How Does Copyright Law Work?

The Purpose of Copyright

Fourteen years ago, I taught Florida colonial history to tourists in St. Augustine, Florida. As a museum docent, a tour guide, and a journalist, I made history a fun and exciting subject, simply by sharing it with context and depth. Of course, this always triggered deeper questions from my audience, which sent me back to the books for even more details.

In my research, I kept bumping into more and more historical facts that were not part of any tourism literature or school curriculum. I was astounded at the wealth of historical significance that was buried in little-known books and microfilm. I was dismayed that the creators of the mighty research materials I was benefiting from were still relying on other day jobs for their sustenance, rather than continue their amazing work of collecting and translating historical documents.

The world outside my office clashed with the insight of my research. In my daily life, I saw so much animosity that would be replaced with unity if people just knew more of the story. I spent hours and days and months, now years, collecting as much detail as I could. I aimed to write a lot of true stories, with as much primary and secondary documentation as has ever been produced. I was sure my online storytelling would drum up book sales for the authors whose work I relied on. We could all make a living by contributing our talents for the betterment of society.

But then my car needed maintenance. The house needed a roof. And what if cancer made its way to me? You get the point. I had to get a real job. I literally could not afford to spend full time building my contribution to cultural heritage. I was no freer than my source authors. Contributions to society are literally less important than earning a paycheck.

Nevertheless, I still plug away at it every chance I get. People always ask, when will it be available? When will I finish? Why don’t I just quit and devote myself to a lucrative career? Some big company will just take my work and use it as their own anyway. You can’t make a living at this.

Oh well. Slowly but surely, some fine day, my stories will be finished and published. Many people will learn from them. Just like before, they will trigger new questions. Some people will dig further and tell even more historical stories built off my work, which I built off my sources’ work. If my car breaks down before then, I’ll do what the true history buffs do: live downtown in the historic district with no car.

What would you do?  Why do you think governments even bother with individual creators’ rights?

What is the main purpose of copyright?

What is Copyrightable?

Facts vs. Expressions

Can you think of a light-bulb moment from your school days? Was there ever a time when you just could not understand something, and then someone explained it in just the right way for it to click for you? The facts didn’t change, but the expression of those facts did.

When I was a tour guide, I got that response all the time. Parents and children and retirees and even teachers were always lighting up from my history stories. They weren’t just lighting up from the facts. They were mostly lighting up from the surprise of actually liking history.

It seems most people struggle to learn history. They are full-on thankful when people bring it to life for them, like Mel Gibson in The Patriot and Russell Crowe in Gladiator. Do you learn better from history books or from movies? Now if only the movies could stick to the facts. Now if only we could determine the real facts.

That is the first rule of copyrightable. Facts are not copyrightable. But if you like my stories better than your high-school textbook, then my expression of those facts is unique, valuable, and copyrightable.

Original vs. Copy

If I write and publish history stories filled with facts that I retrieved from other people’s nonfiction books, am I stealing their hard work? What if my stories sound an awful lot like their stories?

If it’s not unique enough and someone feels copied, I’ll either have to go back to the drawing board or argue my originality to a judge and jury. You heard it here first, folks.

Copyrightable Items

Copyright covers more than just written creations. Different countries use different wording and have different specifics. But in general, they all try to cover “literary and artistic works”, and they call it “intellectual property”. It doesn’t have to be educational. Art for art’s sake is still precious to human development and learning.

Here is a list that the U.S. Copyright Office publishes in Circular 1, Copyright Basics:

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds
• Architectural works

Not Copyrightable Items

If I had a nickel for every time someone said they were going to copyright their catchphrase. Now we know that you don’t copyright things. You just fight for your rights if you get copied. But that’s only if you have a copyrightable thing.

Unfortunately, most of our ingenious ideas are not copy protected. Here is a list that the U.S. Copyright Office publishes in Circular 33, Works Not Protected by Copyright.

• Ideas, methods, and systems
• Names, titles, and short phrases
• Typeface, fonts, and lettering
• Blank forms
• Familiar symbols and designs 

If you can’t fit your creative work into one of those categories and a problem arises, you might have to let a court and jury decide the matter.

What is copyrightable?

Other Ways to Protect Intellectual Property

Wait! If a method or system is not copyrightable, how can I protect my invention?

Patents

Well, if you’re in the United States, you can do like the Hartman brothers did when they turned moonshine’s nickname “mountain dew” into a soft drink brand that now sells for $166 USD per share. You go down to the U.S. Patent Office and apply for a patent. This will give you a window of time to monopolize your micro-market. This is how pharmaceutical companies recoup the money they spent developing new medicines.

Are you a product designer? Have you redesigned an old product so it works better? You can get a patent on that. Coca-Cola has a patent on that ergonomic bottle.

As with copyright, if you see someone stealing the market with your patented design, a court will help you get your rightful share.

Trademarks

Wait! If a familiar symbol or design is not copyrightable, how can I use it to identify my brand? 

Did you see that Eddie Murphy movie in the 1980s, Coming To America? A businessman in the movie owns a chain of fast-food burger joints named McDowell’s. Their logo is a set of golden arches that bow in at the bottom. In real life, that would be a case for trademark law. Why? Because people genuinely could mistake this McDowell’s for McDonalds. What if someone got sick from McDowell’s and tried to sue McDonalds?

Trademark laws are established to prevent public confusion. You can register your logo as a trademark. It might not stop other people from using it, but it will warn users that you’ll probably win in court.

Geographical indications

There are special spots on the globe. They are so special that the spot itself identifies the value of a product. This is actually a form of intellectual property. If you try to mention the location on your product without it being from that location, you might be committing fraud. Idaho potatoes are from Idaho. Washington apples better be from Washington. Champagne is from Champagne, France. Zephyrhills water is from Zephyrhills, Florida.

Trade secrets and confidential information

Above, we discussed patents as a way to share a design while keeping a monopoly on it. What if you don’t want to share that design? What if even a patent isn’t enough protection? The patent office will still help you monopolize your design if you can prove you had the secret first. There is no time limit on trade secrets. Is McDonald’s secret sauce still a secret?

How Can I Protect My Ideas?

How Do I Get Copyright Protection?

Unlike patents and trademarks, copyright is a birthright.  You are declared the rightful owner of your creation the minute you capture it on something tangible. Without any necessary forms or registration, it simply says creators own their creations. If someone steals your creation, copyright countries will hear your case in court and help restore whatever you may have lost from the theft. 

How will the court know my copy came first?

That’s a great question. First and foremost, if you keep your song in your head, you haven’t created a tangible copy of it. My historical stories are not copyrightable if I just tell them verbally. 

Tangible qualities aside, how would a court know who was the first creator of a copied work? Courts are made up of people, remember? They want justice served just as much as you do. If your copy artist is also a con artist enough to fabricate a history of creation, you might have a battle on your hands. But for the most part, people tend to have enough random evidence to help a jury see through a sham.

If you’re still worried about it, get evidence from outside sources. Mail yourself a sealed copy so the postage stamp shows a date. Take a digital photo. The computer will date-stamp it.

When is My Masterpiece Copy-protected?

What is the Public Domain?

Do you remember when Google first added the Images tab to their search page? Isn’t that public domain? The internet is public, Google is public, and google.com is their domain name. Public domain. Mystery solved. I had a heyday adding graphics to my written materials. It certainly felt like a free-for-all. I mean, how come most of those images don’t have a copyright © symbol? 

Well, I’m an English major. I won’t lie. It felt like a guilty free-for-all. It felt like Google was cheating and I was riding along with feigned ignorance. I justified it to myself by only using Googled graphics for isolated audiences, and for educational purposes. Actually, I soon learned how to use Photoshop to better tailor pictures for my needs. Once I did that, I felt even less guilty with my right-click picture grabs. 

Well, Google never said, “Here, you can have it. Do what you want.” They just show us those images. They also let you left-click and instantly go see who put those images on the internet in the first place. Once I started creating my own images for my own web pages, I got a sense of what it feels like to be right-clicked.

Guilty as it may sound, the highest ideal of creative and intellectual property is, in fact, a free-for-all. If it was all free, we’d all be creating gazillions of fabulous new innovations from the starting point of other people’s work. 

Luckily, the internet really is breeding a huge bank of free-for-all. There are websites that specialize in publishing materials that we thought were copyrighted, but they’re actually free for our use. This arena is known as the Public Domain. Wait. Let’s take the authority caps off. This arena is known as the public domain. That’s all of us.

How Public Domain Happens

It’s pretty simple, actually. You can figure it out for yourself if you sit by a fireplace in a rocking chair, puffing on an old pipe. But since you might not have those three ingredients, let alone the time to do that, I’ll give you the quick lowdown.

There are four roads to the public domain:

1. Copyright expires. (Most countries expire 50 years after the creator dies. The U.S. and E.U. wait 70 years.
2. Copyright never applied. (Ex. government documents.)
3. The creator dedicates the work to the public domain. (Creative Commons has a legal tool for this called CC0 (“CC Zero”)
4. The copyright holder missed the memo (Way back when copyright required activation.)

How Free is the Public Domain?

It’s free until you hurt someone with it. Free use of people’s work does not give you freedom to cause problems for them, or anyone else. For example, native cultures can be skewed by inaccurate representations of their cultural materials.

It’s free according to the laws of the country of origin. Many countries have peculiarities in their copyright laws. You might inadvertently violate someone’s rights in another country just by following the public domain law in your own country.

Even if you use public domain material as a base for your new creation, your new creation is copyrightable. It doesn’t fall into the public domain just because its base is in the public domain. Don Quixote is in the public domain, but you can write your own translation and it will have copyright protection. 

Where Do I Find the Public Domain?

The public domain already has millions of pieces in it. And it grows every day as more copyrights expire and more people contribute more new creations to it. But this domain is not a place; it’s a current status.

When you consider all the paperwork held by all the governments and museums and homes and businesses around the globe, there are billions of valuable artifacts of human intelligence that qualify as public domain. Want to see what Coney Island looked like in 1945? It’s right there in the photo albums of many a grandparent. Are you ready to start knocking on doors and scanning pictures and papers?

Thankfully, somebody somewhere is paying somebody somewhere to digitize and publish these pieces on the internet on web servers that somebody somewhere is paying to rent and maintain. Multiply that statement. The U.S. Library of Congress is digitizing one category at a time. Spain is ever so slowly building their digital colonial archive, PARES. Here’s a starter list. You might as well click each one and add them to your browser bookmarks.

• Library of Congress
• PARES
• Project Gutenberg
• Public Domain Review
• Digital Public Library of America
• Wikimedia Commons
• Internet Archive
• Flickr
• Europeana
• Smithsonian
• Auckland Museum
• Rijksmuseum

Besides these generous, generous organizations, you can still find more public domain materials with your own sniffer. You just have to know the rules. Remember, copyrighted materials do not need a copyright © symbol to be copy protected. Really, that thing is just a theft-deterrent system. It doesn’t prove anything, nor does its absence prove anything.

What is helpful is a public domain symbol. There are two floating around already. Both of them are creations of Creative Commons. That nonprofit is encouraging everyone to place one of the symbols next to all public domain work on the internet just to make it easy to spot free-access materials.

The first symbol you might see is CC0. That’s a Creative Commons license that allows creators to formally dedicate their work to the public domain. The second symbol you might see is the Public Domain Mark. Creative Commons invented that to label pieces they know, beyond a shadow of a doubt, have expired copyright everywhere in the world. The Public Domain Mark wouldn’t provide any help in a legal situation, but it’s a nice clue for us freebie shoppers.

Citing Authors in the Public Domain

If you are in a hurry, you actually don’t have to credit the author of work you are using from the public domain. However, if you want to be taken seriously by intellectual people who value intellectual property, you should still credit the creators of your borrowed pieces, if you know who they are. Otherwise, you look like you don’t know and don’t care where your sources came from. It’s also nice to credit the generous, generous organization who provided a digital copy for you on the internet.

You can learn the etiquette of public domain usage at the Creative Commons website.

What is the Public Domain?

Are There Any Limits to Copyright?

Copy Size

If Google can list every web page on the internet, does that mean all those pages are not copyrighted material?

Well, let’s see. Google shows text and images. Let’s start with the text list under the search engine’s All tab. Is Google showing us the entire content of those web pages? Let’s Google the phrase “public domain”. What do we get? We get a list 1,170,000,000 items long. Each item shows us one or two sentences. Is that a reproduction of those web pages? 

No, Google displays a short excerpt known as a “snippet”. It’s smaller than most quotes. This is a prime example of a limit to copyright. Copyright protection has small holes in it. In this case, anyone can copy a small piece of our creation and reproduce it as many times as they want. Otherwise, how would we quote other people’s work? How would Google even exist?

Copy Purpose

When countries developed their copyright laws, they built in certain windows for public usage. In the United States, these windows are called “fair use”. The government motivation for this is to make sure the public is able to quote published material, criticize it, parody it, and modify it for handicap access.

There are other ways copyright can be interrupted. Each country has their own specific rules for what situations are acceptable.

Copyright Term Limits

There is a growing movement to limit copyright as much as possible. This is in response to a trend of cultural treasures being locked in endless copyright renewals. If I want to make and sell Mickey Mouse tee shirts, I’d have to pay the Walt Disney Corporation for copy rights, even though Mickey Mouse’s creator is long gone. Extended copyright serves shareholders and beneficiaries, not creators.

Copyright extension is being challenged both legally and socially by the nonprofit organization, Creative Commons (CC). If you would like to help build the content of the public domain, CC invites you to participate in the movement.

When Can I Disregard Copyright?