Journalist's Guide

A Brief Look at Copyright Law Copyright, like freedom of speech, derives from the Constitution, which affords Congress the power to protect the writings of authors against piracy. Copyrights are generally recognized internationally pursuant to treaty and foreign laws. Copyright protects “original works of authorship fixed in any tangible medium of expression,” which includes literature, music, drama, choreography, motion pictures, audio recordings, and even software and architectural works. “Copyright,” which protects fixed expressions, should be distinguished from “trademark,” which protects the good faith between a company and its customers, and “patent,” which protects invented processes. However, like trademarks and patents, copyrights are property, so they may be bought, sold, assigned, or licensed. Copyright protects expressions of information, not mere ideas, and not mere facts; some element of original composition is required. Thus, a sportscaster who gives the score of a big game being carried on another station does not infringe on the other station’s broadcast copyright, but using excerpts from the other station’s coverage could infringe a copyright. As a general rule, the creator of a work owns the copyright. An outright transfer must be in writing. But, an important exception is for “works made for hire,” when the creator’s employer owns the copyright. A list of “work made for hire” factors determines if the work was created within the scope of employment, including the control over the project, relationship with the hired party, how the hired party is compensated, and how the work is created. For works not made for hire that secured copyright protection on or after Jan. 1, 1978, protection lasts for the life of the creator plus 70 years. For works made for hire copyrighted in that time, protection lasts 95 years from first publication or 120 years from time of creation, whichever comes first, then through the end of the calendar year. Different statutory durations pertain to works copyrighted prior to 1978, and other changes may be legislated, so consult an attorney if duration is an issue. There are two important ways copyrighted materials of another may be used lawfully. One way is with the consent of the copyright holder. Consent must be clear and obtaining it in writing can help avoid legal problems. Merely giving credit to the copyright holder is not consent. The second way is to rely on your use being a “fair use” for which consent is not required. “Fair use,” which is merely a defense to an infringement claim, might be available, for example, in news reporting, commentary, and scholarship. The answers to four questions help define whether “fair use” applies to a situation. (1) What is the purpose and character of the use? Pure political commentary is more likely to contain fair use than commercial expression.


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