A Whirlwind Tour of American Copyright

This post begins with an obligatory disclaimer: I am not a lawyer. None of the following should be construed as legal advice, nor should it be taken as the final binding scholarly word on the subject. Likewise, everything here applies only to the United States. The specifics of copyright law vary considerably between jurisdictions, and I cannot speak with any authority on how things stand in, say, Belgium. (There are even differences depending on which area of the United States you're talking about, but I won't be getting into that level of detail today.) Still, in addition to doing a considerable amount of independent research, I have actually studied copyright law with a copyright lawyer, and it's something I'm generally pretty passionate about. I've found that there are a surprising number of misconceptions floating around out there on the subject, and today I want to try and clear some of them up in language that is accessible to a lay audience.

First of all: What is copyright?

It sounds obnoxiously unhelpful to say so, but at it's most fundamental, copyright is the right to control who gets to make copies of your work. This results very neatly in authors* being able to control how their work gets used, but the deeper intent has less to do with preserving authorial vision and more to do with preserving authorial bodily integrity. Basically, the reasoning goes like this: Having a lot of quality art is a societal good. But if someone can, say, take the text of your novel as soon as it becomes public and sell it for less than you are, artists will never be able to make a living off of their art, and no one would keep making art. So we use copyright to temporarily prevent anyone but the original author from copying and distributing their work. (Authors can sell or transfer this right, or a part of it, to other people. This is why copyright notices in books almost always list the publisher and not the author as the owner of the copyright; the author sold their copyright to the publisher as part of the publication contract. But the basic principle holds: The owner of the copyright controls who gets to make copies of the copyrighted work.) All this is to say that in the American legal system, copyright is primarily an economic right, not, say, a moral one respecting the integrity of an artist's vision. It's about protecting authors' financial interests, not necessarily their artistic ones. This can be a subtle distinction — and there are many cases where these two categories blur together — but it can be important to keep in mind when dealing with issues of Fair Use, on which more later.

What is copyrightable?

Copyright protects creative expression, not facts or ideas. To be protected, this expression has to be fixed in a medium where others can access it. For example: Right now, I have a fairly extensive plan in my head for a lesbian rom-com set in a Physics lab. That idea isn't copyrightable. If tomorrow I read in the paper that someone else has just opened their brand new lesbian rom-com musical set in a Physics lab, I can't say "Um, no, you can't do that because I had the idea first.". The idea of "lesbian rom-com musical set in a Physics lab" cannot be protected by copyright, because it's not fixed in any tangible form. The specific lines and melodic fragments that I have written down, however, are protected by copyright, because they are fixed, concrete expression. (Likewise, someone could re-write this entire post and be legally fine; I have copyright for the specific words I'm using, but not for the ideas they express.) The fixedness is an important point. If I talk extemporaneously about this lesbian rom-com and improvise a bunch of themes at the piano to a room where no one's taking notes or using a recording device, none of what I say or improvise is protected because it isn't fixed in anything outside of anyone's head. If I were giving a prepared speech from a printed transcript, however, or if someone were recording the whole thing on their laptop, then everything I did would be protected because there is a fixed record of it that someone else can examine.

Relatedly, copyright protection kicks in as soon as something is fixed. It is not necessary to register something with the Copyright Office to get copyright protection, nor is it necessary to display a specific copyright indication. There are very good reasons that you might want to do these things, but they are not necessary for copyright protection to be in effect**. As soon as I started entering words into the editing box for this post, they were protected by copyright. (In this case, that doesn't really do me much good, since Copyright: The Musical! most definitely is not coming soon to a stage near you, but still.) The exception to this is bare statements of fact (like "Two plus two equals four" or "On March 2, 2015, the high temperature in Los Angeles was 63ºF"), because there's no societal benefit to hindering the transmission of objectively true information.

This also means that copyright covers a wide range of things that we don't normally think of as having copyright protection, up to and including selfies and status updates. If you've ever taken a photo or written something more original than a shopping list, congratulations! You own a copyright! For the most part, these copyrights aren't worth anything — let's face it, the average Facebook status update is hardly a breathtaking work of staggering genius — but they do technically exist. For those of you who have actually ever read the terms of service for a social media site, this is why they all contain clauses in which you, the person using the site, agree to grant the site a variety of copyright-related permissions; if you didn't agree to do so, the site would be legally forbidden from letting anyone else see your content ever.

OK, but what counts as a copy?

Copyright doesn't just limit who can make exact reproductions of a protected work, it also limits who can make altered versions of it. These altered versions are called "derivative works" because they're derived from the original work without being exact literal copies of it. For a photograph, say, a black-and-white version, a cropped version, or a shrunk version would all count as derivative works. For a novel, translations into different languages would count, as would a musical adaptation or an excerpted chapter. (The right to make these derivative works can be divvied up separately: I can give someone permission to translate this blog post into French without also giving them permission to translate it to German or set it to music.) A very hefty chunk of copyright negotiations involves who gets to make what derivative works, and this is also one of the things that allows artists to retain creative control over their work: If you've written a wildly popular story with a bunch of queer characters and you're worried that they'll all become straight if it gets adapted to the silver screen, you can refuse to grant anyone permission to make a movie out of it unless they agree to leave all of the characters' sexualities unchanged.

How long does this protection last?

Currently, in the United States, a work's copyright expires 70 years after the author dies. If this had always been how US copyright law worked, things would be relatively simple, but until 1976, the US was working on a system of fixed copyright terms — a work would be protected for, say, 28 years, regardless of how long the author lived. This change did not apply retroactively, so expired copyrights were not revived, leading to the Great Mid-Century Quagmire***. The closing bookend is the 1976 copyright act which shifted everything to flexible as opposed to fixed terms, and the opening bookend is 1923, because everything published before 1923 in the United States is in the public domain. That bears repeating: Everything published before 1923 in the United States is in the public domain. You can do anything you want with it, and nothing will be a violation of copyright. Between 1923 and 1976 is a messMost things published in this period are protected by copyright, but quite a few are not. Some are in the public domain because their authors died more than 70 years ago, but quite a few have fallen into the public domain due to clerical issues such as a failure to renew, or an inadequate or missing copyright notification, or some other issue of that magnitude. So some works are fair game and some aren't, and tracking down which is which can be a tedious and time-consuming headache. (The safest bet is to just assume that a work in this span is protected by copyright, tho obviously this is not a terribly satisfying solution. It doesn't help that people may mistakenly believe (or maliciously pretend) they hold a copyright that has, in fact, expired — astonishingly enough, this may be the case with "Happy Birthday to You". [Social Science Research Network with downloadable PDF])

The long and the short of it is this:

  • Works published before 1923 are definitely in the public domain.
  • Works published between 1923 and 1976 may or may not be in the public domain.
  • Works published after 1976 are not in the public domain. (Unless there's some special work-specific exception. Some artists, for a variety of reasons, decide to release some or all of their works into the public domain well before their copyright terms would expire. Most, however, don't.)

The current flexible term length can have some counterintuitive results. Bartók Béla's Concerto for Orchestra (published in 1945) will be in the public domain in the US next year, because Bartók died in 1945. Elliott Carter's "My Love is in a Light Attire", published nearly two decades earlier in 1928, will not be in the public domain until 2083 because Carter only died in 2012. (If it strikes you that this latter term is maybe a little on the absurdly long side, you are not alone in having this opinion.)

So if something's copyright protected, I can't use it without permission at all?

Well. This is where it gets even more complicated. Remember at the beginning how I said that one of the animating principles of copyright legislation is the idea that having a lot of art is a societal good? Turns out it's not the only societal good, and there are cases where protecting an artist's copyright too strictly actually hinders these other goods. As such, there are exceptions to copyright under the doctrine of Fair Use.

Fair Use is what allows reviewers to include excerpts from books they're reviewing, academics to quote works they're analyzing, other artists to allude to works that have gone before, either in loving homage or with a snarky air of "look how much better I can do it!". It also allows for parody, as when Saturday Night Live lampooned the idea that the only thing New York needed to spruce things up in the late 70s/early 80s was an advertising campaign with a catchy jingle [YouTube] by creating a fictitious ad campaign for the Biblical city of Sodom, complete with a chorus belting out "I love Sodom!". (You can see the skit in question on this law site.)

There are no hard and fast rules for what counts as Fair Use. There is no checklist of features you can tick off to evaluate whether a given use is protected. A final determination of whether something is or isn't fair use can only be made by a judge in a court of law, because there are simply too many competing factors that must all be carefully weighed. Is the use for commercial purposes, or is it, say, educational? Does it directly compete with the original financially? (Because, remember, copyright is primarily an economic right, not an artistic one.) Is the original work primarily factual, or is it a work of creative fiction? How much of the original work is used? And so on and so forth ad nauseam.

Getting into all of the details of Fair Use is well beyond the scope of this post, but an example might help illuminate some of the difficulties. During the Anthony Weiner sexting scandal in 2013, Kristin Chenoweth appeared on The Tonight Show to sing a version of "Popular" from the musical Wicked with lyrics altered to mock the candidate. In popular parlance, we'd call this a parody, but it's not poking fun at Wicked or anything to do with the show; it's taking aim at a completely unrelated target. That's a grey area — to fit the legal definition, a parody has to be taking aim at the work it's drawing from or the context of that original work's creation. On the other hand, this was a one-off performance, not part of a regular show, so it's not exactly competing with Wicked's ticket sales. Nor is Wicked an unpublished or obscure show; its reception isn't going to be forever tainted by being associated with Chenoweth's spoof. These are things that a judge would consider if the question of whether this usage falls under Fair Use were to arise in court. (For the record, I'm assuming that the Tonight Show people got permission from the Wicked people to use the song when they were putting the skit together. I doubt they'd risk a lawsuit over something like this.)

Underlying this is the issue of when something becomes a transformative work. Like a derivative work, a transformative work clearly draws elements from a pre-existing thing, but unlike a derivative work, it transforms them into something fundamentally new. The line between a transformative work and a derivative one is fuzzy and poorly defined, and many lawsuits involving copyright law hinge on just this question. Different courts have put this line in different places, so the same work could be found transformative if tried in one jurisdiction but derivative if tied in another. (This, incidentally, is why fanfiction lives in such murky legal waters. Some works of fanfiction are almost certainly transformative works, while others are almost certainly derivative. Sorting out which is which is not something that can be done outside of a court of law.)

So there you have it, a whirlwind tour of American copyright law. Obviously, this is not the only system that could exist, nor is it necessarily the best possible one, even in the framework of late capitalism, but it's the one we have, and this is a taste of how it works. I've left out some pretty sweeping chunks (and let's be real, this post is more than long enough already), but I hope you've come away with a clearer sense of the underlying principles as well as some of the quirks and tensions that riddle them.

*Thruout this post, I'm using "author" and "artist" interchangeably in the broad sense to include composers, painters, sculptors, etc — anyone who makes copyrightable work. I'm also going to pretend that such people never sell their copyright, so I can avoid having to constantly use phrases like "the author or publisher or whoever holds the pertinent legal rights". Reality, unsurprisingly, is considerably more complicated.

**This hasn't always been the case. The copyright notice thing in particular is partly responsible for the Great Mid-Century Quagmire, which we will come to presently.

***Not an official legal term.