U.S. copyright law can be very difficult to truly understand, and the technological developments over the past decade couple decades have complicated matters to the extent that the law is still very much in flux.
In the United States and its territories, the ability to copyright a work requires that the work be the original, fixed and tangible creation of a specific author. This classification covers a variety of works, including literature, music, drama, dance, visual art, architecture, motion pictures and sound recordings. These categories are intentionally broad. Among the materials not covered by copyright are any works that haven’t been tangibly fixed, as well as titles, slogans, phrases, ideas, concepts and works composed of common information.
One of the major factors in this area of the law is the necessity of gaining permission to use copyrighted material. Material that can be used without seeking permission is referred to as being in the public domain. In the U.S., any materials created prior to 1923 are in the public domain and can be used freely — this is why you can walk into a bookstore and find a dozen different versions of “The Adventures of Huckleberry Finn.” However, this particular provision of U.S. copyright law is probably the most straightforward.
Works created and published from 1923 to 1977 are protected by copyright for 95 years. Works published after 1977 are protected for 70 years after the death of the author. In all of these circumstances, there are additional exceptions and quirks that may affect the copyright protection of a particular piece of work.
Another key debate in copyright claims comes down to what constitutes fair use. In determining whether fair use has been violated, the court will look at several factors. Most important is the way in which the material was used. For instance, use that transforms or illuminates the original material — such as in criticism, commentary or scholarly contexts — is usually considered fair. The proportion of material used also makes a difference, with the general guiding principle being that the smaller the proportion used, the more likely the use was fair. Finally, if the material was used primarily for commercial purposes, or to compete with sales of the original, such use is typically going to be considered a violation of the principles of fair use.
As copyright law is changing and new issues are always being brought to the attention of courts, it’s somewhat common to have questions or concerns about the status of your own copyright or about your use of someone else’s intellectual property. Consult an attorney to learn more about your rights and obligations.
BoltNagi is a well-respected and established intellectual property law firm serving individuals, businesses and organizations throughout the U.S. Virgin Islands.