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What is a Copyright and What Does it Give Me?

Posted by attorney Alexander Montgomery
Filed under: Constitutional law

Copyright protection finds its roots in Article I, Section 8, Clause 8 of the Constitution, which gives Congress the power “[t]o 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." Through this Constitutional power, Congress passed the Copyright Act of 1976. This Act governs all copyrights in the United States. A copyright protects original works of authorship, like literary works, musical works, movies, photographs, and paintings. Copyrights differ from patents, which offer protection to novel inventions or processes, and from trademarks, which act as source identifiers for particular goods or services.

How Do I Get a Copyright?

A copyright is automatically given to any person who creates an original work and fixes that work in some medium. For example, if you take an original photograph, write an original poem, or paint an original picture, you most likely have a copyright in that work. To be original, the work must (1) be independently created by you (in other words, not copied from elsewhere) and (2) display a minimum level of creativity. A copyright is created at the moment this original work is fixed in some form and no additional filing or paperwork is necessary (although there are significant advantages to filing your copyright with the U.S. Copyright Office).

I Have a Copyright…So What?

Once a person obtains a copyright in a work, that person has five exclusive rights that only a copyright holder in the work is permitted to hold unless licensed. These rights are:

1) The exclusive right to reproduce the copyrighted work;

2) The exclusive right to prepare derivative works based upon the copyrighted work;

3) The exclusive right to distribute the copyrighted work to the public;

4) The exclusive right to perform the copyrighted work publically; and

5) The exclusive right to display the copyrighted work publically.

For example, let’s say you write an original short poem. As soon as you write this poem down, you have a copyright in the poem and are entitled to all the rights listed above. Only you may decide whether to make copies of the poem, whether a movie will be made based upon the poem, whether copies of the poem will be distributed publically, whether it will be displayed to the public and whether someone may recite or perform that poem publically. Should anyone violate any of these rights, that person has likely infringed upon your copyright.

Although the rights listed above are exclusive to the copyright holder, they may be licensed to others. For example, if you do not wish to fund and direct a movie based upon your short poem, you may license the right to create a derivative work (movie) based upon that poem to another. Licensing may be very profitable to the copyright holder if his or her work becomes popular.

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