• Overview

  • Under 17 USC 102, authors and creators of “original works of authorship” that are expressed in a tangible medium are afforded copyright protection. Creators and authors are eligible for copyright protection from the moment that the work is created in a tangible medium and the protection applies regardless of whether the work is published, unpublished, or registered with the U.S. Copyright Office. However there are three requirements that must  be met to receive copyright protection. 

    1. Fixation: the work exists in a medium from which the author’s expression can be read, seen, or heard, either directly or by the aid of a machine. Such mediums could be a canvas or paper, but can also be recordings, and digital forms such as code.
    2. Originality: The work must trace its origin to the independent creation of the author. While works can be inspired from other creations, they must still be independent creations. 
    3. Minimal creativity -the work is the product of at least a minimal level of creativity. Courts are typically very relaxed with this standard. 

     

  • The types of work which are typical eligible for copyright protection include: 

    1. Literary works
    2. Musical works, including any accompanying words
    3. Dramatic Works, including accompanying music and choreography. 
    4. Sound recordings
    5. Architectural works
    6. Pictorial, graphic, and sculptural works
    7. Motion pictures, and other audiovisual works. 

    Courts consistently view these categories as extremely broad. For instance, audiobooks would be considered sound recordings. The printing on a product packaging would be considered to be graphic work. Computer code would be considered to be literary work, and a 3d printed model would be considered a sculptural work. 

    
    

    However, despite these broad categories, the protection does not extend to the following lists of works. This means that if you are interested in using these works, permission is not required and there is no risk of infringement of the copyright. 

    1. Works for which the copyright has expired. 
    2. Works produced by the federal government or by such employees acting within the scope of their employment. (i.e. government publications, laws, and letters created by the federal government are not protected since such works are created for the benefit of the citizens. Thus all citizens own such works.).
    3. Work clearly and explicitly donated to the public domain. 
    4. Works that have not been fixed in a tangible form of expression. For example, ideas, extemporaneous (and unrecorded) speeches, mental constructions. 
    5. Titles, names, slogans, familiar symbols or designs, lettering, coloring, and mear listings of ingredients are not copyrightable. 
    6. Discoveries, methods, procedures, systems, concepts, principles, ideas, or devices are not copyrightable except for their descriptions, explanation, or illustrations. 
    7. Works which consist exclusively of information or data that are common property and which contain no original authorship. For instance, a calendar is not copyrightable. 
• Rights of Copyright Holders 

• Owners of copyrights are entitled to exclude others from: 

  1. Reproducing the work
  2. Creating derivative works based upon the work
  3. Distributing copies of the work to the public by sale or other transfer of ownership including rental, lease, or lending. However, absent copying or replicating the work, non-copyright owners are allowed to sell and transfer the work after the “first sale.” (For example, consider an individual who buys a book. The individual cannot begin copying and replicating the book to sell, nor can the individual scan the book and post it on the internet (absent some exceptions), but the individual CAN sell or donate the book which they had purchased to another individual)  
  4. Performing the work publicly
  5. Displaying the copyrighted work publicly
  6. For sound recordings, performing the work publicly by means of digital audio transmission. 

  The copyright owner’s right to exclude is not absolute. For instance, when the copyright holder has a monopoly such as is the cae with songs, owners will be required by law to honor compulsory licensing under 17 USC section 115. In addition, there are multiple exceptions under “fair-use” doctrine.  

  It should be noticed that lack of knowledge of infringement  is not a defense. Nor is it a defense if the copier  attributes or gives credit to the authors. While giving credit will protect you from being considered a plagiarist in the public-eye, it will not protect you from a copyright infringement suit. In addition, just because a user is an educator does not mean that such use is immune from copyright infringement (for more details, see the analysis on fair-use below). Another common misconception is that simply because a work is “altered” then such a work is immune from copyright. This is completely false because of the derivative work doctrine which protects not just the copyrighted work itself but all derivatives works as well.

• Fair Use

  There are some narrow exceptions to when copyright holders are allowed to assert their claims. Some of these exceptions are under the “Fair Use” doctrine. The “Fair Use” doctrine seems to be often one of the most quoted exceptions to copyright, but also appears to be more largely misunderstood.
  
  In general, fair use allows copyrighted material to be copied for the limited and “transformative” purpose without the permission of the copyright owner. What a  “transformative” use is often at the forefront of copyright litigation, and its definition varies  depending on the Court. However, there are really three such “transformative” uses which are available: (1) to comment upon the work, (2) to criticize the work, or (3) to parody a copyrighted work. 

  For Commentary and Criticism, such fair use exceptions are derived from the First Amendment. It is believed that copyright holders of creative works would be reluctant to give permission to use their works if they knew that the purpose of the use was to ridicule or criticize their work. The framers of the constitution saw the value in speech which was meant to criticize and challenge ideas as necessary for a free society thus they placed high importance on it. 

  Good examples of commentary and criticism include replicating an architect’s design to show inherent design flaws with a building. Quoting a scientific report to comment on the impacts of a discovery or to challenge the validity of the research. To copy a few passages of a book to show an example of superb writing style. 

  In addition, parody is an often misunderstood concept of Fair use.  A parody work is a work that ridicules and pokes-fun-at another (usually well-known) work, but imitating it in a comic way. Judges (typically) understand that works of parody are important for both a free society  and for enjoyment of others and are themselves a creative work. It should be noticed that Satire is distinct from parody since satire uses the original work to criticize something else entirely. While the imitation of a creative work is essential to create a parody, it is not necessary for making one’s point using satire. 

  Claiming “fair use” for a satirical work will be immensely more difficult than doing so for a work of parody.

   
• Copyright licensing for software
  • Generally there are five different types software licenses. From most restrictive to least restrictive they are: Proprietary, Copyleft, Permissive, LGPL, and Public Domain License.
    • Proprietary
    • Copyleft
      • (Notable examples: GPL, GPLv3, FSF, AGPL, Mozilla Public License, Eclipse Public License, Open Software License, Microsoft Reciprocal License)
      • What is Copyleft: Copyleft grants the rights to distribute, change, and modify the work. However, in most cases, it means that any product that is built on the copylefted work will need to be available to the public. While this does not necessarily mean that a product produced from copylefted work is eligible, from commercialization, it will effect the public availability of the resulting code.
    • Permissive

(Notable examples: MIT, Apache, BSD, and Unlicense)

• The permissive license vary but most allow unlimited use provided attribution is given. The most common permissive license is the MIT license. The MIT license allows the work to be used in whatever application they see fit provided the original copyright and license notice is included in the distributed work. The MIT license also indemnifies the authors form any liability from the resulting use of the code by providing it “as is” without any warranties. In addition, the MIT license is silent as to whether there is a patent grant. Some have argued that there is an implied patent grant.
• Other licenses such as Apache, do have an explicit patent grant. In addition, Apache, like MIT, requires notifications and copyrights on the distributed code. Apache licensed works are distributed on an “as is” basis without any warranties. Works derived from code with an Apache License are not required to show such notification

• LGPL
• Public Domain