Month: April 2013

The Six Rights of Copyright – Part III: The Right to Prepare Derivative Works

This is the third part in our series on what makes a copyright.  If you’re just jumping in, take a look at the first two parts linked below to get caught up.  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

III.  The Right to Prepare Derivative Works

A derivative work starts with a pre-existing, copyrighted work.  A different author then recasts, transforms, or adapts it to create something new and original.  The exclusive right to prepare derivative works is also known as the adaptation right.  As an exclusive right, the copyright owner of the pre-existing work alone has authority to prepare derivative works.  Derivative rights also tend to overlap with the reproduction right because you’re reproducing a part of the original in the derivative work.  The derivative right exists primarily to prevent others from stealing your ideas for their gain.  It also works, however, to stop others from changing the meaning of an original work unless they have the author’s permission.

Derivative Rights
Mona Lisa with a Moustache – A Derivative Work

Derivative works come in many shapes and forms.  Mona Lisa with a Moustache is a famous scholarly example, but films from Harry Potter to the Godfather are ripped from the pages of books.  Hip hop is rife with beats, samples, and lyrics taken from earlier songs (although this musical practice has been going on for ages).  Even the popular Ecards with sarcastic messages on Facebook are derivative works.  Adaption may also occur when there is a:

      • Translation
        • Dramatization
  • Fictionalization
  • Editorial revisions
  • Annotations
  • Elaborations
  • Abridgment

Compilations (musical or factual) are NOT derivative works, but can still enjoy copyright protection under a different part of the law.

Copyright protection extends to derivative works, just as it does to the original work.  This protection, however, only covers the new and original material added to a pre-existing work. There must also be a substantial difference between the new and original work.  Creating a derivative work doesn’t give that creator any ownership over the original work.  It also doesn’t enlarge or extend the copyright protection of the original work.  The following is an example to illustrate the point:

Mario Puzzo originally penned The Godfather as a book in 1962 by Mario Puzzo.  The book Godfather has copyright protection.  Francis Ford Coppala and Mr. Puzzo took this pre-existing work, with Mr. Puzzo’s permission, and adapted it into a screenplay.  The screenplay Godfather also has copyright protection as a derivative work, but only for the new and original material.  Mr. Coppala did not gain ownership rights to the book, and Mr. Puzzo did not get added time for his copyright to the book.  The 1972 movie Godfather, in turn, was a derivative work of the pre-existing screenplay with its own copyright protection.  The two Godfather sequels also were derivative works of screenplays (these screenplays also being derivative works of the original Godfather film).

Derivative works are very common to the entertainment industry.  We could create an equally complex scenario as the Godfather example above for many musical works.

As a finale note, people can potentially invade your right to prepare derivative if they’re making Fair Use of your copyrighted work.  In plain English, people can make limited, derivative copies of pre-existing works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.  Technically speaking, Mona Lisa with a Moustache would be a potential example of a parody that is also fair use (if copyright protected the original Mona Lisa).

The world of derivative works is an extraordinarily complex area of law and this article only touches upon its diversity.  Artists file lawsuits everyday claiming copyright infringement and derivative rights are a big part of the reason.  Just ask the label for the Harlem Shake.

What other current and popular work out there can you think that may violate a creator’s derivative right?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

The Six Rights of Copyright – Part II: The Right to Distribute

This is the second part in our series on what makes a copyright: the Right to Distribute.  If you’ve not already been so kind, have a look at Part I (the right to reproduce the work).  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re going to individually explore each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

II.  The Right to Distribute

Right to Distribute
Distribution at Work

The exclusive right to distribute ensures that only you, or someone you authorize, can lawfully share your copyrighted work.  Distribution not only covers direct sales of things like CD’s, DVD’s, and music files, but also their leasing, rental, and lending.  This right, when paired with the right to reproduce, gives financial teeth to copyright protection.  Only you, the copyright owner, can profit from the distribution of your copyrighted work through its sale, lease, or rental.  An obvious violation of this right occurs when another sells your work without permission, but also occurs when it is given away, too.  Peer to peer file sharing, internet piracy, and posting to a website are all common examples.

The right also lets you control how the work is distributed.  The copyright owner, for instance, can dictate the price for a sale, the stores where someone can make a purchase, or if he/she lets someone borrow and use it for charitable reasons.

An important restriction on the distribution right is the Doctrine of First Sale.  Once a person buys a physical copy of the copyrighted work, they can resell or otherwise do away with the copy as they see fit.  A buyer, after purchasing a CD for example, owns that CD but not the copyright to the music itself.  They can resell it at a garage sale, give it to a friend, or even use it as a target for skeet shooting. First Sale is the mechanism that allows Netflix and Blockbuster to rent out physical copies (not internet streaming) of movies.   The right to first public distribution is another way of thinking and naming the issue.

The First Sale Doctrine, however, is not without its own limitations:

  • First Sale Doctrine only applies if a copy was lawfully made and sold under the U.S. Copyright Act.  The U.S. Supreme Court is currently considering whether the Copyright Act can ever apply to copyrighted works made overseas.
  • First Sale Doctrine does not permit a person to rent out Computer software or CD’s they’ve purchased.
  • More recently, a federal court also ruled that First Sale Doctrine does not allow the resale of digital music files.

As a finale note, people can potentially invade your right to distribution if they’re making Fair Use.  In plain English, people can make limited distribution of copyrighted works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.

Chime in with any questions or comments that you may have about the right to distribute.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

The Six Rights of Copyright – Part I: The Right to Reproduce

Figuring out what copyright actually protects is truly a dizzying concept.  The fact that copyright actually has traditionally covered a bundle of five exclusive rights makes matters more complicated.  Things became even more confusing when Congress added a pseudo sixth exclusive right in 1995.  These six rights are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re going to individually explore each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

I.  The Right to Reproduce

Right to Reproduce
Pressing of Record

The exclusive right to reproduce your work is the core function of copyright and gives it its name.  Reproduction is the act of producing physical objects that contain or embody the copyrighted work.  Only the copyright owner can make or control reproduction of their work.  Reproduction commonly occurs in the form of publishing books from a manuscript, pressing records from a musical work, and manufacturing DVD’s from a motion picture.  Unauthorized reproduction occurs when someone photocopies that book, samples that music without permission, or pirates a copy of that film off the internet.

The general rule, as stated above, is only the copyright owner can control the reproduction of the work.  There are, however, a couple important exceptions to this rule (aren’t there always exceptions to the rule?):

  • “Fair Use” reproduction: This allows someone to make an authorized copy of the work if it’s for the purpose of education, commentary, criticism, parody of other similar reason.  Keep in mind, though, that the copy is limited to only what is necessary for the goal of fair use.  This means a critique of a music album can only fairly use samples of the music, not make an entire copy of the album.
  • Libraries and educational institutions can make a limited number of copies as provided by law.

An issue of Fair Use is the most common exception that people cite to when making unauthorized copies.  Many defendants claim Fair Use when copyright owners sue them for copyright infringement.

Reproduction of musical works also has its own separate, unique rule from other types of copyrighted work.  Anyone can make their own copies without permission and distribute them once a copyright owner records and makes first distribution of their audio only works (think CDs, not music added to film or TV).  This is a compulsory license.  The copies are legal, even though they are made without permission, but a royalty (9.1 cents per song or 1.75 cents per minute) must be paid to the copyright owner for each copy distributed.  This system is not very practical, however, so different agreements are commonly made.  The Harry Fox Agency is well known for arranging deals between copyright owners and third party distributors.

As a final note, copyright infringement can occur even when someone doesn’t make a complete copy of the work.  The copy need only be substantial and material.  Chopping off parts of a song or omitting a few tracks from an album can still be a violation of the law.

The right to reproduce, of course, would be of little economic value if not paired with the exclusive right to distribute.  Follow along as we next explore that particular right.

Chime in with any questions or comments that you may have about the right to reproduce.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

Top 10 Reasons To Register Your Copyright

The sheer act of creating an original piece of art makes it yours and yours alone.  That unique beat, the words to a song, steps to a dance, or outline to a TV pilot: It’s your intellectual property.  This property, like real estate or a bank account, holds value and you should protect it.  Certainly, if someone is to become famous from your musical ideas or reap vast profits from their sale, it should be you and not the person who ripped your ideas off.

Copyright symbol
Copyright

In an ideal world, no one would steal intellectual property and claim it as theirs. Even in a perfect world people can still innocently and independently create works of art that are functionally identical.  Proving that you created the work of art first would be a difficult task at best.  Nevertheless, just like there are vaults to protect your money and deeds to prove you own land, the law provides a simple way to protect your intellectual property: registering a copyright.  With due apologies to David Letterman, and in no specific order, here are the 10 Ten Reasons to Register a Copyright:

  1. A registered copyright puts the rest of the world on notice.  It’s your legal proclamation to the world that you own certain intellectual property and unauthorized copies are illegal.  Registration warns would be thieves that any larceny of your ideas is at their own risk.
  2. A registered copyright protects your intellectual property from innocent, but unauthorized, reproduction.  A famous example of this occurred when David Bowie sued Vanilla Ice for copyright violation over the hook to “Ice, Ice Baby.”  Even though Vanilla Ice claimed he innocently copied the beat (later retracted), he still owed David Bowie compensation for its use without permission.
  3. A registered copyright gives credit where credit is due.  This is a legal, public record that you are the author of a work of art, not someone else.  Registration vindicates a very important principle beyond issues of money.
  4. A registered copyright let’s you sue for ‘statutory damages’ and attorney fees.  In simple terms, suing for statutory damages means you don’t have to prove that you actually suffered harm from a copyright violation.  A typical lawsuit requires proving harm.  You can sue for up to $150,000 for an intentional violation and up to $30,000 for an unintentional violation.  CAUTION: you must register your copyright within 3 months of making it public to be able to sue for statutory damages.
  5. A registered copyright, in a copyright infringement lawsuit, provides clear evidence that you own certain intellectual property.  This means that the defendant in the lawsuit has the burden of proving that no violation occurred or they lose.
  6. A registered copyright allows you to record the copyright with U.S. Customs.  U.S. Customs in turn will protect you against the importation of illegal copies from other countries.
  7. A registered copyright let’s you stop someone from making illegal copies.  You can obtain a court order that forces an infringing party to cease and desist from their infringement.  This is what occurred when record labels sued Napster.
  8. A registered copyright is necessary to sue for copyright infringement.  In order to take advantage of the system, you need to be a player.  You gain significant legal protection by registering your copyright under the laws of copyright.
  9. A registered copyright provides legal protection beyond death.  U.S. Copyright laws often create a situation where your copyright can still be enforced after you’re long gone.  Although you can’t take riches to heaven, this would be important for someone who wants to provide for loved ones after they’re gone.
  10. A registered copyright saves time and money.  It’s certainly possibly to sue someone for stealing your intellectual property even without a registered copyright, it’s just not a good idea.  For some reason, waving a certificate of copyright, rather than lyrics scribbled on a napkin, just seems to go over better in court.  Registering a copyright makes this legal process much more simple and cost effective when an attorney is necessary.

This is my list of the top 10 reasons to register a copyright.  It doesn’t mean that there are only 10 reasons, though, or that we can agree these are the 10 most important reasons.  What other reasons are there to register a copyright or why do you think one reason is more important than another?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.