A Primer On Copyright David Moore

0. Preface
This document discusses copyright issues raised by members of the Appalachian dulcimer community as expressed on the Sweet Music Digest dulcimer discussion list. The document consists of two parts, a brief summary of copyright law and case studies based on issues raised by readers of the Sweet Music Digest. Where possible, references to the points and documents cited in section one will be referenced with the case studies. This is a non-definitive general guide. When in doubt about a specific aspect of copyright, especially if you are being sued, consult a lawyer.

Note: While I have attempted to be accurate with this information, neither the author of this document, nor the Sweet Music Digest, nor the editor of Sweet Music Index is responsible for the accuracy or applicability of the information contained in this document.

1. Copyright Basics
1.1. What is a Copyright?
A copyright is a collection of rights held by the creator of an original work. Copyrights address the circumstances in which copies of a work can be made, how the work may be displayed, how derivative works may be made and distributed, and rights of performance.

1.2. What can have a Copyright?
Any creative, original work, including books, videos, works of art, musical compositions and arrangements, and audio recordings. If the work can be fixed in some tangible manner, it may be copyrighted. Copyright does not apply to ideas but only to their material representation.

1.3. What is the basis of a Copyright?
Copyright is a right guaranteed in the Constitution of the Convention (Article 1, Section 8, Clause 8). Statutes passed by Congress define copyright further in the United States and common law decisions (in the courts) interpret and apply these statutes in individual cases.

The Copyright Acts of 1909 and 1976 cover the practical aspects of copyright in America. The Copyright Act of 1909 covers works created prior to January 1, 1978 and the Copyright Act of 1976 covers acts created after January 1, 1978. These Federal laws take precedence over individual states' laws.

For International copyrights, the terms of international deliberations such as the Berne convention of 1886, the General Agreement on Tariffs and Trade (GATT), and the Buenos Aires Convention apply.

1.4. How long do Copyrights last?
The Copyright Act of 1976 states that a work gains copyright as soon as it is fixed in a tangible format. It need not be published. Copyrights on works created after 1978 endure for the life of the author plus 50 years if the work is created independently by the author. For works created for hire, under a pseudonym, or anonymously, the copyright lasts 100 years from the date of creation or 75 years from the date of publication, whichever is shorter.

1.5. How does one obtain a Copyright?
In the United States the moment a work is written, recorded, or otherwise fixed in a tangible format, it is copyrighted. Prior to 1989 a work had to include a notice of copyright. However since 1989, the requirement has been waived, and no documentation is required.

However, copyright is tremendously strengthened if the work is registered with the U.S. Copyright Office. If an author wishes to file an infringement action in court, the work must be registered. If a work is registered prior to the commencement of an infringement activity or within 90 days of publication, the author is entitled to statutory damages and attorney's fees if the matter goes to court. Further, the holder of a registered copyright is presumed by the court to be the actual author of the work. The burden of proof is on the other side to disprove the copyright holder's rights to the work.

1.6 How does one indicate a work is copyrighted?
Section 401 of the Copyright Act of 1976 indicates a notice of copyright may be used. For visually perceptible copies, the notice consists of a symbol comprised of the letter C in a circle, or the word Copyright, or the abbreviation Copr.; the year of first publication of the work; and the name of the owner of the copyright in the work. For sound recordings, the symbol is the letter P in a circle.

1.7 How does one register a Copyright?
The U.S. Copyright Office publishes all the necessary forms and instructions. They are located at http://lcweb.loc.gov/copyright. One fills out the forms, submits them along with two copies of the work and a check for $20.00 (fee set in 1995). The Copyright Office personnel review the application and either return the registered forms or, if there are errors, request corrections.

1.8 Who may use copyrighted material
Anyone who has the copyright holder's permission. However, the Fair Use Doctrine permits, under certain circumstances, use of copyrighted materials without permission from the copyright holder. When a work is published in various media, copyright ownership may be held by several entities. Permission to use a work in one manner does not necessarily create permission for a different use.

1.9 What is Fair Use?
The Fair Use doctrine, codified in the Copyright Act of 1976, limits a copyright holders exclusive rights and defines the circumstances under which copyrighted works may be used without a copyright owner's permission. The Fair Use Doctrine applies whether or not a work is published. The Copyright Act of 1976 states:

...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect on the use upon the potential market for or value of the copyrighted work.

(Copyright Act of 1976, Title 17, USC, Section 107)

1.10 What uses are generally considered fair?
Fair use doctrine is most often applied to copying of copyrighted works without the copyright owner's permission. The U.S. House of Representatives Judiciary Committee determined three tests, brevity, spontaneity, and cumulative effect, be applied to determining what is fair use.

Brevity defines how much is copied. The amounts are 250 words for poems, 2500 words or 10 percent (whichever is less) of stories, articles, printed songs, etc.
Spontaneity refers to the fact that determination that the copies were needed could not be made sufficiently in advance to obtain permission.
Cumulative effect is the aggregate use of an author's work, without permission, that could harm the potential market for an author's work.

1.11 How does one get permission to reproduce or use copyrighted materials?
One generally contacts the author or the author's agent. One specifies the work in question, how many copies will be needed, and the purpose of the copying.

1.12 Where can one find more information about copyrights and copying?
Sources for this section were:

Legal documents:
The Constitution of the United States of America
The Copyright Act of 1909
The Copyright Act of 1976
The U.S. Congress, House of Representatives, Judiciary Committee, Report No. 94-1476.

Books:
Commonsense Copyright, A Guide to the New Technologies, R.S. Talab, McFarland & Company Inc., Jefferson, NC, 1986.

The Copyright Handbook, Stephen Fishman, Nolo Press, Berkeley, CA, 4th edition, 1997.

Patent, Copyright, and Trademark, Stephen Elias, Nolo Press, Berkeley, CA, 2nd edition, 1997.

David Moore is a musician and performer living in Maryland. Do you have comments or questions about his article? Contact Mr. Moore directly by e-mail. To learn more about him, see the Contributors section of Sweet Music Index.

some related web sites:
dulci-more public domain songbooks
Four songbooks available from Dulci-More: Folk and Traditional Musicians, a club in Salem, Ohio.

kitchen musician on the copyright extension bill
Information about proposed legislation to impose a moratorium on new material coming into public domain.

music publishers association--copyright imprints
A listing of copyright imprints of both domestic and foreign publishers.

music publishers association--copyright resource center
A copyright search center and a list of very good copyright-related links.

opposing copyright extension
A forum for informationon proposals to extend the term of copyright protection and what to do about it.

public domain information project
A reference site organized to help the ordinary person identify and access music in the public domain in the USA.

united states copyright office
"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"

The Web-page links in Sweet Music Index were collected by Laurel Krockstrom, edited and annotated by the editor. If you have questions or comments about these sites, contact the owner of the site in question. If you encounter any blind links, contact the Index; we will correct or delete them. For more about Ms. Krockstrom, see the Contributors section of Sweet Music Index. As always, if you know of a good Web page that fits a category in the Index, let us know and we'll take a look.