk or removable storage (e.g., burned onto a CD or DVD or saved onto a USB thumb drive or other removable storage media).

Exclusive Rights in Copyrighted Works

            The owner of a copyright has the exclusive right to do (and to authorize others to do) all of the following with regard to the work protected by the copyright:

[***** END OF PREVIEW*****]

---

[1] U.S. Const. Art I §8.

[2] The Columbian Sentinel, July 17 1790 at 1. A digitized version of the newspaper page can be viewed at http://www.earlyamerica.com/earlyamerica/firsts/copyright/centinel.html (last visited August 11, 2009)

[3] The current Act is contained in Title 17 of the U.S. Code and includes amendments through 2006.

[4] 17 U.S.C. §102(a) (2006).

[5] Id.