The purpose and nature of copyright law
The purpose of copyright law: The purpose of copyright law is to stimulate the creation of as many works of art, literature, music and other “works of authorship” as possible, in order to benefit the public. The United States recognizes no absolute, natural right in an author to prevent others from using or copying his work. The copyright laws give authors limited property rights in their works, but only for the ultimate purpose of benefiting the public by encouraging the creation and dissemination of more works. The author’s interest is secondary to that of the public and when there is a conflict between the public’s interest and that of the author; courts generally put the public’s interest first.
The nature of copyright law: As is the case with other intellectual property doctrines, copyright law attempts to reach an optimal balance between the potentially conflicting public interests of: (1) encouraging creativity by giving exclusive property rights in creation; and (2) fostering a competitive marketplace by giving the freest possible public access to the works of authorship and the ideas they encompass. The balance in copyright is drawn by limiting property rights to the author’s particular method of expressing an idea or information. Copyright never gives rights in the idea being expressed, or in facts or other elements of the public domain which an author may incorporate into his work. Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the original author’s particular way of expressing the ideas or facts. In addition, even those rights granted inn the author’s expression are limited in duration and are subject to certain exceptions permitting public use under limited circumstances.
An example: X does an oil painting of a particular mountain. In doing so, he chooses a specific angle and lighting, and emphasizes particular colors and textures. The subject matter — the mountain — is the idea being expressed. X does not, by painting the mountain, obtain the right to prevent others from copying his choice and combination of angle, lighting, color, and texture, because that is his particular way of expressing the idea. Likewise, if X conceives of a new theory about how the universe was created, and describes it in detail in a published article, the theory is an idea, or an interpretation of fact, and is not protectible. X cannot, through copyright law, prevent others from expressing the same theory, even if they learned of the theory from X’s article. Likewise, to extent that X incorporated facts into his article, he cannot prevent other from using those facts in other writings. X may, however, be able to prevent them from copying the particular means he used to express theory or facts in his article.
What does a copyright protect?
A copyright protects original works of authorship like literary, dramatic, musical, artistic, and certain other works. That translates to artistic expression and sometimes to dry, mechanical writing such as computer source code.
Do I have to register my copyright?
Why should I register my copyright?
Do I have to mark things with ©?
No. There is no requirement in the United States for this to be marked. However, if you use this mark it would be hard for an infringer to convince a court that he was innocent of a mistake.
What if I have been accused of copyright infringement?
Contact me as soon as possible. Penalties can be severe, but an intellectual property attorney can usually resolve the matter outside of court.
What if someone is infringing my copyright?
What is a Copyright Troll?
What if someone stole my content and put it on their website?
You might be surprised just how often this happens.
Often this occurs when a site scrapes contact from blogs and reposts it, hoping to drive traffic to their site and result in some ad revenue. Other times, the web designer needed some content for a layout but didn’t want to use Lorem Ipsum, and they forgot to remove it before the site went live.
More rare is when someone purposefully steals content, but it happens.
Usually, if the infringement was either because of a content scrape, or because of a mistake, the site owner promptly responds and takes care of it. If they don’t, we can send a takedown notice to their service provider. Of course, in some instances, a lawsuit is in order.
What is a Pauper’s Copyright?
What is fair use?
Can I use this song my [wedding video, promotional DVD, YouTube compilation of cat videos, ect]?
I own a bar and we have a jukebox and live bands. What do I need to know?
How do I get pictures for my website?
But everybody else does it [file sharing, copying ‘free’ content from the internet, making copies of works, using unlicensed music].
What about restaurant music licensing fees?
Licensing fees are generally paid yearly and can vary depending on a number of factors including: whether you charge a cover charge, if the music live or audio only, the size of your location, how many nights a week you offer music, and whether you include visuals as well.
What if I don’t pay?
The short answer? Do the right thing and pay your licensing fees. You are supporting artists and allowing them to continue doing what they do best. As technology has developed, the ability for artists to receive fair payment has diminished, a lot. If you are thinking it’s not worth the yearly cost, here is what you are risking.
It is possible to avoid paying licensing fees due to the sheer fact that there are too many businesses in the United States to keep track of every single one at all times.
However, if you are caught playing music you could face federal penalties of $750 to $30,000.
When should a small business pay ASCAP or BMI?
A growing number of small businesses are being unpleasantly surprised with letters from performing rights organizations, such as American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), with indirect or direct threats of copyright infringement. The performing rights organizations, or PROs, which manage musical copyrights on behalf of their owners, request that businesses pay a licensing fee for playing in their shops musical recordings from the PROs repertoires. Small mom and pop stores, for whom legal advice may be prohibitively expensive, must then decide whether to pay the PROs or disregard the letter and possibly face a court action for copyright infringement. Consultation with an intellectual property attorney is advised.
The law provides two defenses against claims of infringement of the public performance right?
Assuming that a small business is not authorized to play the recordings, there are the two potential defenses against a claim of infringement: (1) whether the “homestyle exemption” applies to the situation; and (2) whether the playing of music recordings in the business can be considered a non-public performance.