Copyright

What does copyright protect?

Here is the condensed, lawyerly answer: Copyright protects independently-created expression that possesses a modicum of creativity, is fixed in a tangible medium, and falls into one of the categories of work that are eligible for copyright protection.

There are five main elements to keep in mind here: Expression, independent creation, creativity, tangible medium, and categories of work. Let's crack each one open.

1. Copyright protects only expression. It does not protect ideas. It protects only the way those ideas are expressed. So, if you put pen to paper and write an essay about a beautiful Sunday-morning sky, you will own that particular essay, since that's your original expression, but you will not own the underlying idea, and anyone else will be able to write an essay about a beautiful Sunday-morning sky.

Relatedly, copyright does not protect facts. Why? Because facts are not created. They're not invented. They're discovered. Like ideas, they're free as the air we breathe.

For filmmakers, these principles mean that multiple people can make films on the same topic. Put another way, the fact that someone already made a film on a particular topic does not mean that you can't make a film on the same topic even if you use the same facts and ideas. But it does mean that your version of the film--i.e., your expression--cannot closely copy the existing film's version--i.e., the other film's expression. If it does, you can be sued for infringement.

2. Independent creation, which is one of the requirements of copyright eligibility, simply means that the expression is not copied. If your expression resembles existing expression, but you created it independently, it won't be infringing. So, if you are writing an essay about the Sunday-morning sky, and it happens to resemble an essay I wrote on the same topic, so long as you didn't actually copy my essay, I won't have an infringement claim against you.

3. Modicum of creativity means that there is some tiny bit quantum of originality in what you're doing. This is an extremely low standard, and in most cases as long as you don't copy something and what you create is not, say, a short and obvious factual statement ("what a lovely Sunday morning!"), it will be deemed original enough to qualify for protection.

4. A tangible medium is anything that makes the expression permanent. If you're writing with a pen, it would be a piece of paper. If you're typing on a word processor, it would be the document. If you're taking a photograph, it would be the file on the datacard (or, if you're using film, the negative). And, you guessed it, if you're making a film, it's the data file on the datacard.

The following types of works are eligible for protection:

• 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
• Architectural works

Registration

Copyright is automatic, and vests as soon as you create the work, so long as the work you create falls into one of the categories of content eligible for copyright protection. You don't need to register your work in order for it to be copyrighted, but you need to register your work if you want to initiate a lawsuit against an infringer and seek anything other than injunctive relief. Registration entitles you to statutory damages, so you don't have to prove actual economic harm, which can be very helpful if the value of your work is hard to prove (as is often the case with work that hasn't been released yet, for instance). It also creates a presumption that the copyright in your work is valid. Registration should be timely--ideally, within 3 months of publication, and, in either case, before infringement.

What rights does copyright grant?

Copyright law grants to the creator of a protected work a set of exclusive rights that collectively convey full and nearly absolute control over the copyrighted materials. The copyright owner can exercise all the rights freely. Another party may use those materials only with the owner's permission, however, which is generally given through a license, or by outright buying the copyrighted materials.

The five rights that are relevant to filmmakers are the rights to copy, to distribute, to create a derivative work, to publicly perform, and (the largely-dormant, rarely-invoked) right to publicly display.

The right to copy is self-explanatory--it's the right to duplicate the work. Only the copyright owner can make copies of the protected work. Other people can make copies only with the copyright owner's permission. (There is one exception: fair use.)

The right to distribute is the right to give those copies to other people, for a fee or for free. Distribution without permission from the owner is infringement.

The right to creative a derivative work is very important in the film industry, since it's the right that's exercised when someone wants to adapt a book, short story, article, or some other source into a film. It's also important for sequels--think of all the Rocky movies, each of which is a derivative work based on earlier versions. Only the copyright owner has the power to authorize derivative works. If someone writes one without permission (as someone actually did with Rocky), it will be deemed an infringement.

In the context of the film industry, the right to publicly perform is the right to show the film to other people in a public setting (e.g., a movie theater), and the right to display publicly is the right to show a still from a film in a public setting.

Here is language from actual legislation:

(1) to reproduce the copyrighted work in copies or phonorecords

(2) to prepare derivative works based upon the copyrighted work

(3) 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;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

When you license your work, you give some (or all) of these rights away, either exclusively or non-exclusively, for a limited (but sometimes very long) period of time. When you sell your work, you transfer all of these rights to the purchasing party.

How long does copyright last?

If the work was created after January 1, 1978, copyright will remain in effect for the author's life and another 70 years after the author's death. If the work is anonymous, pseudonymous work, or if it's a work made for hire, copyright will stay in effect duration for 95 years from publication or 120 years from creation, whichever is shorter.

Can more than one person own a copyrighted work?

By default, joint authorship means that each joint author owns the entire work, and can do anything and everything with it that a single owner could do. So, if you and I write a poem together and are deemed joint authors, either of us can license it to someone else for a fee or for free. If there is a fee, by default we would need to tell each other about the profit (this is known as the duty to account) and split it equally. The profit share can be adjusted through contract, however.

There is another key limitation: neither author can exclusively assign or sell the work to another party, since that would amount to an involuntary taking of the other joint author's property. So, exclusive licenses and assignments are possible only with all authors' permission.

Joint authorship could be created via contract--if, for example, we sign an agreement that says we jointly own what we create. More typically, however, joint authorship arises by operation of law, which means that we become joint authors by virtue of collaborating on something. The requirements are simple: we both need to intend to be co-authors as soon as we start collaborating, and, logically, we both need to contribute something to the work.

It's important to keep in mind that the contribution does not have to be equal. I can contribute 90% and you can contribute 10%, or the other way around, and we will still be authors (and, by default, have to split all profits equally).

How are rights to copyrighted materials transferred?

You authorize others to use your copyrighted materials by granting them a license, which is a contract that spells out which materials you're authorizing the other party to use, for how much money (if any), for what uses, and for how long. For example, if I am a photographer, I can license my photograph to someone to use in a commercial for three years in exchange for a fee of $10,000.

In that example, I would be the licensor. If I were a filmmaker who wants to use someone else's photographs in my project, however, and I signed an agreement with a photographer, I would be the licensee--that is, the person who is authorized to use someone else's copyrighted work.

In other instances, you might want to sell your copyrighted materials. For example, you might make a film that someone wants to buy after a scout notices it at a film festival. In that case, instead of temporarily licensing your film to someone, you would assign all ownership to the other party, just as you would sell a car or any other property. As with a license, the process is effected through a written agreement.

What is a work for hire arrangement?

If you create something on your own--for instance, take a photograph, or write an essay--you will automatically become the owner. As we saw earlier, in the US copyright vests automatically upon creation.

But there are two exceptions to this rule.

The first is an employment relationship. If you are employed by a company to perform photography services, for example, all the work you do in connection with your employment will automatically belong to your employer, and this is true even if you don't sign an employment agreement.

The second is an independent contractor arrangement. This outcome is usually effected through a written agreement that includes a clause which makes it clear that ownership of any copyrighted materials that you generate in connection with the services automatically transfer to the entity that engaged you. If you're a cinematographer, for example, you'll typically sign a services agreement that transfers to the production company ownership of all the footage that you shoot.

This concept is known as work for hire, and it means just what it sounds like--that someone hires you, as an employee or independent contract, to create work for them.

Since making films is a highly collaborative process, this is a very common method of ensuring that ownership of materials generated in connection with a film project transfers over to the production company, studio, and so on.