This comprehensive, authoritative and accessible book enables creators to understand the legal rights and safeguard their work from a wide variety of risks in both cyberspace and traditional media. It explains major developments in the applicable law and in the publishing, communications, art and entertainment businesses so you'll be able to confidently secure your work, negotiate contracts and avoid lawsuits.
This essential book guides you through the major legal areas of special concern to creators: copyright and other legal rights; libel, privacy, obscenity and other legal risks; contracts; the cyber revolution; and business and tax matters affecting creative people. Whether you are an author, artist, photographer or are in another creative field, this approachable guide will help you become legally savvy without having to wade through dense legal jargon or rely on Google searches or Wikipedia.
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About the Author
Kenneth P. Norwick is a nationally recognized laywer, author and tracher who specializes in the legal subjects covered by this book. His clients have included His Holiness the Dalai Lama, Annie Leibovitz, Mitch Albom, Playboy magazine and the Association of Authors' Representatives.
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THE CONSTITUTIONAL FOUNDATION
The Constitution of the United States is not only "the supreme law of the land"; it is also the original source of all other law in this country. In Article I, for example, the Constitution spells out the "legislative powers" that are vested in Congress. It is this article that grants to Congress the principal power to enact the laws that ultimately affect the business and personal lives of all of us. And in the Bill of Rights, the Constitution sets forth the fundamental rights and freedoms of all people in this country, rights and freedoms that cannot be denied or abridged by Congress in its laws or by any other branch or level of government.
Unlike most groups or categories of Americans who do not find specific reference to their callings in the Constitution, creative people are doubly blessed: They can point to two separate, and important, references to their activities in the Constitution. Indeed, these two constitutional provisions establish the foundation for the most important legal rights of all creative people.
The first reference, in Clause 8 of Section 8 of Article I, grants Congress the legislative 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."
This clause has empowered Congress to enact copyright laws, which have provided creative people the essential protection they need to continue to create since the first Congress. And although the clause refers only to "authors" and "writings," it is clear that, as the Supreme Court has put it, the copyright clause "may be interpreted to include any physical rendering of the fruits of creative, intellectual, or aesthetic labor." However, as will be discussed in Chapter 2, it is clear that in the copyright laws it has passed, Congress has not protected all the fruits of such labor that it might have.
The second reference to the activities of creative people is in the First Amendment, which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press." Especially because it is now clear that this provision applies as fully to state and local governments as it does to the federal government, it is easy to agree with the Supreme Court that the First Amendment is "the matrix, the indispensable condition, of nearly every other form of freedom."
The scope of the First Amendment is extensive. Most obviously, it applies to speech and writings on "political" matters. As former Justice Hugo L. Black put it: "In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government."
Perhaps of equal importance to most creators, it is clear that the First Amendment is not limited to "political speech." As the Supreme Court confirmed in a major decision: "Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee."
Read literally, the First Amendment prohibits any law that would abridge the "freedom of speech, or of the press," which presumably includes all the creations of all authors and artists. But if anything is clear about the meaning of those words, it is that they do not mean what they seem to say and that the First Amendment has never been construed as "absolute" in its force and effect. Instead, as will be discussed more fully in Chapters 2 and 3, the First Amendment does not necessarily protect all speech and writings. Nevertheless, it and the copyright clause, along with the laws they have engendered, are the sources and bulwarks of the most fundamental rights of all creators.
There is at least a potential conflict between the copyright clause and the First Amendment. Thus, the latter's prohibitions could be read to encompass the freedom to write or speak whatever one wishes, including the writings of others, while the copyright clause makes clear that Congress can prevent such borrowing. As a leading authority on copyright has posed the dilemma: "Does not the Copyright Act fly directly in the face of [the First Amendment's] command? Is it not precisely a 'law' made by Congress which abridges the 'freedom of speech' and 'of the press' in that it punishes expressions by speech and press when such expressions consist of the unauthorized use of material protected by copyright?"
Somewhat surprisingly, the courts have not found it necessary to determine directly whether these two constitutional provisions conflict. However, it is generally assumed that if and when that effort becomes necessary, the courts will not find that the legal protections afforded creators by copyright laws violate the First Amendment but will reconcile whatever conflict exists. Indeed, many courts have at least implicitly done so through the "fair use" exception built into copyright law, referring to the constitutional purpose of the copyright clause — to promote knowledge — and by adhering to the well-established rule that copyright does not protect "ideas" but only "the particular selection and arrangement of ideas, as well as a given specificity in the form of their expression."
It seems clear that creators will continue to be able to claim the protection of both the copyright law and the First Amendment. We shall now turn to the rights afforded under copyright law.
COPYRIGHT AND OTHER LEGAL RIGHTS
Whether we know it or not, every creative person — writer, artist, photographer, dramatist, etc. — depends on (and really should understand) the concept of "copyright." Without copyright, creative people could not survive — at least as creators — and the world would be deprived of their creations. Happily, copyright exists, and creators — and the world — don't have to face that unthinkable alternative. But what exactly is copyright, and what should creators know about it?
In brief, copyright refers to the legal protection that is provided to most (but not necessarily all) created works — called in the current federal Copyright Act "works of authorship." It is a kind of monopoly the law gives to creative people for their creations. As we will see below, to be protected, the work must be "fixed," that is, on paper, on computer disk, on film, on canvas, etc. — it can't be merely ephemeral or just spontaneously performed — and it must contain a minimal amount of "originality." And, as we will also see below, although the law's "protection" is extensive — it generally prevents others from copying (in whole or in part, directly or indirectly) your work — it is not absolute, the most important exception being the doctrine that allows others to make "fair use" of your work.
Where does "copyright" come from?
Copyright is a creation of law, which means it comes from the folks who write (and then interpret and implement) the laws that govern those who are subject to them. The first copyright "law" can be traced to 1710 England, but for our purposes we will start with the birth of this nation. Specifically, Article I of the U.S. Constitution, which created and granted specific powers to the new Congress, authorized Congress "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."
Pursuant to that power, Congress enacted the first Copyright Act in 1790. Since then, there has always been a federal copyright law in the United States, with major revisions made when developments in communications rendered the existing law inapplicable or anachronistic. On January 1, 1978, the first major revision of our law in almost 70 years took general effect. The Copyright Act of 1976 was the result of more than 20 years of study, drafting, and compromise by the various (often conflicting) interests directly affected by copyright law. But it's now more than 40 years old — it was enacted at a time when words like "Internet," "software," and "websites" had little or no relevance to copyright or creators. Many believe another major overhaul is needed, and the U.S. Congress is now taking preliminary steps toward one.
What should all creators know about copyright?
This chapter will review the kinds of works that are eligible for copyright protection, the nature of the rights that copyright confers, the "fair use" doctrine and the formalities that must be complied with to secure copyright protection. It will also discuss legal protections available to creators apart from copyright. In a separate chapter, the book will discuss how our current copyright law has adapted to the cyber revolution, which happened after the current Act came into effect.
Do we "own" the copyrights in our works?
Copyright is a form of legal protection given to a wide variety of creative works, but it is also "property" that one "owns," much as one owns a car, a computer, or shares of stock. This means we can sell it (in whole or in part), or just "license" to others some or all of the rights it provides, or give it away (including in our wills) — or just keep it to ourselves, so that no one ever gets to see the work covered by the copyright. Under current law, only one kind of copyright is available to creative people for virtually all creative works: the protection afforded by the federal Copyright Act of 1976. Creative works either enjoy the protection of the Act or they have no copyright protection.
Before 1978, there were two systems of copyright available to creators. The first, known as "common law copyright," was available through state law and applied to works that had never been published or otherwise publicly disseminated. The second, the federal Copyright Act of 1909, applied mainly to published works. With the enactment of the 1976 Act, virtually all prior systems of common law copyright were abolished. In legal parlance, the new act substantially "preempted" common law copyright protection.
How does copyright protect creators?
The protection of the Copyright Act is extensive. Anyone who uses a copyrighted work in a way that constitutes an infringement may be subject to civil remedies, including an injunction, forfeiture of the infringing items or the obligation to pay the copyright owner all profits from the infringement, money damages, and the owner's attorneys' fees. In certain cases, the infringer may also be subject to criminal penalties. Further questions in this chapter deal with what constitutes infringement.
What kinds of works can be protected by copyright under the Act?
Section 102 of the Act states: "Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." There are two fundamental requirements for copyright protection: The work must be "original," and it must be "fixed" in a "tangible medium of expression."
What is the "originality" requirement?
This requirement is relatively undemanding. To be sufficiently original, a work does not have to be novel, unique, or ingenious, as a patentable invention must be. It must simply have been created or originated by an "author" rather than found or identically copied from another work, and it must present more than a trivial variation on prior works from which it is derived. Perhaps the best summation of originality was provided by Judge Learned Hand, who wrote that "if by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." To illustrate how limited the requirement of originality is, the Copyright Act states that compilations or anthologies of previously copyrighted (or public domain) works are eligible for copyright, originality being in the selection and ordering of the included works. Similarly, a collage composed of found objects is the original work of an artist who created the work through a process of selection and arrangement, and is copyrightable.
A major decision by the Supreme Court illustrates the point. The case involved a telephone company in rural Kansas that simply copied the directory of a competing company. That company sued for copyright infringement, but the Supreme Court, reversing two lower courts, dismissed the case. Emphasizing the requirement of originality, the Court said: "The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has just discovered its existence." Copyright protection for a compilation in which the facts speak for themselves, the Court held, is "thin" because the "only conceivable expression is the manner in which the compiler has 'selected and arranged the facts.'" The Court specifically rejected a line of lower court cases that upheld copyright protection for works that were derived from "the sweat of[the compiler's] brow," holding that "the principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection." The Court found the plaintiff's directory did not have that degree of originality and thus was not entitled to copyright protection.
Every work must be evaluated on its own to determine whether it is sufficiently original. There is no one formulation or standard that articulates the requirement. The courts have found that mezzotint reproductions of eighteenth- and nineteenth-century paintings, a scale-model reproduction of Rodin's Hands of God sculpture, and computer answer sheets for standardized tests needed some judgment, skill, and expertise for their creation and were "original" enough for copyright.
What is required for a work to be "fixed in a tangible medium of expression"?
According to the Copyright Act, "A work is 'fixed' in a tangible medium of expression when its embodiment in a copy ... by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The statutory definition is intentionally broad so that it will be applicable to modes of expression developed in the future that are unknown today.
Preparatory works such as sketches, drafts, models, and notes, as well as finished works such as manuscripts, paintings, sculptures, motion pictures, and audio- and videotapes, satisfy the fixation requirement. But oral recitations or performances, however original and otherwise eligible for federal copyright, do not satisfy the fixation test. An unauthorized taping of an oral recitation would not be eligible for copyright because the statutory definition requires the "embodiment" to be "by or under the authority of the author." (Even though such an unfixed rendition will not qualify for federal copyright protection, it may — as is discussed later in this chapter — qualify for other forms of legal protection.)
What works are protected?
Section 102 of the Act provides a partial answer: "Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; pictorial, graphic, and sculptural works; (5) motion pictures and other audiovisual works; and (6) sound recordings." Most of those terms (for example, "literary works" and "pictorial, graphic, and sculptural works") are given more specific definitions in the Act. "Literary works" are defined as "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tape, disks, or cards, in which they are embodied."
Significantly, the six categories listed in Section 102 do not exhaust the kinds of works that may qualify for copyright protection. The introduction to the listing contains the word "include," which the Act defines as "illustrative and not limitative." Still, not every creative work qualifies for copyright protection.
WHAT'S NOT PROTECTED BY COPYRIGHT?
Unfortunately, there is no clear and concise answer. The 1976 Copyright Act provides several categories or descriptions of works that are not subject to copyright protection. But the precise meaning of the statutory language is frequently difficult to discern and is open to interpretation and debate. Section 102(b) provides: "In no case does copyright protection extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." This is a very important limitation on copyright protection.
Excerpted from "The Legal Guide for Writers, Artists and Other Creative People"
Copyright © 2017 Kenneth P. Norwick.
Excerpted by permission of Page Street Publishing Co..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
CHAPTER 1. THE CONSTITUTIONAL FOUNDATION,
CHAPTER 2. COPYRIGHT AND OTHER LEGAL RIGHTS,
CHAPTER 3. LIBEL, PRIVACY, OBSCENITY, AND OTHER POSSIBLE LEGAL RISKS,
CHAPTER 4. CREATORS' RIGHTS IN CYBERSPACE,
CHAPTER 5. CONTRACTS INVOLVING CREATIVE PEOPLE,
CHAPTER 6. BUSINESS AND TAX MATTERS AFFECTING CREATIVE PEOPLE,
ABOUT THE AUTHOR,