Determining a work’s copyright status is important for content creators and for anyone trying to make use of a preexisting work, but people are often confused about what copyright is and how it can be obtained. This problem is exacerbated by the fact that the popular and colloquial understanding of copyright law often differs from the actual laws themselves.

What can be copyrighted?

Anything that is an original, fixed, creative work in a tangible medium can be covered by copyright law. Unfortunately, without further examination, this definition raises more questions than it answers.

An original work is one that is independently created.  Originality here is not subjective—it does not mean that the work is different in any way, but instead means that it was created by the author. For the purposes of copyright law, even a work that breaks no new ground can be copyrighted as long as it was not created as a copy or derivation from some other work. Creativity is treated similarly.  Aesthetic considerations are not taken into account—creativity for the purposes of copyright law is defined as the act of creating, in opposition to finding or compiling. Any film, no matter how brief and artless, is a creative work. A list of names and phone numbers, even if it took years to assemble, is not.

Whether or not a work is fixed differs from the layman’s understanding of the word. It does not mean complete—the legal definition of fixed in this context is more akin to perceptible; a work in progress is still copyrighted at each individual stage of its creation. A work is fixed at each moment in which it exists, in any format. This is related to a work’s tangibility. To be tangible, a work does not need to be long-lasting or physical—a live television broadcast can constitute a tangible work, for example, even if it is never recorded.

What cannot be copyrighted?

As a result of the subjectivity of the definition of a copyrightable work, it is simpler to define what cannot be copyrighted. Ideas and facts, even if the work they appear in meets the conditions discussed above, cannot be copyrighted.  On the other hand, an expression of an idea (such as a film about that idea), and an expression of facts (such as a documentary) can be copyrighted. This means that while most actual works are covered by copyright law, their underlying ideas are not. So, while a film will be protected, the basic plot to that film will not be—likewise, a documentary will be protected, but the facts it presents will not.

This is further complicated by the status of derivative works. Though copyright law is clear in that ideas cannot be copyrighted, works may not be based on or derived from other works without the permission of the copyright holder of the original work. Even if the method of expression meets all of the criteria discussed above, a work too closely based on another work may violate copyright law. Determining where the line between a derivative work and non-derivative work is can only be done on a case-by-case basis.

What constitutes a copyrightable work is often counterintuitive, based on complicated statutes and recent court cases rather than common sense. As a result any borderline cases should be considered by an attorney who is well-versed in copyright law.

How is copyright obtained?

A work is covered by copyright law as soon as it meets all of the conditions of a copyrightable work: once it is an original, fixed, creative work in a tangible medium. Copyright is automatic and does not have to be stated or registered to be considered valid. This does not mean, however, that there is no reason to do so. Registering a work with the U.S. Copyright Office can provide valuable proof of copyright, and is a prerequisite to filing a suit for copyright infringement within the United States. Determining who owns the copyright on a newly created work is often complicated, so if multiple parties are working together on a project, copyright status should be explicitly set out in a copyright agreement contract in order to avoid confusion and disputes.

How long does copyright last?

Changes in copyright laws over the years have led to a proliferation of copyright terms in the United States: all works published before 1923 are now in the public domain (meaning they can be reproduced without obtaining copyright permission), works published between 1923 and 1978 are protected for ninety-five years, and works published since 1978 are protected for seventy years past the life of the author. There are also special cases too numerous to mention here, dealing with situations like works that were created in one period but published in another, or works that were published after the death of the author.

In most cases, the clock on a work’s copyright status starts automatically upon publication. As usual when it comes to copyright law, this is more complicated than it appears at first glance. The date of publication is in many cases not easily defined: a completed film that has been watched privately by five film distributors would probably not be considered to have been published, but a completed film shown to five members of the general public at a screening probably would be.

If the work is published in other jurisdictions, the copyright laws of those jurisdictions will have to be considered as well. For example, George Orwell’s 1984 is currently in the public domain in Canada, South Africa, and Australia, under copyright in the United Kingdom and Brazil until 2021, and under copyright in the United States until 2044. Copyright may have elapsed in certain countries while still existing in others, so it is essential to be very careful when making assumptions about a work’s status in one country based on its status in another.

We Can Help

Though the basics of copyright can be explained relatively simply, there are always complications, exceptions, and special cases to be considered. To be absolutely certain, any questions regarding a work’s copyright or any potential copyright violations should be discussed with an attorney. Failure to do so can lead to a lack of protection on the side of content creators or legal liability on the part of anyone using copyrighted content. To meet with a Bailey Law Firm attorney to discuss copyright agreements, copyright registrations, or copyright enforcement demands, please contact us with any questions by clicking here or by calling our office at 832.510.2900 to schedule a complimentary consultation.