The Right to Copy

May 21, 2011
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It is occasionally a source of some surprise to people when they find out that I am, in my day job, a practicing attorney. And one of the things that interested me most in law school (and since) has been copyright. For the last few days, I’ve been thinking that it would be a good idea to have a basic primer on copyright up on the site.

1) it’s a good idea for people who are writing and producing content to have an idea of what their rights are.
2) it forces me to refresh my on understanding and thinking about it.
3) it may have an impact on some of the things that FIP will be doing in the future. (This is one of those foreshadowing things I hear so much about I think… have I mentioned that it would be a good idea to subscribe to FlagShip sooner rather than later?)

But before we go any further, I need to make a few disclaimers.

1. I am a lawyer, but I am not your lawyer. Your situation may be different. You should really talk to your own attorney.
2. This is not intended to and I specifically disavow any intention to create a lawyer-client relationship. Merely reading this post does not make me your lawyer.
3. We’ll be dealing fairly exclusively with US copyright law – partly because that’s what I know, and partly because the principles are going to be similar due to some international treaties. We do get hits from around the world, so if you’re not in the US (or if you are), you need to make sure that you’re not relying on this. It’s not intended as legal advice. It’s a basic primer.

Okay?
Okay.

What is copyright?

Copyright is just what the name implies. The Right to Make (and distribute) Copies. There are those who will tell you that copyright is a bundle of rights, and that there’s tons and tons and tons of rights you can break off from copyright, and from a certain perspective, that’s got some truth to it, but looking at the actual statute, 17 USC § 106, and subject to certain limitations, a copyright holder has the exclusive right to…

1) reproduce the copyrighted work in copies or phonorecords.

2) to prepare derivative works based upon the copyrighted works

3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

5) in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural worse, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

6) In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

And that’s pretty much it for basic copyright. Those six things are what is protected by “copyright”. So, if you want to distribute copies of your short story? you have to do 1 and 3.

Want to do an audio or podiobook?
That’s 2, 1, and 3. Maybe 6, if you’re streaming from a website.

Someone wants to make your book into a movie? And show it in theaters?
They need the right to do 2, 1, 3, and 4.

And that’s it. There are rights to translate something into another language (2), make a movie or a play (2), make an audio book (2), and so on and so forth, but those are all different types of derivative works.

VOCABULARY TIME! From 17 USC § 101, a “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arangement, dramatization, fictionalization, motion picture version, sound recording, art representation, abridgment, condensation or any other form in which a work may be recast, transformed, or adapted.

Clear as mud? Next week, I’ll talk a bit about how you get a copyright, and how long it lasts. If you have questions, drop a comment, or discuss it on the forums.

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