Dear Straight Dope:
I am somewhat confused in regards to how exactly copyright law applies to works of art. For example, how did Andy Warhol create his paintings of Campbell's soup cans and sell them without facing legal action? It'd be great if you could clear this up for me.
SDStaff Gfactor and guest contributor acsenray reply:
Copyright is complicated but well worth discussing in the age of the Internet. We’ll tackle the subject in four parts. First we’ll outline the history of copyright and describe the concept in general terms. In the second part we’ll discuss the much-misunderstood “fair use” doctrine. In the third we’ll describe the penalties for copyright infringement. In the final part we’ll discuss some other legal protections for intellectual property.
Not everybody who speaks of copyright knows what they’re talking about. Here’s the basic rule: Copying is illegal. The work’s author owns the exclusive right to make copies or allow others to do so.
According to the U.S. Copyright Office: “Copyright is a form of protection provided by the laws of the United States … to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.”
The concept of copyright has evolved in parallel with the development of publishing technology. Before the introduction of the printing press, around 1450, little thought was given to authors’ rights. But when printing became available, two things happened. According to J.A.L. Sterling in World Copyright (2d ed., 2003), the first was that “state authorities became aware that unacceptable material could easily be made available to the public.” Second, “printing industries sprang up, employing large numbers of persons, and making an important contribution to the local economy.” According to Sterling, “Within a few years after the introduction of printing, European states began to adopt legal measures to deal with both these consequences. The simplest way to control the distribution of printed material, and protect local printing industries against piracy and foreign import, was to introduce control of the printing presses[.]” Commonly the state declared a monopoly on printing, claiming it had the power to grant printing privileges. Privileges were granted by decrees which specified which individuals were authorized to print and sell what books. In other words, the first copyrights were literally copying rights held by printers. Lacking such a right, they weren’t allowed to print anything.
The first publishing decree, Sterling says, was issued by the state councillors of Venice to Johannes of Speyer in September 1469. Speyer held the exclusive right to print in the republic until 1486, when Marc Anthony Sablico was granted the right to authorize the printing one of his own works. This is the first recorded example of a formal grant of rights to an author rather than a printer.
Printers soon formed guilds, and the guilds made sure only their members got printing privileges. The Stationers’ Company in England was formed in 1403 and got a royal charter in 1557 that put the guild in charge of copyrights.
The performance of plays and other dramatic works was also regulated. Theaters were “subject to rigorous control by the state authorities,” according to Sterling.
By the seventeenth century scholars were debating authors’ rights. Some said authors should have the right to control the copying and public performance of their works, but this notion made little headway until political turmoil in England led to a new system. Concerned that existing common-law protections did little to prevent unauthorized publication, the Stationers petitioned Parliament, and some well-known authors and philosophers joined them. The result was 8 Anne c.19, the so-called Statute of Anne, which is generally recognized as the first copyright act.
The act was revolutionary because it made the author the original owner of the right to publish. The printer had to buy the rights from the author.
U.S. copyright law is based on this idea. Twelve of the thirteen original states had laws protecting authors’ rights before the Constitution was ratified in 1789. The Constitution gave Congress the exclusive power to “promote the Progress of … useful Arts, by securing for limited Times to Authors … the exclusive Right to their respective Writings[.]” The 1790 Copyright Act did just that, and the protection of authors’ rights has been a federal responsibility ever since.
That brings us to modern-day copyright law. Let’s take a look at the Copyright Act, adopted in 1976. It says copyright protection attaches to “original works of authorship fixed in any tangible medium of expression[.]” Copyright commences when the work is created, and the Copyright Act tells us that “a work is created when it is fixed in a copy or phonorecord for the first time.”
OK, but what exactly is copyright?
Once a work is created, its author owns a package of exclusive rights:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
See where we’re going with this? The Copyright Act gives all rights to copy, perform, and modify the work to the author, not to you.
There are a few other rights in there, too. First, the Copyright Act gives authors the right of attribution – that is, the right to claim authorship of works they have created, and to prevent others from attributing to them works they didn’t create. It also gives authors the right to prevent attribution if the work has been altered in ways they don’t approve of. Finally, it gives authors the right to prevent mutilation, modification, distortion or destruction of certain works. This is an exception to a rule called the “first sale doctrine.” The first sale doctrine permits the owner of a particular physical copy of a work (a book, a record album, a photograph, or whatever) to sell that copy, give it away, bury it in the back yard, or even destroy it. The first sale doctrine only applies to the actual copy owned. As Cecil has pointed out, ownership of a copy doesn’t entitle the owner to make more copies. For example, if you send me a letter, I can show it to people or sell it, or even burn it for that matter, but I can’t publish a copy on a website or in a book without your permission.
Of course, copyright doesn’t cover everything. According to the Copyright Office:
Several categories of material are generally not eligible for federal copyright protection. These include among others:
Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
To clarify, copyright doesn’t protect facts – they aren’t original, although the way they are presented can be original enough to be protected. For example, in Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the U.S. Supreme Court held that Rural Telephone’s white pages directory was not protected by copyright. Justice O’Connor explained:
This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that “[n]o author may copyright his ideas or the facts he narrates.” Rural wisely concedes this point, noting in its brief that “[f]acts and discoveries, of course, are not themselves subject to copyright protection.” At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976.
There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data – i.e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.
Justice O’Connor resolved the conflict by recognizing that originality is the “sine qua non of copyright.” She reasoned that “original” means that the author independently created the work (he didn’t just copy it from somewhere else) and it involves some minimal degree of creativity. She stressed that “even a slight amount [of creativity] will suffice.” While she recognized that merely discovering a fact did not make it original, she noted that compilations were a special case: “choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original[.]” But she stressed that only the original parts were protected. Facts are free for the taking; it’s only the selection and presentation that are protected.
Also, the Copyright Office notes, certain works that aren’t “fixed,” i.e., embodied in physical form, aren’t protected. For example, lectures that aren’t simultaneously recorded or otherwise fixed by the author aren’t protected by copyright. This rule doesn’t apply to musical performances; section 1101 prohibits bootlegging of live music. Under previous copyright regimes, state law protected unpublished works because federal copyright only protected published works. Now that fixation is the crucial moment, older state law protections have been preempted.
Another limitation of copyright is the idea/expression dichotomy. Copyright doesn’t protect ideas, only their expression. The “merger doctrine” recognizes that some ideas can only be expressed a few ways. In other words, the idea is inseparable from (i.e., merges with) its expression. In such cases, a work may have no protection.
Works of the federal government are excluded from copyright protection under 17 U.S.C. §105. State government works aren’t exempted, but most experts agree that state statutes and court opinions aren’t protected.
Copyrights eventually expire, the theory being that after the author and his or her heirs and assigns has had a chance to profit, the work should become part of the common heritage. How soon that happens has changed over the years. Each revision of the copyright law has established a slightly different way of preserving one’s rights, resulting in a complicated patchwork of copyright terms. You can see just how complicated in the handy summary at http://copyright.cornell.edu/resources/publicdomain.cfm. Works whose copyrights have expired or were improperly preserved are said to be in the public domain.
Laws in other countries may offer more or less protection than U.S. copyright law. For example, the European Union requires its member states to give the creator of a database the right to prohibit the unauthorized retrieval and/or reuse of its contents. Under the relevant treaties, a country is only required to offer to foreigners the same rights it offers to its own citizens.
Assuming that a work is protected by copyright, there are ways to legally copy it. The most obvious is to get the copyright owner’s permission, called a license. Exclusive licenses must be written; non-exclusive licenses may be implied or unwritten.
Under limited circumstances it’s possible to legally copy a work without the copyright holder’s consent. The best known of these is “fair use,” quoting brief excerpts in order to make a point. Fair use is widely misunderstood; it does not grant a right to copy an entire work, even if it’s only for your own use. More on this later.
There are some technical and procedural defenses against a charge of copyright violation. These defenses include de minimis infringement (this refers to copying that uses a very small part of an author’s work without the author’s permission), estoppel, misuse of copyright, abandonment of copyright, “collateral estoppel, laches, res judicata, acquiescence, and unclean hands,” according to an article on the website of Ladas and Parrish, an intellectual property firm. In part 2, we’ll explore the fair use defense and some other defenses and exceptions.
Send questions to Cecil via email@example.com.
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