{"id":3535,"date":"2011-08-26T03:00:17","date_gmt":"2011-08-26T09:00:17","guid":{"rendered":"http:\/\/writersfunzone.com\/blog\/?p=3535"},"modified":"2011-08-28T22:08:34","modified_gmt":"2011-08-29T04:08:34","slug":"what-is-copyright","status":"publish","type":"post","link":"https:\/\/writersfunzone.com\/blog\/2011\/08\/26\/what-is-copyright\/","title":{"rendered":"What is Copyright?"},"content":{"rendered":"
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Kelley Way is a member of the California Bar<\/p><\/div>\n

Welcome to the monthly series on artist entrepreneurship. Today we focus on writers and literary law specifically and on an important issue to be aware of in today\u2019s world \u2014\u00a0what does copyright mean and how does it apply to authors\u00a0<\/em>\u2014 from\u00a0our monthly guest columnist, Kelley Way,\u00a0<\/strong>a lawyer specializing in literary law. If you have general questions for Kelley on contracts or other aspects of literary law, be sure to comment below.\u00a0Thanks!<\/em><\/strong><\/p>\n

<\/em><\/strong>PS. A list of books on literary law can be found\u00a0here<\/a>.<\/p>\n

PPS. For more on copyright, visit the\u00a0U.S. Copyright Office<\/a>.<\/p>\n

And now for a bit of necessary legalese:\u00a0\u00a0<\/em>Please note that this article does not constitute legal advice, and that an attorney-client relationship is not formed by reading the article or by commenting thereon.<\/em><\/p>\n

^*^<\/em><\/strong><\/p>\n

What is Copyright?<\/strong><\/p>\n

In my article on fair use and copyrights<\/a>, I wrote briefly on what can be copyrighted, but it\u2019s a big enough topic that I feel it deserves its own article.<\/p>\n

According to the 1976 Copyright Act, a copyright \u201csubsists\u2026in original works of authorship fixed in any tangible medium of expression.\u201d<\/p>\n

Yeah, I know \u2013 that\u2019s about as clear as mud. Basically, this phrase can be broken down into two sections:<\/p>\n

1.<\/span> \u201cOriginal works of authorship.\u201d<\/strong><\/span> Okay, this one isn\u2019t so bad. It means pretty much what it says: the work (whether that\u2019s a story, painting, song, or something else) must have been created by a person (the author).<\/p>\n

The work must be original to the author; he can\u2019t copy someone else\u2019s work and claim that it\u2019s original.<\/p>\n

Likewise, the work must possess some degree of creativity; it\u2019s not original if there are a hundred works just like it. However, the bar for creativity is very low, so this requirement is not difficult to meet. Things that tend to fall short of originality would be short phrases and titles, and very uncreative photos, such as geography photos from a surveillance camera or a photo of a plate of food. Ideas, procedures, discoveries, and the like are not considered creative or original, but the \u201cpackaging\u201d \u2013 the way they are combined, explained, and\/or expressed \u2013 is.<\/p>\n

The fancy-sounding term for this, if you\u2019re looking to impress people, is the \u201cidea-expression dichotomy.\u201d
\n2.<\/span> \u201cFixed in any tangible medium of expression.\u201d<\/strong><\/span> This is part that has most people scratching their heads.<\/p>\n

It sounds obscure, but the idea is pretty simple: essentially the work must be written down, recorded, or otherwise \u201csaved\u201d so that the author can produce it and show it to someone when needed.<\/p>\n

It makes the process of obtaining or defending copyrights much simpler if there is physical evidence that the work exists, and in cases of copyright infringement, that it did exist at the time in question.<\/p>\n

This requirement is not as difficult for book authors as it is for creators of other types of works, since book authors just need to make sure that their works are written down (or typed up, as the case may be).<\/p>\n

But for those of you who are still worried, and live in California, I can relieve and confuse you in one fell swoop, when I say that California has laws protecting original works of authorship that are not<\/em> fixed in a tangible medium of expression.<\/p>\n

Copyright law is federal, but so many creative works are created in California that it feels the need to extend protection above and beyond the federal Copyright Act. New York and a few other states also have laws extending extra protection to creative works, but since I don\u2019t live there I can\u2019t tell you more than that they exist.<\/p><\/blockquote>\n

One last thing worth mentioning on this subject is the \u201cmerger doctrine.\u201d<\/strong><\/span> This legal term arose out of a case where a man came up with a new bookkeeping system. He liked it enough that he published an entire book about it, including the charts that were needed to use this system.<\/p>\n

Unfortunately for him, a lot of other people liked it too, but didn\u2019t see a need to buy the book when they could just copy the charts. Naturally, he sued, claiming copyright infringement because they were copying the charts out of his copyrighted book. He asserted that, logically, because the book was copyrighted, the charts inside the book were copyrighted as well.<\/p>\n

The court sided with the other guy and came up with a new theory of law to justify it. (Yeah, they\u2019ll do that).<\/p>\n

Basically, the bookkeeping system, being a process, could not be copyrighted.<\/p>\n

However, the words used to describe the process were copyrightable, so the book as a whole had a valid copyright.<\/p>\n

The twist here was the charts: because the charts were required to use the unprotected system, the court said that the charts were not protected by copyright either. This has been expanded to include any situation where an idea can only be expressed in a very limited number of ways.<\/p>\n

As a policy matter, circulating ideas is considered more important than encouraging creative expression, so if there is a risk that an idea will be suppressed because the only way to explain it is copyrighted, the courts will find that the explanation can\u2019t be copyrighted.<\/p>\n

Well, if you\u2019re still reading then I must not have lost you completely. Hopefully you\u2019ve found this helpful, and if you\u2019re still scratching your head, you know how to reach me. \ud83d\ude42<\/p>\n

^*^<\/p>\n

Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. She can be contacted at\u00a0KelleyAWay@gmail.com<\/a>.<\/p>\n

Others articles on the Writer\u2019s Fun Zone<\/strong><\/span> by Kelley Way:<\/p>\n