By Catherine Abbott
When Great Britain passed the Statute of Anne in 1710, which mainly protected the printing and dissemination of literary works, there was no way to predict the technological mediums of expression and communication that would be developed in the twentieth century and beyond. While copyright law has evolved over the years, the knowledge of copyright by both authors and users often lags behind.
The United States currently abides by the Copyright Act of 1976 (including amendments), which grants a set of exclusive rights to the author(s) of a creative work. As soon as you put your original work down in a tangible medium, it’s technically protected by copyright. The work, however, must show some minimal level of creativity to be held as copyrightable in a courtroom.
So, when writing your next paper or composing your next presentation, don’t just assume you can use content found in print or online. First consider whether or not the content is creative and thus, copyrighted. If so, you’ll likely need permission to use it.
Photographs, although capturing existing objects, are copyrightable. In the case of Burrow-Giles Lithographic Co. v. Sarony in the 1880s, a photograph of Oscar Wilde was found to be original and artistic through its positioning, arrangement, and lighting. But be careful: photographic releases are likely needed as liability for the artist, especially with celebrities and minors.
Music, including compositions and sound recordings, is also protected by copyright law. Sampling is a common practice among musicians, but artists don’t always get permission before recording. Vanilla Ice settled out of court with Queen and David Bowie for the similarity of bass lines in “Ice Ice Baby” and “Under Pressure.” George Harrison was found guilty of “subconscious plagiarism” when his “My Sweet Lord” sampled from The Chiffon’s “He’s So Fine.” Parody, however, is an exception to copyright law, which is how Justin Timberlake and Jimmy Fallon can creatively remake well-known pop songs on Saturday Night Live, not to mention “Weird Al” Yankovic’s comedic career.
Computer programs, including video games, are unique, creative expressions of words and numerical symbols, and are, as such, copyrightable. In 1982, the court ruled that “Meteors” did not plagiarize “Asteroids,” because the genre of shooting down space rocks with a spaceship was not novel. Later, in the 2012 case of Tetris v. Mino, the Court found that Mino, who cloned the creative elements of Tetris, was guilty of plagiarism.
Databases can also be copyrightable if the compilation shows creativity. A phonebook was deemed not copyrightable in Feist v. Rural Telephone Service, because a recording of names and numbers falls short of minimum creativity, but an arrangement of yellow pages in a Chinese-American community telephone directory was found to be copyrightable because of its originality.
Like databases, tables and graphs are also generally mere recordings of data and, as such, not protected by U.S. copyright law. However, if a table or graph is expressed in a way that’s arguably creative, e.g., through its organization, design, or supplemental graphics, then it would be copyrightable as a “pictorial, graphic, [or] sculptural work.”
From books to boat hull designs, original works are copyrighted if creative. If usage is not allowed through exceptions like fair use or a Creative Commons license, then you need permission from the copyright holder to use the copyrighted material, whether that’s through transference of all exclusive rights or just some.
So whether you’re an author looking to protect your work or a speaker looking to spruce up your presentation with music and videos, avoid messy, embarrassing litigation and be safe instead of sorry.