Basic Copyright Law Principals

Copyright law has traditionally been viewed as a balance between the rights of copyright owners to profit from their creativity and the interests of society to learn from and build upon their works. The U.S. Copyright Act is based on the U.S. Constitution which provides that "Congress shall have the 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." The Copyright Act protects "original works of authorship fixed in any tangible medium of expression" and may include literary, musical, dramatic, pictorial or architectural works. Ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries are not protected by the Copyright Act, regardless of how the subject matter is embodied in the work. (These areas are typically the subject of patent protection). Also, works not fixed (improvisational speech), titles, names, slogans (trademark protection, if anything), and facts without original authorship (calendars, height & weight charts, tape measures, etc.) are not copyrightable.

The copyright owner possesses the exclusive right to (1) reproduce, (2) prepare derivative works, (3) distribute, (4) perform publicly, (5) display publicly and (6) perform by means of digital audio transmission sound recordings. Copyright protection vests in the author immediately at the time the work is created in a fixed form. No publication, registration, notice or other action is required for copyright ownership to vest, but distinct advantages are associated with registration and the placement of notice on the work (e.g., ?2001, Indianapolis Public Schools). Some works are owned by the employer by operation of law. A "work made for hire" is a work (1) prepared by an employee within the scope of employment or (2) specially ordered for use as a contribution to a collective work, as part of an audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as test answer material or as an atlas, if the parties agree in writing.

The copyrights in works created after 1/1/78 endure for the author's life plus 70 years or, for works made for hire or anonymous or pseudonymous works, 95 years from publication or 120 years from creation, whichever is shorter. For works created and published before 1/1/78, there is a complex renewal system now in place.

Generally, anyone (including instrumentalities of the state, such as schools) who violates the exclusive rights of the copyright owner is an infringer. The copyright owner must show (1) ownership of a valid copyright and (2) copying of original elements of the work. Since direct evidence of copying (e.g., a witness) is rare, the copyright owner must usually show (1) the alleged infringer's access to the copyrighted work and (2) "substantial similarity" between the copyrighted and allegedly infringing works. Generally, a reasonable "opportunity" to copy constitutes access, and showing of access is not needed if the allegedly infringing work is "strikingly" similar to the original. "Substantial" similarity requires something less than identical copying, but more than trivial similarities. "Substantial similarity" is determined by the "ordinary observer" test which asks whether an average person would recognize the alleged copy as having been copied from the copyrighted work.

If infringement is proved, the copyright owner may choose between actual or statutory damages (the latter only if the work is registered). The measure of actual damages is the amount of damages suffered as a result of the infringement and any additional profits of the infringer (attributable to the copyrighted work). The court sets statutory damage amounts for each act of infringement within the range of $750 to $30,000. If willful infringement is proved, the court may increase the award to a sum of not more than $150,000 per infringement of an individual work. If the infringer proves a lack of knowledge and no reasonable grounds for having such knowledge that the act constituted infringement ("innocent infringement"), the court may reduce the damages to as low as $200. The court "shall remit" damages in a case where the infringer reasonably believed that the use was a fair use, if the infringer was an employee of a non-profit educational institution acting within the scope of employment and infringed the work by making copies or phonorecords. The court may also award attorney's fees and costs to the prevailing party in the case of a registered work. Finally, substantial monetary fines and prison sentences are possible for willful infringement (a showing of intent is required) for "commercial advantage or private financial gain" or by copying, within a 180-day period, one or more works having a total retail value of more than $1,000