Introduction U.S. Constitution Exclusive Rights Subject of Copyright Compilations Derivative Works Not Copyrightable How To Copyright Registration Duration


by Darlene Cypser, Esq.

This is an essay I am developing on Copyright Law. Come back occasionally to see the changes.


          To every creative person copyrights are both a boon and a bane. The copyright is the most valuable thing that a writer, filmmaker, photographer, artist, composer, or musician has when they are done creating. Sure, they have the tangible object: the manuscript, the painting, the recording, etc. But the value of that tangible object is usually small by comparison to the right to reproduce and sell copies of it or to make other works derived from it.

          On the other hand, creative people are sometimes inspired by the works of others and wish to incorporate other works into their own. Filmmakers may wish to sync music that they like to the other sounds and images that they have fixed in their movie. Writers may wish to write stories based on characters that others have created. To do so, they must have the permission of the holder of the copyright. If they cannot obtain that permission their creativity is stifled, but if they proceed without it, then they are trambling on the rights of another creative person and depriving them of credit and compensation for their work.

          The founders of our country not only saw this conflict but they also realized that all things must come to an end. Their vision is reflected in the U.S. Constitution.

Fundamentals of U.S. Copyright Law: the Constitution

          Article I Section 8 of the U.S. Constitution states:

          "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

Basics of U.S. Copyright Law

          Copyright law in the United States of America is primarily governed by Title 17 of the U. S. Code which consists of the laws passed by the U.S. Congress in various years under the authority of Article I Section 8 of the U.S. Cosntitution cited above. Sections of the copyright law are usually cited in this style: 17 USC §100.

          What Rights Does A Copyright Give Me?"

          Subject to certain limitations, 17 USC § 106 gives the owner of a copyright the EXCLUSIVE right to:

  1. produce copies of the work
  2. create derivative works
  3. distribute copies work to the public by sale or rental
  4. perform the copyrighted work publicly
  5. display the copyrighted work publicly

          Limitations on those exclusive rights include: Fair Use (17 USC §107), Reproduction by Libraries and Archives (17 USC §108), Performance or Display by Non-Profit Educational and Religious Institutions (17 USC §110), Cumpulsory Licenses on Phonorecords (17 USC §115), Archive Copies of Computer Programs (17 USC §117), Reproduction for Blind or Disabled People (17 USC §121).

         What Can be Copyrighted?

          17 USC §102 states that "original works of authorship fixed in any tangible medium of expression" are subject to copyright, including:

  1. literary works
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works
  9. compilations

          But what is an "original work?" What degree of of originality is required? What quantity? The statute does not explicitly say. That has been left to the interpretation of the appellate courts.

          Compilations and Derivative Works

          However, 17 USC §103 extends copyrightable works to include compilations and derivative works, but only to the material contributed by the author of the derivative work or the compilation "as distinguished from the preexisting material employed in the work" and only if the derivative work or compilation does not infringe other copyrights.

          The copyright statute defines both "derivative work" and "compilation." 17 USC §101 defines a "derivative work" as:

          "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work"."

and a "compilation" as

          "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works."

          A copyright in a compilation or derivative work is independent of the copyright (if any) in the original work "and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material." For example, if you compile an anthology of short stories which are all in the public domain, your copyright in that compilation only applies to your arrangement of the materials and any introductory materials or annotations. The short stories are still in the publc domain and thus can still be published by anyone without your consent, even if they copy them from your compilation. You cannot create a copyright in something in the public domain by reproducing it. If you scan or photograph an old map or old book which is in the public domain, the act of creating the image must add substantial original material to the public domain work or there is no copyright at all. It does not matter how much time or effort you put into recreating the original work. It is still in the public domain.

          What Can NOT be Copyrighted?

          Not everything can be copyrighted. 17 USC §§ 102 & 105 state that the following types of things cannot be copyrighted in the United States:

  1. ideas
  2. procedures
  3. processes
  4. systems
  5. methods of operation
  6. concepts
  7. principles
  8. discoveries
  9. any works created by the United States Government (§105)

          How Is Something Copyrighted?

          According to 17 USC §§ 101 & 102, once a copyrightable work is "fixed in any tangible medium of expression" from which it can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" the copyright exists in that work. To be "fixed in any tangible medium of expression" it must be in a form that is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated." For example, a performance is not "fixed" until it is recorded by audio or visial means. A book or a poem is "fixed" when it is written on a piece of paper or saved to a computer harddrive. Registration is not required to create a copyright. However, registration provides important benefits.

          How Is A Copyright Registered?

          Now that is the easy part: Just visit the U.S. Copyright Office website, fill in the blanks on the appropriate form, print the form and mail it along with a check for $45 and the required samples of the work to the address on the form.

         Will mailing myself a copy help?


          Some people argue that mailing a copy of your manuscript or screenplay to yourself will provide proof that you created it before a particular date. That is not necessarily true. Unless you send it Registered Mail where it is sealed and stamped on the seal by a postal employee, you have no proof that you did not mail yourself blank sheets of paper and later unseal the envelope and substitute the manuscript. Sending a 3 pound manuscript halfway across the country by Registered U.S. Mail will cost over $16. If someone steals your work, then you still must register it with the U.S. Copyright office before you can sue them for infringement. So instead of $45, you are paying at least $16+$45=$61. It would have been cheaper and more efficient to have filed it with the Copyright Office in the first place. A copyright certificate can be a very powerful tool for making an infringer back down. Most websites will require that you provide a copyright certificate before they will remove material that you claim infringes your copyright.

         Will registering my screenplay with the Writers Guild of America help?


          The reasoning is the same as that above. You can pay the WGA their registration fee, but you must register it with the U.S. Copyright office before you can sue for infringement. You end up paying two fees rather than one. Only the Copyright Office can issue a copyright certificate that can truly protect your work. In addition, distributors and publishers may require a copyright certificate to prove that you are the copyright holder before they will license and distribute your work.

          How Long Does A Copyright Last?

          The duration of a copyright in the USA currently depends on several factors including:

  1. When was it created?
  2. When was it published?
  3. Was it published anonymously or pseudonymous?
  4. Was it a "work-for-hire"?

          Duration of copyright: Works created on or after January 1, 1978

          According to 17 USC §302 "Copyright in a work created on or after January 1, 1978, subsists from its creation and ... endures for a term consisting of the life of the author and 70 years after the author's death." If the work is created by two or more authors, the copyright endures for 70 years after the death of the last surviving author (17 USC §302(b)) Copyright in Works-For-Hire, Anonymous Works and Pseudonymous Works lasts for 95 years from the date of first publication or 120 years from the date of creation, whichever comes first. However, if the identity of the anonymous or pseudonymous author is revealed on the registration records prior to the end of that term, then the duration of the copyright will be 70 years after the author's death. (17 USC §302(c))

          Duration of copyright: Works created before January 1, 1978

          If a work was created before January 1, 1978, but not copyrighted under the older rules or published in such a way that made it fall into the public domain then the copyright shall endure according to the rules in Section 302 above, but in no case will the copyright expire before December 31, 2002. (17 USC §303) If the work is published before 2002 then the copyright shall not expire before 2047.

          Works that were published and copyrighted before 1978 and were still in their first 28 year term on January 1, 1978 will have an initial copyright term of 28 years plus a renewal term of an additional 67 years, for a total of 95 years from the date the copyright was originally secured. (17 USC §304) The copyright claimant or the claimant's heirs may apply for such extension. However: "Such an application is not a condition of the renewal and extension of the copyright in a work for a further term of 67 years." (Added by the Sonny Bono Copyright Term Extension Act) (17 USC §304(a)(2(B))

          Any works that were in their renewal term on the effective date of the Sonny Bono Copyright Term Extension Act (October 27, 1998) have a copyright term of 95 years from the date the copyright was originally secured. (17 USC §304(b))

          The Copyright Act of 1976 extended the term of copyrights commencing between September 19, 1906, and December 31, 1949 to 75 years if they were in their renewal term between December 31, 1976, and December 31, 1977. In addition, prior to the 1976 Copyright Act, Congress enacted a series of nine interim extensions for works whose copyright protection began between September 19, 1906, and December 31, 1918, if they were in their renewal terms. Without these interim extensions, copyrights commencing during that time period would have otherwise expired after 56 years, at the end of their renewal terms, between September 19, 1962, and December 31, 1976. The nine Acts authorizing the interim extensions are as follows, in chronological order:

  • Pub. L. No. 87-668, 76 Stat. 555 (extending copyrights from September 19, 1962, to December 31, 1965)
  • Pub. L. No. 89-142, 79 Stat. 581 (extending copyrights to December 31, 1967)
  • Pub. L. No. 90-141, 81 Stat. 464 (extending copyrights to December 31, 1968)
  • Pub. L. No. 90-416, 82 Stat. 397 (extending copyrights to December 31, 1969)
  • Pub. L. No. 91-147, 83 Stat. 360 (extending copyrights to December 31, 1970)
  • Pub. L. No. 91-555, 84 Stat. 1441 (extending copyrights to December 31, 1971)
  • Pub. L. No. 92-170, 85 Stat. 490 (extending copyrights to December 31, 1972)
  • Pub. L. No. 92-566, 86 Stat. 1181 (extending copyrights to December 31, 1974)
  • Pub. L. No. 93-573, 88 Stat. 1873 (extending copyrights to December 31, 1976)
(Footnote 7 to Chapter 3 of Title 17 of the US Code)

          "All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire." (17 USC §305)

          Confused? That's not surprising. The result of all that is:

  • Any work CREATED on or after January 1, 1978 is in copyright until at least 2048.
  • Any work PUBLISHED before 1923 is in the public domain.
  • Any work CREATED before 1923 and NOT PUBLISHED before 2002 is in the public domain.
  • Any work CREATED before 1923 and PUBLISHED before 2002 is in copyright until 2047.
  • Any work CREATED on or after January 1, 1923 but PUBLISHED before December 31, 1977 without a proper copyright notice, is in the public domain.
  • Any work COPYRIGHTED on or after January 1, 1923 but before December 31, 1947 which failed to file a renewal of the copyright at the end of the first term is in the public domain.
  • Any work COPYRIGHTED on or after January 1, 1923 but before December 31, 1977 (and which was properly renewed if required prior to 1997) will have a copyright term of 95 years:
    19232018 19422037 19612056
    19242019 19432038 19622057
    19252020 19442039 19632058
    19262021 19452040 19642059
    19272022 19462041 19652060
    19282023 19472042 19662061
    19292024 19482043 19672062
    19302025 19492044 19682063
    19312026 19502045 19692064
    19322027 19512046 19702065
    19332028 19522047 19712066
    19342029 19532048 19722067
    19352030 19542049 19732068
    19362031 19552050 19742069
    19372032 19562051 19752070
    19382033 19572052 19762071
    19392034 19582053 19772072
    19402035 19592054
    19412036 19602055

    Stanford University has compiled a searchable a searchable database of copyright renewals of books received between 1950 and 1992 for books published published in the US between 1923 and 1963. Stanford Database of Copyright Renewals

    Coming Soon:

    • More Basics

    • Recent Legislation

    • Issues in Copyright Law

      • Characters: Ideas or Expression?
      • Fair Use or Infringement?
      • Public Domain
      • Copyright Clashes on the Internet

    • Practical Matters: How the hell do you license...anything?

      • Music: Sync Licenses/Mechanical Licenses/Compulsory Licenses
      • Literature: Serial Rights/Book Publication/Adaptation Rights/Translations/Options
      • Movies: "Videogram" aka Home Video/Broadcast/Cable/Theatrical/Ancillary Distribution

    Related Links

    ©2007 Darlene Cypser