COPYRIGHTS 101: Basic Building Blocks for Understanding Copyrights
Posted on October 30, 2011
COPYRIGHTS 101: Basic Building Blocks for Understanding Copyrights
In order to establish a solid foundation for copyright compliance, Christian leaders need to have a firm grasp on three basic building blocks:
1) What is a copyright, and what works and rights do the U.S. Copyright Law protect (Article 8, Section 8, Clause 8 of the U.S. Constitution).
2) What are the types of creative works that can be copyrighted
3) What are the exclusive rights of copyright owners and how do they impact the church’s use of copyrighted material.
1. Building Block #1 - Copyright Definition - “Exactly what is a Copyright or Intellectual Property?” Intellectual property refers to intangible properties that are protected under the U.S. Copyright, Patent, and Trademark Laws. Let’s look at an example of tangible property vs. intellectual property. A copyright is a particular kind of property right.
It’s often difficult to grasp the fact that a copyrighted work is someone’s property, because it is an intangible or intellectual property, rather than physical property, like a house. There are many similarities, however between a copyright, like a song, and a house.
● I can sell my house and I can sell my song. For example, when Michael Jackson bought several hundred Beatles songs for $47 million dollars.
● I can own part of a house and I can own part of a song. Co-authors of a song have joint ownership of that song.
● I can lease out my house and I can lease out use of my song. For example, I can license a web site to use my song for a set time period.
● Like a house, you can inherit a song from a favorite aunt or donate a song to your church.
For another example of tangible property vs. intellectual property, let’s look at an iPad vs. a novel, or literary work. An iPad is a physical piece of equipment you can see, touch, and feel. If you purchased an iPad, you would not expect anyone to take, borrow or use it without asking your permission. The novels or songs that you have purchased (hopefully) and loaded onto your iPad are copyrights or intellectual properties and are also owned by someone. Although they are intangible assets that cannot be touched, the owner of the works has the exclusive right to reproduce or make copies of them, or authorize a third party to do so. The right to reproduce that novel, however, cannot be touched and felt like the iPad or physical book because it is an intangible right. Nonetheless, the author of the literary work has, from the time of the novel's creation, the exclusive right to reproduce (or adapt, display, distribute or perform) the novel. The author's exclusive rights can be very valuable and can be assigned to a third party, such as a publisher, if the assignment is in writing.
“Copyright literally means the right to copy. The term has come to mean that body of exclusive rights granted by statute to authors for protection of their writing. It includes the exclusive right to make and publish copies of the copyrighted work, to make other versions of work, and, with certain limitations, to make recording of the work and to perform the work in public,” according to definitions at http://www.copyright.gov/help/faq/definitions.html.
The rights described in our United States Copyright Act derive from the United States Constitution which, in Article 8, Section 8, Clause 8, grants our citizens special protection: “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.” Consequently, those who create “original works of authorship fixed in any tangible medium of expression” have, according to the Copyright Act [Section 102], created works subject to Copyright protection.
2. Building Block #2 - What can be copyrighted? Section 102 of the Copyright Act defines copyrightable “works of authorship” to include:
- Music – Music including any accompanying words. Lyrics, notes, and composition in some published format. Musical works include both original compositions and original arrangements or other new versions of earlier compositions to which new copyrightable authorship has been added.
- Sound Recordings – Aural reproduction of some material (which may or may not itself be copyrighted). They are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work. They may include recordings of music, literary works, drama, etc. For example, Michael W. Smith’s recording of Paul Baloche and Lenny LeBlanc’s “Above All” would be a Sound Recording copyright and the actual composition would be a Music copyright; in this case, the Sound Recording is owned and copyrighted by a record label, and the Music is owned and copyrighted by a different publishing company.
- Literary works – Words captured as a book, periodical, poem, essay, spoken work (i.e. speeches), etc. and include non-dramatic textual works with or without illustrations. They may be published or non-published. Computer programs and databases also are considered literary works. Plays, dramas, and screenplays are not in the literary works category.
- Visual arts – pictorial, graphic, or sculptural works, including 2-dimensional and 3-dimensional works of fine, graphic, and applied art. Examples include photos, visual images, maps, illustrations, cartoons, maps, sculptures, etc
- Choreography / dance / pantomime - Choreography is the composition and arrangement of dance movements and patterns usually intended to be accompanied by music. As distinct from choreography, pantomime is the art of imitating or acting out situations, characters, or other events.
- Drama – the play itself including dialog, stage direction, etc. The Drama copyright may also include the musical score. Individual musical numbers may also be copyrighted as a Music copyright. Dramatic works such as plays, screenplays, and radio or television scripts are works intended to be performed. Dramatic works usually include spoken text, plot, and directions for action
- Audio Visual - Video / films – Series of related visual images that impart an impression of motion, which may or may not be accompanied by sound, such as films, videos, slides presentations and video games.
- Architecture – An original design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.
It’s vital for church leaders to have knowledge of all the types of works that can be copyrighted, because of the increasing use of a variety of creative works and the growing risk of liabilities. Copyright infringement penalties can be severe, up to $150,000 for each infringement. Fifteen years ago, churches primarily reproduced and used music (only one of the eight copyrightable works), but today more innovation and creativity has resulted in churches using just about every type of work listed above.
To understand copyright law and how it impacts your ministry, you need to understand the six rights that are exclusive to the owner of a copyrighted works, as outlined above. These rights apply to all works that can be copyrighted. If you want to engage in any of the activities that are the exclusive right of a work’s owner, you need to get permission to engage in that activity.
Only the owner of a copyrighted work is allowed to reproduce or copy that work.
Examples: photocopying lyrics, rehearsal track CDs, creating a digital copy of a video.
Making derivative works
Only the owner of a copyrighted work is allowed to create new works that are “based” on a pre-existing work. U.S. copyright law describes this 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.
Examples: arrangements of songs, adaptations of plays into movies.
Only the owner of that work make can make that work available to the public by sale, rental, lease, lending or gifting. There is a “first sale” doctrine that limits the work’s owner’s control to the “first sale” of a copy. This means that if you buy a CD, you are allowed to then re-sell that CD without getting the permission of the work’s owner.
Examples: giving out CDs of worship service, making a video podcast of worship services and distributing online.
The owner of a work controls if and when that work will be performed publicly. US copyright law defines a public performance as:
...an instance of music being performed “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” That is the legal definition and most church performances, with the exception of during a religious service, fit the criteria.
Public performances extend to more than just in-person performances. Playing music on TV, radio and the Internet also are under the control of the work’s owner. Examples: concerts, music played at church social events, on-hold music.
The owner of a work controls if and when that work will be displayed publicly. This right is similar to the performance right but it is for visual works such as photos or videos. The criteria for a public display are the same as those for public performances detailed above.
Examples: hanging photos in an office building, displaying a photograph on an overhead during a worship service.
Digital recording performance
The owner of a sound recording controls if and when that work will be transmitted digitally. This is a relatively new right that was added in “The Digital Performance Right in Sound Recordings Act of 1995″.
Examples: streaming on the Internet a digital sound recording featured in a worship service; Internet radio.
It’s especially important to understand the six exclusive rights, so that you can fully understand what copyright types and rights are covered in the various available blanket licenses for churches and ministries.
Requirements for Copyrighting Works of Authorship
What are the requirements for copyright protection of a work of authorship?
● The work must be original and exhibit minimal creativity.
● It must be fixed in a tangible medium of expression (a form that can preserve the work so that it can be read back or heard, either directly or with the aid of a machine; e.g., an audio digital file, CD, or lead sheet).
● After March 1, 1989 works no longer require a copyright notice (© or the word copyright, the author´s name and the year of publication). Copyright registration is also no longer required. However, it is wise to affix a copyright notice to works so that the owner of the copyright can be easily identified.
Here is a list of what can NOT be copyrighted:
● Works not fixed in a tangible medium of expression (speeches that are not recorded or written down, music that has not been recorded or published).
● Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices. For example, an idea for a story is not copyrightable, but the first chapter of a novel written down is copyrightable).
● Titles, names, short phrases and slogans; it’s possible to protect these by trademark law, but not copyrighted. For example, the title of a song is not copyrightable.
● Works consisting entirely of information is common property with no original authorship. For example, a telephone directory or standard calendar.
● A choreographic work, whether original or not, is not subject to copyright protection unless it has been videotaped or notated. The same applies to speeches that have not been transcribed before or after they are given, as well as any other types of performances.
● Contrary to what you might think, fashion (that is, a shirt, dress, or other article of clothing) is not protected by copyright law. Despite the fact that Copyright Law protects such things as architectural design works (Circular 41) or works of the visual arts (Circular 40), fashion is all about clothing and accessories, which under Copyright Law are considered “useful articles." It is possible however, to copyright a specific fabric pattern (Burberry plaids for example), but not the actual dress. And, it should be noted that while designs can’t be copyrighted, they can be patented.
Susan Fontaine Godwin is an educator and long-time member of the worship community with 26 years of experience in the Christian music industry, church copyright administration and copyright management. She is the President/Founder of Christian Copyright Solutions, whose mission it is to help Christian organizations be fully copyright compliant through administration, consultation and education. For more free information on copyright compliance and the church, visit www.copyrightcommunity.
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