Uncloaking the mystery of copyrights
In case you missed it in last week’s Press, you’re free to keep singing “Happy Birthday” without worrying about royalties. I know; you were on pins and needles wondering.
Silly as it may seem, this was actually in debate. A song — lyrics and musical arrangement — can enjoy copyright protection. This popular tune has provided Warner/Chappell Music, Inc. for years with royalties from recording artists and groups using it for profit. (Not that profit would be required for a copyright violation.) On Sept. 22 a federal court judge ruled that while their particular musical arrangement is copyrighted, the lyrics aren’t.
The U.S. copyright is a Constitutional creation. Article I, Section 8 gives Congress 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.” The Copyright Act of 1790, its updated version in 1976, and rights added after the U.S. signed the Berne Convention in 1989 fleshed out the details of that security. These extended copyright protections for most comes to “life plus 70” years, and across the globe. For works-for-hire and anonymous works, it’s 95 years from publication or 120 from creation, whichever is shorter. After that, previously copyrighted works, such as the lyrics to “Happy Birthday” published in 1911, enter public domain.
Who is protected isn’t always clear. I’m a freelance writer and employ myself, so I own the copyrights to my journalistic endeavors. That’s different for most salaried folks. Unless policy or contract says otherwise, what is created by employees is owned by their employer. These presumptions can be changed by contract. When I was hired to create content for another website, the company who paid me retained the rights to those articles.
The other side of the rights coin is prohibition. What’s prohibited by copyright? Copying, obviously, but it also prohibits distributing it to others, performing (e.g., a play, song, or monologue), displaying, translating, adapting, and licensing a copyrighted work. So technically speaking, you can’t do any of that with this column without my permission, because the moment I created it I copyrighted it.
That’s right. No little circled “c” or other act on my part is required. It’s automatic (although registering it with the Library of Congress makes it easier to successfully sue). This goes for anything you create, but it has to come out of your head; copyrights protect expressions in some medium, such as paper, website, CD, etc., not ideas. Nor does copyright protection extend to facts, discoveries, methods, or processes. These things belong to all of us in concept. But if we use or combine them into a tangible expression, such as this column, song lyrics, or Martin Luther King’s speech, that is copyrighted for the statutory protection period.
Except for “fair use.” Fair use is why teachers can use this column in a classroom, or more likely Dr. King’s speech, and why I can use website and textbook data to write about copyright law (government stuff is public domain, because government is us). Copyright is subject to fair use so that newsrooms can inform the public, students can learn, and researchers can have access to material — all with the idea that public interest outweighs private rights. Even the Constitution’s idea of protection is cast in the light of public interest, rather than private right — “to promote the progress of science and useful arts.”
The trouble with fair use is that isn’t always clear, played out in courtrooms case by case. Analysis tends to focus on whether the “use” was educational, limited, not for profit or harms the original work’s profitability, and the nature of the work. Was it more newsy, technical, or factual, or was the work’s purpose more creative? The wise play it safe and get permission before using copyrighted material. These days with email, asking is not as daunting as it once was. Just give credit where credit is due, and cite the original.
For more information, see Copyright.gov. And if by some slim chance you want to reproduce this column, feel free.
Sholeh Patrick, J.D., is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.