Copyright

Copyright law is intended to promote the progress of art by giving authors a monopoly on the works they create.  Copyright law in general has its roots in English law, on which “common law” copyright is based.  Copyright is such an important right for authors, that it is mentioned in the United States Constitution, which grants Congress the authority “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.”

Copyright protection allows an author to prevent others from copying, distributing, publicly performing or displaying, or creating derivatives of a protected work.  In order to be protectable by copyright, a work must be “original” and “fixed” in a tangible medium.  A work is original so long as it has some minimal spark of creativity.  For example, listing names alphabetically does not have a minimal spark of creativity.

A work is “fixed” in a tangible medium when it can be perceived, reproduced, or otherwise communicated from more than some transitory period of time.  For example, a poem written down on a piece of paper has been fixed in a tangible medium. However, a poem that has only ever been performed orally is not protectable by copyright unless or until it is written down or otherwise recorded.

There can be many issues that arise in copyright law.  Independent contractors that create works for someone else usually own the copyright in their creation even though they were paid to create the work.  In this case, the business or person paying to author should have the author assign ownership in the copyrights over to the buyer.

Additionally, there may be more than one author of a work.  For example, multiple musical artists may collaborate to produce one song.  Each of the artist would share in ownership of the entire song depending on the contribution they made to the work.  Things get even more complicated when the time comes to license the work and not all authors agree to the licensing, such as when statutory termination rights vest.  Over the last few years we’ve seen major cases between the heirs to the estate of John Steinbeck dispute over the copyrighted works he left behind, between members of the Village People regarding ownership of the hit Y.M.C.A. song, and even Paul McCartney and the Beatles.

Many of the cases previously listed arise out of another complex issue involved in copyright law: statutory termination rights.  The Copyright Act allows an author to reclaim a previous transfer of a copyright so long as the author satisfies the procedure in the Act.  This gives authors a “second bit of the apple” so to speak, and is said to give power back to artists, who may not know the true value of their work when they initially enter a license or production deal.

Termination rights are extremely important partly because of the long life of copyrights.  For works created after 1978, they generally last 70 years after the authors death.  That means a copyright assignment entered into by a young artist could last over a hundred years!  Add to that the fact that it is nearly impossible for an artist to know the true value of its works until the often many years pass, and the value of termination rights become very clear.

Ownership of copyright is only the beginning of the analysis when it comes to copyright, however, because now the owner has to prevent others from copying the work or violation any of the other rights granted to the author by copyright law.  The nature of art in general makes it difficult sometimes to determine whether a work has been copied.  For a song, it could be just the melody that is copied, but damages for copyright infringement can be substantial!  Maybe an artist heard the tune in the background in an elevator, or at a coffee shop; nonetheless, the copying of the tune could still consist of infringement.  It is often not until the copying work takes off that the original copyright owner seeks to enforce its copyright.

Ortiz Law is experienced in assisting artists in protecting, licensing, or enforcing their copyrights.

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