Legally Speaking, It Depends: What is Copyright, Anyway?

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With all the discussion and argument about copyright it might be beneficial to ask one, simple question.

“What is Copyright, anyway?”

WhatIsCopyrightIt, as always, depends. It is both very specifically defined in the U.S. by statute and at the same time highly convoluted and mirky when you gaze into the details. And it varies when you cross international borders (every country has their own spin,) and changes over time and… well you get the picture. In the limited space allotted here, let’s at least try to put a frame around the subject to clear it up just a little.

When 6 = 6 is false

To start with, in the U.S. there are six defined individual rights contained in the bundle of right we commonly refer to as copyright. (For the data nerds, they’re defined in the U.S. Code in §106 of Title 17, Chapter 1.) Simple, right?

“So when I write a script I get six specific rights I can protect, right?”

Nope. Actually, whatever category of work you make that qualifies for Copyright protection, and there are eight broad categories and a couple of category adjacent ones to chose from,

SIDEBAR: Subject Matter of Copyright 8+
To qualify for copyright protections a work must fall into a statutorily recognized category of copyrightable works:
(1) Literary works (scripts can qualify here),
(2) Musical works including lyrics and accompanying words, (the songs BEFORE they’re recorded, think sheet music, compositions, etc),
(3) dramatic works, including accompany music (stage plays and the like here),
(4) pantomimes (Yeah Marcel Marceau!) and choreographic works,
(5) pictorial, graphic, and sculptural works,
(6) BIG ONE – motion pictures and other audiovisual works,
(7) sound recordings (this is the music recorded on physical records and CDs, separate from and co-existing with the musical compositions), and
(8) architectural works (recent addition).
PLUS: compilations have a separate copyright from their constituent works and so do derivative works made from or inspired by original works.

it is a sure thing that you cannot claim all six rights in any one work. It’ll start to make sense (just a bit) if we look at what these six rights are.

1. – “Making Copies” Right

copyCopyright grants a right to make copies. (Duh!) This right is invoked when you go down to the local copy shop or when the DVD manufacturer starts cranking out those discs. When the work is directly (or near enough) copied, in whole or in part, this right is invoked.

2. – “Inspired by” Right

derivativeYou also get the right to make Derivative Works. These are works that aren’t direct copies of the work, but, are clearly derived from or inspired by the work. The easiest example is to consider a movie sequel. The story has changed, taking off from where the last movie left off. The characters are pretty much the same, but, the situations and dialog are completely different (except for the required catch phrase or two.) Even though it is a completely new work, the ties back to the original are clear and binding. You cannot write a sequel without first getting the right to make a derivative work from the original’s copyright owner. This can be straightforward or very murky. How different is different enough to not be derivative?

3. – “Send Them Out the Door” Right

distributeAll those copies are useless unless you can get them out the door to their audience. This is where the right of Distribution comes in. Copyright owners have a right to determine how their works get distributed, to a point. Once they’ve been sold the resale right goes to the purchaser. This is what’s known as the First Sale Doctrine. A copyright owner can’t control the distribution once they’ve made the first sale into the market stream.

4. – “Let’s Put On a Show” Right

performanceWhen it makes sense to the work (see below for an example), there can be a right of Public Performance granted with the copyright. (You wouldn’t think of a right of performance for a copyrighted oil painting, unless you think watching paint dry is a “performance”.) Here the emphasis that is often overlooked is on “public.” A bunch of friends watching a football game on a big screen TV in a home is not a public performance, most likely. The same group of friends watching the same game at a sports bar is.

5. – “Put a Frame Around It” Right

displayAgain, if it makes sense for the work, copyright can provide a right of Public Display. Think of that lonely oil painting that couldn’t be publicly performed. It is perfectly happy hanging on a wall in a gallery publicly displayed. It’d be a bit strange to look for a public display right in a screenplay, though. Unless you were looking to open the printed material to a particular page and put it under glass next to the painting.

6. – “The Digital Revolution Will be Transmitted” Right

digital distrThe last right in the bundle granted by statute is only available to a small minority of works. It is a special Public Performance right for Sound Recordings when transmitted through Digital Audio Transmission. In the U.S. there is no public performance right for sound recording otherwise. This new-ish law was put in place to compensate rights holders for the quality jump in the performance. An analog album playing on a radio station has no public performance right. A CD playing on an internet blog station does.

And if we’re talking outside of the U.S. there are copyright-like rights that creators get such as Moral Rights, or as I refer to them for more clarity, Reputational Rights. These allow the owner to demand things or require certain treatment of the work even though the physical work is owned by someone else. Things like requiring credit be given, particular steps to be taken with the work when on public display or in performance, etc. You can have a various number of these types of rights depending on the country the work is in. And even though the U.S. doesn’t have statutory rights (except for a few special cases contained in the Visual Artists Rights Act (VARA)) it doesn’t mean the creator doesn’t have some semblance of what these rights grant. Just try making a movie nowadays without giving credit to the screenwriter and see what the WGA says about it. These copyright-like “rights” are out there in various forms so it’s best to be aware of where you are and what that territory might provide.

“But I only write screenplays. What rights are involved with my stuff?”

You might hate me, but, it depends.

Simple scenario – Write a spec. It has 4 rights: copy, derivative works, distribution and public performance (+ display if you want to be silly).

Typical scenario – You pitch to a studio (no rights yet), they buy the pitch and you go off to write (studio usually gets rights by contract). But those rights are tied into the eventual product, the motion picture. All the individual potential copyrightable material that goes into a film hold less copyright strength as individual works (if intended to be part of the whole.) When there are integrated copyrightable works all bound together, the rights of some might be precluded or interfered with by the rights of others. It can be difficult to separate or even understand who owns what and can do what with it.

Actual scenarios – vary like individual snowflakes. (Which aren’t copyrightable, by the way.)

What Copyright Isn’t or Doesn’t Cover

The recent fight between Warner Brothers and The Weinstein Company over what eventually was called Lee Daniels’ The Butler was a lot of things (most of them silly) but what it wasn’t was a fight over copyright of a title. There’s no such thing. It’s not even a trademark battle. (You cannot trademark a single movie title.) It boiled down to a contract dispute between signatories with an agreement brokered by the MPAA. And titles are not the only thing you can’t copyright. To quote the statute, “In no case does copyright protection for an original work of authorship extend to 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.” – §102(b).

Though J.D. Salinger would scream at me for letting you know this if he wasn’t dead, having a copyright does not mean you can control everything that can be done with your work. Yes, you have an “exclusive right” but there are exceptions and exemptions that are out of your hands. There is also Fair Use in the United States and Fair Dealing and other variations in different countries that allow an unauthorized use of a work for “reasons”. (Future column fodder, there. Lots of it.) And there’s that whole “limited time” issue. Eventually everything is in the public domain. It’s all a matter of the details for the work in question.

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