Copyright Basics Rick Morris, J.D., LL.M Attorney-at-law Assistant Professor Northwestern University

Definition of Copyright Copyright arises when a work of authorship in any tangible medium of expression is fixed in a tangible form. This can be by writing, recording, digital storage or other means. Ideas, procedures, processes, systems, methods of operations, etc. are not copyrightable. 17 U.S.C.S § 102.

Requirement of Fixation In order to be copyrighted, lecture or presentation must be fixed in a tangible form. This would usually happen via recording, preparation of lecture notes, etc.

Ideas are not Copyrightable Ideas are not copyrightable; however, expressions of ideas are copyrightable. For example, the idea that a medical procedure might be effective is not subject to copyright. However, the lectures, medical journal articles, and other communications explaining the procedure are copyrightable. Procedures, processes, systems, etc., to the extent that they meet the legal requirements, may be patentable.

The Rights of a Copyright Owner Once something is “copyrighted,” what rights does a copyright owner have?

The Five “Grand Rights” Of Copyright § 106 Exclusive Rights in Copyrighted works Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize rights to do and to authorize any of the following: (summarized) (1) make copies of the copyrighted work (2) to prepare derivative works based upon the copyrighted work; (3) to distribute the copies of the copyrighted work to the public by the sale or other transfer of ownership, or by rental, lease, etc. (4) to perform the copyrighted work publicly; and (5) to display the copyrighted work publicly. 17U.S.C.S §106.

Derivative Works One statutory definition that may be important for your consideration is the definition of a “derivative work.” Section 101 of the Act defines a derivative work as:

Definition of a Derivative Work …a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'.

Limitations on Copyright There are a number of limitations on copyright, including provisions for libraries, for direct classroom teaching by a nonprofit educational institution, for cable companies under limited circumstances, for ephemeral recordings, etc. An important limitation for your consideration is Section 107, Fair Use.

§ 107 Limitations on exclusive rights: Fair use Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include -

The Four Factors of Fair Use 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work

Horgan v. Macmillian, Inc., 789 F.2d 157 (2d Cir. 1986) The plaintiff was the estate of George Balanchine, the co-founder of the New York City Ballet in 1948 and the creator of a version of The Nutcracker that became famous as the "Balanchine Nutcracker." Macmillian had the right from the New York City Ballet to take pictures of the Ballet and publish them in a book. They used 60 pictures of the ballet. Infringement was found even though the number of pictures was fairly small and the medium was different (live dance vs. book).

Los Angeles New Service v. KCAL Channel 9, 108 F.3 rd 1119 (9 th Cir. 1997) The court held that use of the Reginald Denny beating tape by KCAL was not fair use despite the intense newsworthiness of the story.

Pacific & Southern Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984). Pacific and Southern Co. (WXIA-TV) sued Carol Duncan (doing business as TV News Clips) for infringing on its copyrights by videotaping its news broadcasts and selling tapes to the subjects of the reports. TV News Clips claimed fair use of the material. The appeals court held that the service was not a fair use because the use was for commercial reasons.

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) In an opinion by Justice O'Connor, the court held as not a fair use, the excerpt of only 300 words from the autobiography of Gerald Ford The Nation magazine used part of the book, the most important part, containing Ford’s thoughts when he pardoned Nixon. The Court found that The Nation had used, for blatant commercial purposes, important original thoughts of the author, and this use had a tangible effect on the market for the original and the defendant's claim of fair use was not allowed.

Los Angeles Times v. Free Republic, CV MMM (Dist. L.A. 1999) U.S. District Court held that the fair use doctrine does not protect wholesale copying of newspaper article on the Internet, even if the website in question is used for public comment on the articles.

Some Methods for Non-infringing Use A person may use material 1) If it is not copyrighted (ie: has fallen into the public domain, or is a government publication), 2) If they receive the consent of the copyright holder, the permission can be free or by negotiation of a fee. 3) If they find an exception for their use in the Copyright Act (Fair Use, others). 4) If they pay an agent of the copyright holder (performing rights societies, others).