Hi. I'm Stan Muller, this is Crash Course Intellectual Property, and today we're going
to be talking about copyright law. As you might have guessed, the law of copyright relates
to the right to copy, the copy right as it relates to copies of copyrightable works. You copy?
[Theme Music]
Right. So, the right to copy or reproduce copyright protected works is only one of the
exclusive rights granted by the law of copyright. We're also gonna discuss what types of things
can actually be copyrighted, what we call the subject matter. But first, let's talk
a little bit about the history of copyright law in the United States. Why the United States?
Not because the US is exceptional and not because I'm a cultural imperialist trying
to erode the identity and fabric of foreign nations. Mostly it's just because we're making
this video in the United States and copyright law is territorial.
So, in 1709, England passed the Statute of Anne, which is widely considered to be the
first copyright law. The Statute of Anne was the first law to grant ownership rights to
individual authors rather than to publishers or printers. Throughout the 18th century,
several of the American colonies adopted copyright and copyright-like laws based on the Statute
of Anne. The drafters of the US Constitution inserted what is commonly called the intellectual
property clause in Article 1, Section 8, Clause 8 and reads, "The 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 rights to their respective writings."
So listed right up there with Congress's power to lay and collect taxes and to declare war
and gather armies is the power to promote the progress of learning and knowledge through
the grant of a limited monopoly to authors and inventors in the form of copyrights and
patents. It is, without question, the coolest of the Congressional powers. Stan, does that
seem biased? Oh, I'm Stan, oh, uh, Mark, does that seem biased? No? Good. The law has undergone
several major revisions in the past 225 years, and it's currently in the process of a major review.
So let's talk about what types of works are eligible for copyright protection and what
rights authors or owners have in those works. Copyright law protects original works of authorship.
Originality in the context of copyright means only that the work owes its origin to the author.
That is, it's independently created and isn't copied from other works.
How creative do these original works have to be though? Not very, at all. For a work
to be copyrightable, there only needs to be a minimal amount of creativity. Adult judges
in court have described in in court as a scintilla, a dab, even a glimmer. So why is the bar for
creativity set so low? Well, it's because lawmakers and judges probably aren't the best
people to decide what types of creative works promote the progress of knowledge. Supreme
Court Justice Oliver Wendell Holmes said, "It would be a dangerous undertaking for persons
trained only to the law to constitute themselves judges of the worth of pictorial illustrations
outside of the narrowest and most obvious limits." Holmes may have been speaking specifically
about pictorial illustrations in this case, but the principle applies to any type of creative work.
Anyway, Holmes clearly feels that judges don't necessarily make the best art critics.
So what does Holmes mean by "narrow and obvious limits"? Well, words and short phrases like
names (John Green), titles (like The Fault in Our Stars), slogans ("one sick love story"),
fonts, coloring, mere listings of ingredients or contents, familiar symbols or designs (like
an 8-ball), none of this is protectable under copyright law. Are they protected by any other
branch of intellectual property? Ask again later.
One quick note: In order for a work to be protected by copyright, it need not in and
of itself promote the progress of science. From literary novels to the most graphic pornography,
it's probably protectable. The courts have concluded that it isn't a question of whether
a work promotes the progress of knowledge but that all works are granted equal protection.
In this way, the law encourages people to create a diverse array of stuff. At the end
of the day, it's the system that promotes the progress of science and not the individual works.
Copyright law protects original works of authorship. Works of authorship fall into any of the eight
categories that are listed in the copyright act. Literary works are basically anything
that can be embodied by letters or numbers, including novels, blogs, computer programs,
websites, databases, and possibly really creative tweets. Musical works refers to the actual
musical notation of a song by say, T-Swizzy. Sound recordings are the actual music embodied
in the record or the CD or an MP3 that extends to things like audiobooks. That's what you
actually hear. Dramatic works, which are basically stage productions like Wicked or Cats or Waiting
for Godot. Pantomimes and choreographic works. Pictorial, graphic, and sculptural works.
Motion pictures, and even architectural works, all of these are considered to be writings.
Congress has indicated that this list isn't exhaustive, and it's vague on purpose, because
humans are coming up with new ways to express themselves all the time. Believe it or not,
this is not the apex of human creativity. So imagining the Guggenheim or a mime routine
as writing can feel like a stretch. In order for any of these works to be considered bona
fide writings in the Constitutional sense, they must be fixed in any tangible medium
of expression, be that a book, an MP3, source code, choreography, a blueprint, or whatever.
The only requirement for a tangible medium of expression is that we as humans either
on our own or by using a computer or some other device be able to perceive it in the form of a copy or record.
This brings up a widely misunderstood aspect of copyright: copyright protection extends
to the intangible material, the literary work, not the physical copy of the work. You may
own the copy of the book, but you don't own the copyright. Also, copyright extends only
to expression and not to ideas. If you come up with a million dollar idea for the best
movie ever made or the greatest novel in history, until you actually write these masterpieces
and fix them in a tangible medium, copyright law doesn't protect you.
And you can't copyright facts. Let's say you do some research and discover that Matthias
Buchinger was born in Germany on June 3, 1674 without hands or legs. He was a famous artist,
calligrapher, and magician. He was called "The Little Man of Nuremberg" and "The Greatest
German Living", and he was married four times, fathered at least 14 children by eight different
women. Even if you spend your entire academic career uncovering these fascinating facts,
facts alone aren't copyrightable. A biography of Buchinger would qualify for copyright protection,
but only the narrative expression would qualify. Subsequent biographers could use the facts
you uncovered in your research but would be prohibited from expressing those facts using
your words. They'd have to make up their own.
"Scènes à faire" or scenes that must be done are not copyrightable either. These are
well-worn storylines like a pair of star-crossed lovers from feuding families or fables or
folklore. This sounds to me like a cliche. You can't copyright stuff like the idea of
a dastardly villain tying a damsel to a train track.
Finally, works created by the Federal Government can't be copyrighted. That's why we can show
you this and this and this, no charge. Thanks, federal employees!
So who can get a copyright? Well, according to the 1976 Copyright Act, ownership initially
goes to the author or authors of the work. One of the only limits to this rule is that
the individual author has to be a human being. If the work is created by an entity other
than a human, like say a monkey or a mindless automaton or an employee, that creator is
not an author. I'm kidding, okay? Employees are humans, but that does bring us very nicely
to the idea of works made for hire. Let's go to the Thought Bubble.
So, if your boss tells you to create something, then your boss or the company you both work
for, is considered to be the author of that something. A work made for hire can be a work
prepared by an employee within the scope of his/her employment, or certain works that
are specially ordered or commissioned. Many employment contracts spell out what constitutes
work made for hire. If they don't or if there's no clear employee/employer relationship, courts
look at things like whether the employee used the employer's computer, created the work
during normal work hours, or was directed by a supervisor during the creation process.
If it seems that there was an employer/employee relationship and the employee created the
work while acting within the scope of that employee's duties, it probably was a work
made for hire. So in these cases, the employer is considered to be the author. The actual
people who created the work have no economic rights in the work, other than the fact that
they were compensated for their efforts. This video is a work for hire. Frank's script,
my performance, Mark's directions, Zulaiha's script supervision, Brandon's editing, Thought
Café's animations, Jason's music, these are all components of this motion picture work
and they all belong to the company we work for. One interesting question here is what
rights, if any, you may have if you support Crash Course via Patreon. Are you as a paying
supporter functioning as our employer? Did you commission this work? Is this a work made
for hire, authored by tens of thousands of supporters? If you participate in a crowdfunding
scheme where subscribers vote on or suggest the direction of the creative work, are you
joint authors? Magic-8 Ball? Huh. Better not tell you now. Thanks, Thought Bubble.
So authors have a bundle of exclusive rights in their copyrighted works. They get these
rights at the moment the work is created. Authors don't have to register their works
to be protected, but there are benefits to registration. For example, authors can't go
to federal court to enforce their copyrights unless they've registered it. The reproduction
right is, put simply, the right to copy. Under US law, reproduction relates only copying
the producer's copy or photo records, which, as we just learned, have to be fixed, tangible,
and intelligible. In a lot of ways, our modern digital world is just an intricate network
of copying. Think about how this video got from me to you. I don't even know where the
actual copy of this work resides. We have a master copy on a hard drive in the closet
over there, but the copy you're viewing has been uploaded and copied to Google's servers
and then it gets transferred and copied from server to server across the Internet until
it reaches you, where an intricate sequence of copying takes place in your device's processor
and memory so that you can stream it and view it. So in this system where damages pile up
for every instance of infringement and statutory damages can be as much as $150,000 every time
an infringing copy is made, get out the confetti cannon, because we are rich! What? Most of
these temporary copies aren't fixed or tangible? Are you sure? We're not rich? Let's get an
employee or a mindless automaton in here to clean up all this confetti. Hey, a Roomba!
Roomba is a registered trademark of the iRobot Corporation.
Okay, so, the adaptation right means that copyright owners have the exclusive right
to create or authorize, "any translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment, condensation, or
any other form in which the work may be recast, transformed, or adapted." Under the distribution
right, copyright owners have the right, "to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership or by rental, lease, or lending."
This seems pretty straightforward until the Internet happened.
In the digital world, what counts as a distribution? Things like streaming video services, torrent
sharing, even the idea of licensing media for marketplaces like iTunes are fairly new,
and the law has struggled to keep pace with the emerging technology. Really, all we can
do is ask our trusty liquid filled dye agitator. Reply hazy, ask again later. You know, I don't
think this thing is magic at all. These answers are ambiguous and they seem to be arbitrary
and I don't think you should make your decisions based on this.
But anyway, the public performance right allows copyright owners, "to recite, render, play,
dance, or act any copyright protected work, either directly or by means of any device
or process." The Supreme Court recently ruled that Aereo, an online video service, made
an illegal public performance when it let customers view broadcast television over the
Internet. Aereo argued that since each of their customers were assigned an individual
antenna, when they would transmit the over-the-air broadcast to each user, it was a private performance.
The court disagreed. Under the public display right, copyright owners have the exclusive
right to display their works. In 1995, a sixth right, digital audio transmission was created.
This is what comes into play whenever you stream music on Spotify or Pandora.
Under the most recent version of the US Copyright Law, these exclusive rights last for the lifetime
of the author plus 70 years. For works made for hire, terms last for 95 years from publication
or 120 years from the date of creation, whichever is shorter. So that means this video won't
end up in the public domain until January 1, 2111. That is a long time. A lot of people
think that's too long. Some people think that's not long enough. What do you think?
Tell us in comments, and we'll see you next week.
Crash Course Intellectual Property is filmed at the Chad and Stacey Emigholz studio in
Indianapolis, Indiana and it's made by all of these nice workers for hire. If you'd like
to keep Crash Course free for everyone forever, you can fund the series on Patreon, a crowdfunding
platform that allows you to support the content you love. You can get awesome rewards for
your support, but you do not get ownership of the Crash Course copyright. Sorry.
The greatest reward, though, is helping people learn stuff. Thanks for watching, and we'll see you next week.