Copyright Basics

Copyright can be a tricky concept. But it's deeply intertwined with writing, research, and every time you communicate online. This guide will help make copyright a little clearer. 

On this page, we will answer the following questions: 

• What is copyright?
• What can be copyrighted?
• Who owns copyrights?
• What are the exclusive rights of copyright?
• What is the length of copyright protection? 

You can also find the answers to these questions in the Crash Course video below. 

More Copyright Topics

The rest of the guide will go into more detail related to specific copyright topics:

• Limitations to copyright such as fair use and reproduction of works by libraries and archives
• Public domain: works without copyright protection
• Creative Commons: open licensing of copyrighted works

Copyright: "a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression [emphases in original] (U.S. Copyright Office "What is Copyright?").

Intellectual property: "any product of the human intellect that the law protects from unauthorized use by others. The ownership of intellectual property inherently creates a limited monopoly in the protected property (Legal Information Institute "Intellectual Property")."

The United States Constitution grants Congress 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" (Art. 1, Sec. 8). This clause, though it does not use the word "copyright," is the basis of copyright law in the United States. Its logic is that giving authors temporary monopolies on the use of their works will promote their creativity by giving them an incentive to create the works. It gives Congress broad powers to determine how to best set these incentives (Congressional Research Service).

Basic Requirements

There are two requirements for something to qualify for copyright protection: 

• Be an original work of authorship
• Be fixed in a tangible form of expression

To be an original work of authorship, something must be created by a human using some minimal level of creativity and without directly copying another work (U.S. Copyright Office, "What is Copyright?").

Fixing in a tangible form of expression means that the work is captured in a physical form so that it can be perceived and used to communicate to others for an extended period of time. This includes physical forms where you would need a device to perceive and interact with the work (Crews Ch. 4 [UofM login required]).

• Something you are thinking is not fixed. It cannot be perceived or used to communicate to others. Writing your thoughts down on paper fixes them in a tangible form of expression, because you can interact with and share that paper with others. 
• Something you just said out loud is not fixed. What you said can be perceived and used to communicate, but only while you are talking. Recording what you said as an MP3 file saved to a hard drive fixes it in a tangible form of expression. You can interact with the recording and share it after you are done speaking, even though you would need some sort of device to do so. 

Image by StockSnap from Pixabay used under Pixabay license. 

Categories of Copyrightable Work

These are broad categories of works that can be copyrighted:

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds
• Architectural works (U.S. Copyright Office, Circular 1 [PDF] 1)

These categories are designed to be interpreted broadly. Anything that is a work of original authorship fixed in a tangible form of expression can be copyrighted (U.S. Copyright Office, Circular 1 [PDF] 1). 

What Can't Be Copyrighted

• If a work does not meet the minimum creativity standards it cannot be copyrighted. This includes names, titles, and short phrases; recipes if they are just a list of ingredients and cooking process; blank forms; layouts; and familiar designs (U.S. Copyright Office, Circular 33 [PDF] 2-4).
• Any creative work that is never fixed in a tangible medium, such as an improvised song that never gets recorded or written down, cannot be copyrighted (United States Copyright Office, Circular 1 [PDF] 2).
• Ideas, concepts and principles, processes and methods, and systems cannot be copyrighted. Copyright protects the particular expression of these things but not the thing itself (U.S. Copyright Office, Circular 33 [PDF] 1).
  • You cannot copyright the idea of a superhero or even the idea of a superhero who is also the king of a fictional African nation, but a particular expression of that idea included in an original work of authorship, the Black Panther as introduced in Fantastic Four #52, can be copyrighted.
  • You cannot copyright the process of natural selection. But an original work of authorship describing that process, On the Origin of Species, can be copyrighted. 

Some of these cases where copyright does not apply might be protectable under other types of intellectual property law, such as patents and trademarks (U.S. Copyright Office, Circular 33 [PDF] 1,3). 

• Any individual can be a copyright owner. Under U.S. law, copyright protection comes into existence immediately whenever an original work is fixed into a tangible medium without the need to register it or follow any other process. The author of that work owns the copyright (U.S. Copyright Office, Circular 1 [PDF] 1).
  • Which means that when ever you write a paper, snap a picture, record a video, make a drawing, or even write a discussion post for class, as long as what you did meets the standards for creativity and originality, you become the copyright owner for that work. 
• When multiple individuals collaborate to create a singular work, they share the copyright on an equal basis. If they created a collaborative work that is made of distinctive parts, then they each own copyright for their distinctive parts (U.S. Copyright Office, Circular 1 [PDF] 2-3 ).
  • So if two authors worked together on a novel, they would share copyright to the novel.
  • If two authors created a short story collection by each submitting 4 short stories, then each author owns the copyright to the short stories they created.
• There is a major exception to the rule that the author of a work is its owner: work for hire.
  • When you create an original work for your employer as part of your employment duties, the copyright is owned by your employer.
  • Work for hire also applies if you commissioned to create an original work for another under a contract that states that who you are creating the work for owns the copyright (U.S. Copyright Office, Circular 1 [PDF] 3).

Copyright holders are granted the following exclusive rights:

• Reproduce the work in copies or phonorecords 
• Prepare derivative works based upon the work
• Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending
• Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work
• Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
• Perform the work publicly by means of a digital audio transmission if the work is a sound recording (U.S. Copyright Office, Circular 1 [PDF] 2)

So copyright holders are allowed to make copies of the work, distribute and sell it, display it, perform it, and make derivatives from it. Most of these are fairly straightforward except making derivative works.

A derivative work is a new work of authorship that is created ("derived") from an existing copyrighted work. Common examples of derivative works include translations, adaptations (such as a TV version of a book), and updated or revised editions. A derivative work may also be copyrightable if it adds new original work (U.S. Copyright Office, Circular 14 [PDF] 1).

Copyright owners also have the power to grant others the ability to make use of these rights (U.S. Copyright Office, Circular 1 [PDF] 2). This is done through a license (Legal Information Institute, "License").  

The length of copyright protection will vary depending on how it was authored:

• Works by an individual author are under copyright for the life of the author plus 70 years.
• Works by multiple individual authors are under copyright for the life of the last living author plus 70 years.
• Works made under work for hire agreements or by anonymous/pseudonymous authors are under copyright for 95 years after publication or 120 years from creation, whichever is shorter (U.S. Copyright Office, "What is Copyright?").

Once these time periods have expired, the work enters the public domain. 

These lengths apply to anything published on or after January 1, 1978. The lengths of copyright protection have varied over time. To figure out the length of copyright for something published before January 1, 1978, start with the U.S. Copyright Office's Circular 15A: Duration of Copyright [PDF].

Copyright lengths have grown significantly over the years. Many critics believe that the current lengths of copyright subvert the original purpose of incentivizing creativity. This video, Copyright: Forever Less One Day, is a good introduction to those criticisms.  

The Constitution of the United States: A Transcription. U.S. National Archives and Records Administration, www.archives.gov/founding-docs/constitution-transcript. 

Crews., Kenneth D. Copyright Law for Librarians and Educators : Creative Strategies and Practical Solutions. Fourth edition, ALA Editions, 2020. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=2434646&site=eds-live&scope=site.

Legal Information Institute. “Intellectual Property.” Wex, Cornell Law School, www.law.cornell.edu/wex/intellectual_property.

---. "License." Wex, Cornell Law School, www.law.cornell.edu/wex/license.

United States Congressional Research Service. "ArtI.S8.C8.1.1 Origins and Scope of the Power." The Constitution Annotated. constitution.congress.gov/browse/essay/artI-S8-C8-1-1/ALDE_00000124.

United States Copyright Office. Circular 1: Copyright Basics. www.copyright.gov/circs/circ01.pdf.

---. Circular 14: Copyright in Derivative Works and Compilations. www.copyright.gov/circs/circ14.pdf.

---. Circular 33: Works Not Protected by Copyright. www.copyright.gov/circs/circ33.pdf. 

--- “What Is Copyright?” Copyright.gov, www.copyright.gov/what-is-copyright.