|What is a Copyright?|
Much like trademarks, people encounter copyrights every day without realizing it. The morning newspaper is copyrighted, as is that television show the kids
watched while getting ready for school and the songs to which you listened on the radio while driving to work. The DVD you rented last night was copyrighted
and as were the books you bought at lunch.
A copyright is protection afforded an idea. This idea can be in the form of a book, a poem, a drawing or painting, a song or a melody, or a computer program. Copyrights were intended to give artists, performers and authors the exclusive opportunity to profit from their works without others appropriating their works for profit at the same time. Today, copyrights have become a form of corporate welfare through the Sonny Bono copyright extension and other extensions. Originally the copyright time limits were much shorter than those of today. Now, “life of the author plus 75 years” is the law. W-a-y too long. This extended time span controverts the original intention of artistic works passing to the public after a reasonable time. Congress, in its infinite wisdom and superior knowledge, and pockets full of cash from the entertainment industry, has extended the time from fairly limited to infinity and beyond. Remember, Congress passes legislation based upon the needs of those who contribute to their re-election coffers, not upon the needs or rights of their respective constituents.
Copyrights protect the rights of artists, authors and others who creatively express ideas. An idea itself is not copyrightable; only the presentation of that idea. A simple analogy of this is the idea of a person with super-human powers who can fly through the air. Superman as an embodiment of this idea is copyrightable. If the actual idea were copyrightable then one person's thoughts could stifle the entire creative genre of super heroes, or other categories. Then there would have been no Mighty Mouse, no Captain America and no Greatest American Hero. The idea of Donald Duck would have eliminated Daffy Duck and Mickey Mouse would have prevented Tom and Jerry, etc.
The Constitution of the United States made American copyrights the exclusive playground of Congress. Copyrights are federal issues except for a very, very narrow area often referred to as “common law copyrights” that are left to the Many States. Remember, the original intent of copyright law was to give the artist and author the exclusive opportunity to profit from their work, for a reasonable amount of time, and then that work would pass into public domain.
A copyright doesn't cover everything. You cannot copyright an elephant but you can copyright a stylized drawing of an elephant. You cannot copyright a word but you can copyright the unique manner in which that word is presented. The word "YANKEES" in gothic lettering is a copyright of Major League Baseball.
Copyright law, like trademark law, grants a lot of exclusive rights to the holder of the copyright. It also states specific exceptions.
The First Sale Doctrine is an important part of copyright law. Without it, owning something would be very messy. The First Sale Doctrine says that once the owner of a copyrighted item sells it, or gives it away, the owner can no longer control what is doen with the item. If that were not the case, you could not repaint your old car, have a garage sale to get rid of junk, or donate that old computer to the school.
The First Sale Doctrine prevents the copyright owner from interferring with your use, alteration, and subsequent disposal of something you bought or received as a present. Suppose you purchased a coloring book manufactured by Disney and your child colored a picture making the Lion King purple. Should Disney have the right to have you arrested because your child didn't use the correct colors? No. They lost control of that coloring book when you bought it.
What is a Derivative? There is a tricky exception. And the lawyers love to use the "derivative" word. A derivative is when you take a copyrighted item and alter it, or transform it, into something original using the copyrighted material. But, the changed copyrighted item must be original enough to get its own copyright to be a derivative. Confused? So are the courts.
One case in the 9th Circuit ruled that the simple act of mounting greeting cards onto a tile and covering it with epoxy was a derivative and therefore belonged to the original owner. Most courts place a higher standard on "originality". A two-dimensional cartoon character cannot be made into a three-dimensional costume without the consent of the copyright holder. The costume is a derivative of the copyrighted cartoon. But copyrighted fabric bearing the image of the cartoon character can be made into a costume.