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Module Five | Introduction to Copyright: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | next >

Quick note- a more current version of this site and copyright article exists at

What is Copyright?

Comic Strip
© Michael Chrien, used with permission

Copyright law in the United States is encoded in the Copyright Act, United States Code Title 17.

Copyright, as we discussed previously, gives creators some exclusive rights. In order to be eligible for copyright protection, the creation
-has to be original to the creator. The creator can't claim copyright on someone else's work.
-has to be creative. Facts, for example, cannot be copyrighted.
-has to be fixed in a tangible medium (which includes digital media). Ideas cannot be copyrighted, but the tangible expression of these ideas is copyrighted. This is often referred to as the idea/expression dichotomy.

Works not protected by copyright are often in the public domain. These include copyrighted works in which the copyright has expired, some government created works, things expressly put in the public domain, and may include any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work" (17 USC § 102b). Note, though, that some of those could be protected by other forms of intellectual property law. Processes, for example, can be protected by patents.

If the work meets the criteria necessary for copyright protection, the creator has exclusive rights to several activities related to the work. These activities include:
-reproduction. Only the creator can authorize that copies of his/her work be made and authorize the distribution and publication of copies.
-derivative works. A derivative work is a work that is based on the initial work, and uses copyrighted material in its creation.
-public performance. Only the creator can authorize that a work can be performed, like in music and theater.
-public display. Only the creator can authorize the public display of their work, such as graphic or sculptural works.

If a person performs one of the activities that is the exclusive right of the author, then the person is infringing on the author's copyright. Besides this type of direct copyright infringement, people can also get in trouble for helping another person infringe. First, there is contributory infringement, when someone has "materially contributed" to another person's direct infringement (they've helped the infringer in some way). Another is vicarious liability, when a person benefits financially from another person's infringement, and could have stopped that infringement from occurring in the first place.

Say, for example, that Person A is copying software without permission or a license to copy the software, and wants to distribute the software over the Internet. Person B decided to make a web site for Person A to make the software files available. Person C is the one who provides Person B space, and decides to put advertising on the site to make some money. In these cases, Person A would be a direct infringer, Person B would be a contributory infringer, and Person C would be vicariously liable.

Copyright protection has been automatic since 1978. That is, since 1978 you haven't needed to register your work with the Copyright Office to be protected. Due to the US joining the international copyright treaty known as the Berne Convention, since 1989 you no longer need to place a copyright symbol (©) on your work. Currently, as soon as the work is created and in fixed form, it is protected by copyright. Although you don't need the © notice or to register your creation with the Copyright Office to be protected, those activities can help you. Registration, for example, is necessary before filing a copyright infringement lawsuit.

As you might suspect, there are some interesting problems in even day-to-day creations of works. We'll talk about a few common questions about copyright.

Happy Birthday

Ever wonder why restaurants nowadays make up their own songs to sing and embarrass patrons instead of just singing "Happy Birthday?" Well, one reason is that "Happy Birthday to You" is copyrighted, and singing the song in public would be a performance and copyright infringement. The melody to "Happy Birthday to You" was published in 1893 as a song called "Good Morning to All" (and so now is in the public domain). The words to "Happy Birthday to You" with that melody, however, weren't published until the 1920s. After several sales and transfer to copyright, the copyright is now owned by America Online, who receives about two million dollars in royalties from the song annually. Due to various copyright extension acts, Happy Birthday to You won't be in the public domain until 2030. (The story is a bit more complicated than this short version, but this is the gist of it.)

Earlier this year, some people put up the following website with more information and instructions on how to stop all of those darned copyright infringers who sing happy birthday in public:

Module Five | Introduction to Copyright: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | next >