Introduction to Copyright Rights and Licenses
Sep 03, 2023 | Law Student Blog,
By John Lee, University of Arkansas graduate and prospective law student for entering Class of 2024
Most creatives have a basic familiarity with the concept of copyrights. Even so, the world of copyright can sometimes feel like a mystical maze for those trying to figure out what rights they have in their works, or what rights they need to acquire to use other’s work. While copyright has certainly earned this perspective from both the general public and creatives alike, the goal of this article is to demystify the copyright system and provide a comprehensive introduction to the rights granted by copyright as well as an introduction to the purpose of copyright licenses.
History of U.S. Copyright Law
While the basic concept of a copyright dates back centuries, the first copyright statute was the British Statute of Anne of 1710. This law provided authors of books exclusive rights to their contents for two 14-year periods. The rationale at the time was that by providing these exclusive rights, it would encourage more books to be written and thus encourage the advancement of learning. This basic rationale has informed copyright laws ever since: by providing a financial incentive to create books, shows, music, art, etc. for a certain length of time, society is able to reap the benefits from the advancement of these creative and intellectual endeavors. When the United States passed its first copyright statute – the Copyright Act of 1790 – into law, it closely mirrored the Statute of Anne. The original law protected books, maps, and charts for two 14-year terms, totaling 28-years of potential copyright protection.
Over the course of the next two centuries, U.S. copyright law would receive four general revisions that greatly expanded the scope of copyright protection as well as the length creators would be entitled to such protections. The first general revision came in 1831, which added musical compositions to the list of copyrightable works and increased the first term of protection to 28 years. Now creators could obtain a total of 42 years of protection for their works. The second general revision of U.S. copyright law occurred in 1870, and in addition to expanding copyrights to include the exclusive right to the creation of derivative works (works that are based on one or more already existing works), this revision designated the Library of Congress as the overseer of copyright registration, deposit, and recordation. This revision of 1870 also created the official indexing of copyright registrations. In 1909, President Theodore Roosevelt signed the third general revision of U.S. copyright into law with the 1909 Copyright Act. This modification once again extended the maximum potential term of protection– to 56 years– consisting of two 28-year terms, while broadening the subject matter of copyright protection.
The fourth, and most recent, general revision to U.S. copyright law was signed into law by President Gerald Ford in 1976. The Copyright Act of 1976 still provides the basic framework for current copyright law in the U.S. The Act extended federal protections to all works, both published and unpublished, from the moment they are fixed in a tangible form. It also generally created copyright protections for more than the life of the author of new works instead of the previous multi-year terms. The maximum term established by the Copyright Act of 1976, which applied to all works created on or after January 1, 1978, was the life of the author plus 50 years. This was the first time copyright protection was automatically granted for the maximum term, eliminating the renewal requirement for new works. The rationale for extending the term was two-fold. The first reason was one of practicality: by setting the term of protection a predetermined number of years after the author’s death, the entire catalog of an author created from 1978 on would enter the public domain at the same time. The second reason was due to the enormous economic potential that works had. With the expansion of modern communications technologies, works had the potential of generating huge financial benefits for their creators even long after their initial creation and release. Extending the term of protection ensured that creators would reap the full financial benefits of their works during their lifetimes and continue providing their heirs with those benefits for some time. In addition to extending the maximum term for new works, the act also extended the renewal term for older works to 47 years, increasing the maximum term for these older works to 75 years.
While the Copyright Act of 1976 provides the basic framework for current copyright law, copyright protection terms are now determined by the Sonny Bono Copyright Term Extension Act of 1998. This Act amended the rules determining the length of time creators would have protections for their work, and any work currently in its renewal term gained protection for 95 years from its original publication. This meant that works first published after 1923 were granted this maximum term of 95 years, as long as they were properly renewed for their second terms under the 1909 Copyright Act. It also extended the maximum term for works created on or after January 1st, 1978 (under the Copyright Act of 1976) to the life of the author plus 70 years. These two maximum terms – 95 years from publication for works created before January 1st, 1978, and the life of the author plus 70 years for works created on or after January 1st, 1978, apply to nearly all works currently under copyright protection in the U.S. In addition, this Act extended the copyright term for works of corporate authorship to 95 years from publication or 120 years after creation, whichever ends earlier.
What Works Get Copyright Protection?
For a work to gain copyright protection, it must meet two basic requirements: (1) it is an original work, and (2) it is fixed in a tangible form. The originality requirement is in place to ensure that authors of works are actually contributing something creative and new in their work rather than simply copying existing works. The bar to pass this requirement is low and there is no assessment of the quality of the work. There are, however, certain things that have been determined to not qualify as “creative” in the eyes of copyright law. These include titles, names, short phrases, and slogans; familiar symbols or designs; variations in typography, coloring, or lettering; listings of ingredients or contents, and more. The boundaries for some of these can be fuzzy, so always consult a lawyer when trying to determine whether something you have created falls into these categories.
The requirement that works be fixed in a tangible form demonstrates an important fact about copyright: copyright protects expression– not ideas, methods, concepts, principles, or processes. For a work to be fixed in a tangible form, it needs only to be captured in a semi-permanent form such as being written down or recorded. As long as it can be perceived, reproduced, and communicated for more than a short time, it should pass this requirement.
What are the Specific Rights Granted with a Copyright?
When a work is granted copyright protection, its author receives six basic exclusive rights. These rights are to:
Reproduce the work in copies or phonorecords. This means that authors have the exclusive right to create copies of their works. What qualifies as a reproduction of a work depends somewhat on the form of the work. For visually based works such as paintings, books, and poems, this means creating exact copies of the original work, even if tertiary parts change slightly (e.g., things like the cover picture before the text of the book begins or the frame the copy of the painting is situated in). For musical compositions, this can mean creating exact copies of a specific master recording or re-recording the composition even if the instrumentation changes slightly. Importantly, this right applies to copying portions of the work as well as the work in its entirety.
Prepare derivative works based on the work. Derivative works are new works based on the original work. This could mean a book or movie sequel using the same characters and setting, or even a motion picture adaptation of a book. It could also mean a translation of a poem or a new arrangement of a composition. There are many forms that a derivative work can take, but they usually involve some form of transformation being applied to the original work.
Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending. Just as authors are given the right to create copies of their works, they are also given the exclusive right to distribute those copies for financial gain.
Perform the work publicly. For literary works, musical works, dramatic works, choreographic works, pantomimes, motion pictures, and audiovisual works, authors are given the exclusive right to perform these works in public. A performance is considered to be public when it is located somewhere open to the public, located in a place accessible by a substantial number of people outside a familial or social circle, or if it is being transmitted to multiple locations at once. Thus, renting a movie and having a watch party with friends and family at one’s private property is not considered a public performance, but showing the same rented movie in a public park would be.
Display the work publicly. This right is very similar to the previous one in definition; however, it applies to slightly different types of works. The exclusive right to display a work applies to literary works, musical works, dramatic works, choreographic works, pantomimes, pictorial works, graphical works, sculptural works, and stills (individual images) from motion pictures and audiovisual works.
Reproduce the work in copies or phonorecords. This means that authors have the exclusive right to create copies of their works. What qualifies as a reproduction of a work depends somewhat on the form of the work. For visually based works such as paintings, books, and poems, this means creating exact copies of the original work, even if tertiary parts change slightly (e.g., things like the cover picture before the text of the book begins or the frame the copy of the painting is situated in). For musical compositions, this can mean creating exact copies of a specific master recording or re-recording the composition even if the instrumentation changes slightly. Importantly, this right applies to copying portions of the work as well as the work in its entirety.
Prepare derivative works based on the work. Derivative works are new works based on the original work. This could mean a book or movie sequel using the same characters and setting, or even a motion picture adaptation of a book. It could also mean a translation of a poem or a new arrangement of a composition. There are many forms that a derivative work can take, but they usually involve some form of transformation being applied to the original work.
Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending. Just as authors are given the right to create copies of their works, they are also given the exclusive right to distribute those copies for financial gain.
Perform the work publicly. For literary works, musical works, dramatic works, choreographic works, pantomimes, motion pictures, and audiovisual works, authors are given the exclusive right to perform these works in public. A performance is considered to be public when it is located somewhere open to the public, located in a place accessible by a substantial number of people outside a familial or social circle, or if it is being transmitted to multiple locations at once. Thus, renting a movie and having a watch party with friends and family at one’s private property is not considered a public performance, but showing the same rented movie in a public park would be.
Display the work publicly. This right is very similar to the previous one in definition; however, it applies to slightly different types of works. The exclusive right to display a work applies to literary works, musical works, dramatic works, choreographic works, pantomimes, pictorial works, graphical works, sculptural works, and stills (individual images) from motion pictures and audiovisual works.
Perform the work publicly by means of a digital audio transmission. This last right applies only to works that are sound recordings.
What Are Copyright Licenses?
Copyright licenses exist as a way for authors and creators to control the use and distribution of their work. Where copyright protection provides creators with the exclusive rights mentioned above, licenses allow those same creators to temporarily grant others these rights, often in exchange for a fee. Licenses are usually highly specific about which uses of a work are allowed – the more ways a work can be used, typically the more expensive the license. The terminology used in these licenses is typically industry-specific, though they mostly exist for the core functions of controlling use and providing creators a way of financially leveraging their exclusive rights.
Conclusion
Copyright protections play an important role in our society. By providing creators exclusive rights over their work for a time, copyright laws in the U.S. allow for the rich cultivation of the arts throughout society. And with copyright licenses, these authors have ways of controlling and leveraging these rights to not only build a sustainable career, but also leave their loved ones with the financial benefits of their creativity for some time. Having a basic understanding of the rights creators are granted, how those rights can be leveraged, and the total length of time creators and their heirs have those rights, is essential for creators and those who want to use their works.
Our summer associate program is supported by:
