Welcome back to my series of posts on copyright. This time, we’re going to tackle the question of what is under copyright and what isn’t, with some examples of complicated cases. Here are the parts in this series.
- Part 1: Why is copyright so complicated?
- Part 2 : Key concepts and terms
- Part 3 : What is under copyright? And what isn’t? (this post)
- Part 4: Fair use: what it is and isn’t.
- Part 5: Examples and common confusions
- Part 6: Common Pagan situations, including some best practices.
- Part 7: What creators of material should know. (We all create material.)
Works, not facts or ideas
The first thing to understand is that copyright protects many different kinds of works – books, novels, short stories, theatre, music, poetry, songs, computer software, architecture, among others.
Copyright doesn’t protect facts, ideas, systems, or what are called ‘methods of operation’. However, copyright can protect how those things are expressed.
A common example here is a recipe – copyright doesn’t protect the list of ingredients or the really basic description of how to combine them (that’d be the method of operation). But it would protect a description that went beyond basic instructions, or stories or commentary with the recipe.
Copyright covers original works in a fixed form.
Original means two things.
1) That it is an independent creation (not a copy of anything else)
2) That there is a modest amount of creativity.
A lot of copyright law is about defining these things.
Without getting bogged down in details at this point, one of the things that is very clear in the law is that you only need a very modest amount of creativity or originality. For example, if you were trying to copy something, and your hand slipped, it could count as an original work.
(A quote from a case in 1951, from Judge Frank, goes “A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the ‘author’ may adopt it as his and copyright it.”)
One intriguing thing about copyright is that it doesn’t have to be new. (Trademark and patent law care about whether something is new. Copyright doesn’t.)
It’s pretty common for people to have similar sorts of ideas about the same subject. For example, within the Pagan community, two people might independently strike on very similar wording for a chant for a particular ritual or deity focus. In these situations, a copyright case would look at whether they had any knowledge of the other work.
The fixed form part of the definition is a bit easier to explain. Basically, as soon as you have committed the work to a fixed form, it qualifies for copyright if it’s not excluded for other reasons.
This can include:
- Saving something as a computer file.
- Taking a photograph.
- Painting or drawing artwork on paper (or another medium)
- Writing down music
- Notating the choreography of a dance or routine.
- Recording a speech or performance.
What isn’t under copyright?
Some kinds of works can’t be copyrighted. The Copyright Office of the United States has a good summary of Copyright Basics (PDF).
Works that can’t be copyrighted include:
- Works that aren’t in a fixed form (like a dance that hasn’t been notated or recorded, or an improvised speech that isn’t written or recorded.)
- Titles, names, short phrases, slogans (these can be covered by trademark in some cases)
- Listings of ingredients or contents (without other material)
- Ideas, procedures, methods, systems, processes, principles, discoveries, concepts, etc. (Some of these may be covered by patent law.)
- Information that is entirely common property with no original content (standard calendars, measurements, height/weight charts, etc.)
In the United States (and a number of other countries), material created by federal or state governments as part of their work is also not under copyright. For example, photographs from NASA used for the Astronomy Photo of the Day are not under copyright, or photos taken by a National Park Service ranger in the course of their job.
This means that laws, congressional actions, government forms, etc. can be shared without worrying about copyright issues.
What is under copyright?
Answering whether a specific work is covered by copyright is a bit harder, because the law has changed several times. There are also different timelines for published works and unpublished ones.
In general, though, anything that was put in a fixed form after 1976 is probably protected by copyright law unless it is specifically exempted.
Material created between 1923 and 1976 might be protected, but it’s often complicated to figure out. During this time, there were a number of more substantial restrictions for how you had to publish materials to get copyright protection, and the copyright had to be renewed.
However, since it’s hard to tell, a best practice is to assume a given work in this time frame is protected unless you can determine it isn’t.
Almost all works before 1923 are now in the public domain (no longer protected by copyright), but there are some occasional odd exceptions.
One of the best known is Peter Pan. J.M. Barrie, the creator, gave the copyright to the Great Ormond Street Hospital, and Parliament passed an act giving it specific extended protection. This article explains the whole long complicated story. There are also sometimes differences between countries: this has affected publications like Sherlock Holmes.
Large gray area
Finally, there’s a large gray area. Copyright law was originally designed to create a balance protecting creators and encouraging innovation.
It’s important to protect creators and make it possible for them to benefit from the time, energy, and materials involved in creating things. Otherwise, many people wouldn’t put that kind of time into it. But it’s also important to allow people to share creations, riff off them (transformative works, we call that now), and use other people’s work to encourage, inspire, or support new innovation and creativity.
For example, what happens when you take a work by a particular artist, and use it in a meme (i.e. as part of a new creation, with added content or context or commentary)?
The case of Pepe the Frog is a very current example, and it’s also a good highlight of some of the issues between US (and UK and Commonwealth countries) approach to copyright law, and continental European approaches to copyright law, which often include more focus on the artist or author’s ‘moral rights’. Here’s an article about Pepe that goes into some of the details.
Copyright law (as I mentioned in early parts) can take a long time to catch up to new technology and new transformative uses that technology allows.
I’ll be digging into more specific examples (and some common confusions) in part 5. Next up, part 4, which will talk about fair use. (Because those examples will make more sense if we talk about fair use first.)