Copy That (Part 2)

If you didn’t get enough of it last time, here are some more fun facts about copyrights! For example, did you know that like being a Scientologist or owning a gun, copyright is protected under the United States Constitution (Article 1 Section 8)? Or that Walt Disney successfully lobbied to extend copyright protections to their current length in order to preserve its copyright on Mickey Mouse. Seriously, you can’t make this stuff up. 

mickey-mouse-copyright

(image via: https://www.uprinting.com/blog/legal-concepts-need-know-content-marketing/)

Copyrights Never Die. They Just Pass into Public Domain

Seventy years after you die, all of your work will pass into the public domain or PD as they say. Public Domain means we the people now own your work and can do whatever we want with it for free. This is great for filmmakers who want to do a spinoff sequel to Hamlet or use Beethoven’s Moonlight Sonata in their soundtrack. But be forewarned, while Beethoven’s music is PD, specific recordings of the Moonlight Sonata are copyrighted by the person who recorded them. You’ll have to make your own recording of Beethoven’s music.

Interestingly, too, while you can make an adaptation or derivative work from something in the public domain, you can’t use any elements from other derivative works that are still copyrighted. The Wizard of Oz is a great case study. The original L. Frank Baum works are public domain, but the 1939 Warner Bros. movie is not. What’s the difference? For one thing, L. Frank Baum does not describe the Wicked Witch of the West as green. So when Disney made its Oz the Great and Powerful a few years ago, they had to be careful not to use Warner Brothers copyrighted shade of green. Read more about The Wizard of Oz copyright here.

(Sidebar, my first job in television was securing music rights for a high school band concert. We needed separate rights to broadcast the music and rights to synchronize the music to the televised concert.)

Fair Use

Fair use allows you to use part of copyrighted works for specific, limited purposes. Courts generally consider four criteria in fair use litigation.

1) Nature of the use. Educational and informational purposes are generally permitted while commercial purposes are generally not. Since I run a free, educational blog, I’m not too concerned about including a copyrighted image in a post to help illustrate a point. (That being said, if you own the copyright and were not credited or don’t want to be associated with my blog, I’ll gladly remedy the situation.)

2) Nature of the copyrighted work. While audio and video recordings may be copyrighted, audio and video recordings of newsworthy events (facts), may not be copyrighted. Time magazine, for example, tried to purchase the rights to the Zapruder film–the assassination of President Kennedy. But as a matter of fact and public record, the court decided the film should be in the public domain.

3) Amount of the copyrighted work. Screening the first scene of Saving Private Ryan to educate film students on a particular cinematography technique is probably okay. Screening all of Saving Private Ryan to a packed theater, not so much.

4) Damages. Of course, all of this comes down to money. If you start selling pirated Game of Thrones DVDs or Game of Thrones themed T-shirts, you’re taking money out of HBO’s pocket. But if you reprint a promotional picture for educational or news stories, you’re probably okay.

4B) Parody. But wait there’s more! One dicey way that you can ride off of the success of copyrighted work is parody. That’s how we end up with all of those porn parody gems. The key here is that your new copyrighted work is parodying a specific other work, but not infringing on the same market. That is to say, people who want to watch the adventures of Jack Sparrow will not intentionally purchase Pirates XXX.

PiratesXXX

(image via: https://en.wikipedia.org/wiki/Pirates_(2005_film))

Similarly, no one looking for a bowl of Campbell’s tomato soup will accidentally purchase Andy Warhol’s famous paintings. They’re different markets.

Campbells_Soup_Cans_MOMA

(Image via: https://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans)

Other Intellectual Property

Intellectual property rights are largely covered in three categories: copyrights, trademarks (which I mentioned briefly in the previous post), and patents. Patents are distinct from copyrights in that copyrights protect “fixed works of authorship.” Patents protect processes. If you make the world’s first 5D film, you can copyright the film. But you’ll want to patent the process for making all future 5D films.

Copywriting

Copywriting is different than copyrighting. Writers may work on copy (text) for advertisements or articles. That’s called writing copy. And while copywriting may be copyrighted, make sure you’re using the right copy when writing copy about copyrights.

More fun with copyrights

Phew! That was exhausting. But the fun’s not over. www.copyright.gov actually does a really good job explaining copyrights. I highly recommend checking it out if you have questions.  In the mean time, get out there all of you creative people and fix some original work in a tangible form!

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