Article by William S. Ramsey, P.C.

COPYRIGHT - What does it mean to me?

Copyright refers to a bundle of rights in copyrighted original creative works. These include the exclusive right to reproduce the work in copies, to prepare derivative works based on the work, public distribution of the copies, public performance of motion pictures, plays, music, etc. and the public display of pictures, sculpture etc.

What may be copyrighted?

Copyright resides in original works of authorship which are fixed in any tangible medium. Copyright is not all or nothing - a work may have some parts which are protected by copyright, and some parts which are in the public domain - not protected by copyright. The scope of copyright is best understood in terms of things which cannot be copyrighted. The law specifically excludes from copyright "any idea, procedure, process, system, method of operation, concept, principle, or discovery". Copyright protects expression but not the idea expressed. This subtle concept is best illustrated by an example.

Rural Telephone Service operated a telephone company in Kansas and published a telephone directory of its subscribers. Feist Publication, Inc. published area-wide telephone directories which included the area served by Rural. Rural refused to license its directory to Feist, so Feist simply copied Rural's listings, leading to a lawsuit which reached the Supreme Court. The Court held that there was no copyright in Rural's compilation of subscribers as it was a mere collection of facts and lacked creativity. The Court specifically rejected the "sweat of the brow" concept that the amount of work involved in creating a compilation would support copyright.

Copyright in a compilation of facts could exist, however, if the compilation featured an original selection or arrangement of the facts. To give an example, if you are writing about baseball, there is no copyright in the batting averages, RBIs, or ERAs; however, you can expect copyright protection for an original statistic, such as percentage of strikeouts by pitchers after three balls (or some equally obtuse statistic).

In a recent case, the American Massage Therapy Association compiled a directory with members' names and addresses. An unrelated publisher of the magazine Massage Today copied the directory into its database, used the directory as a mailing list, and also sold and rented the database to others. In the resulting lawsuit, the court decided that the list of names and addresses lacked the creativity to sustain copyright. Massage Today's publisher was free to use the information in the Association's directory.

Fair Use.

Fair use is the privilege to reasonable use of copyrighted material without permission of the owner. Fair use attempts to balance the public's right of free expression under the first amendment and the right of an author to control his or her works. Fair use depends on the purpose of the use. Four factors are generally used in evaluating whether use is fair use.

1. Purpose and character of the use. Commercial use argues against fair use, while noncommercial educational purposes support the possibility of fair use.

2. Nature of the copyrighted work. Fictional works have more protection against fair use than non-fiction. Nonpublished works are more protected from fair use than published works. Parodies enjoy considerable latitude under fair use.

3. Amount and substantiality of portion used. The copying of a paragraph or two of a novel may be fair use, in part because of the minimal proportion of the novel which was used. On the other hand, the use of such two paragraphs may not be fair use if the paragraphs are essential to the story as a whole. Copying of 20 lines of a poem consisting of only 20 lines probably is not fair use as the entire work would have been copied.

4. Economic effect of use. This is the most important factor. Presumably any use has some detrimental effect on the value of the work to the creator; the issue is the degree of impairment. Commercial use is unlikely to be fair use, while noncommercial use may be.

The bottom line.

Many people routinely create copyrightable work, for example, computer software and written educational material. If the work involves facts, the author should include some original selection or arrangement of the facts, thereby creating copyrightable matter. Authors should register the copyright in their works if they would be hurt financially by infringement of their copyrights.

William S. Ramsey, Esq. is an intellectual property lawyer who may be reached at 410-740-2225 or email: Not Legal Advice.