Copyright Vocabulary

FAIR USE

is the right of the public to make reasonable use of copyrighted material in special circumstances without the Copyright Owner's Permission. The United States Copyright Act recognizes that fair use of a copyrighted work may be used "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research."

FIRST SALE DOCTRINE

recognizes that ownership of a copyright is different from ownership of a material object that is the subject of a copyright.

INTELLECTUAL PROPERTY

refers to all kinds of intangible (not physical) types of property that people can own. Unlike physical property, Intellectual Properties are solely creations of law and have no independent existence. Intellectual Property under U.S. law encompasses rights in copyrights, patents, Trademarks, as well as Trade Secrets, Rights of Publicity and Moral Rights.

PERFORMING RIGHTS

An owner of a copyright has many Exclusive Rights, including the right to perform his or her own song (the Musical Composition) in public.

EXCLUSIVE RIGHT

A Copyright Owner owns all or any one of the "exclusive rights" of copyright in a work.

STATUTORY DAMAGES

A Copyright Owner, who brings a case for the Infringement of a work that has been registered with the United States Copyright Office, may ask the court for "statutory damages" instead of actual damages and lost profits. The "statutory damages" will be decided by the court but must be between $200 - $150,000 for all infringements of each work.

FIXATION

A work is not entitled to copyright protection until it is "fixed in a tangible medium."

TERM

Copyright protection does not last forever. A copyright has a "term" or length, depending on when the work itself was created. For works created after January 1, 1978, the term of copyright is the life of the author plus 70 years or, if the work is a Work-for-Hire, the term is 95 years from first Publication or 120 years from creation, whichever expires first. For works published or registered prior to January 1978, the term of copyright is 95 years.

TITLE

Generally the title of a literary work or of a song is not entitled to copyright protection. However, some courts are recognizing that a well-known title may deserve protection under other theories such as Trademark or unfair competition where the title has become well-known and there is a strong connection with a certain product or company in the mind of the public (such as "Gone With The Wind").

ROYALTY

In exchange for a License to do something with a copyrighted work, the person who wants to use the work (referred to as the "licensee") will usually have to pay a certain amount of money, called a "royalty," to the Copyright Owner or other person licensing out the work (referred to as the "licensor").

IDEA: Section 102 (b) of the United States Copyright Act states:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which is described, explained, illustrated or embodied in such a work. Ideas, methods, concepts, systems and devices are not entitled to copyright protection. This language means that no one can monopolize an idea or subject matter under a claim of copyright. Put another way, copyright law protects the Expression of an idea but not the idea itself. Can you imagine if the people who were the first to write stories about a girl wanting to play basketball or about a boy and a girl falling in love were able to stop everyone else from writing stories about those subjects? It would make it really hard to create original works and would defeat the purpose of the copyright law, which is to promote the progress of the arts and to secure for the public the benefit of authors' creative activities.

LICENSE

In order to exercise one or more of the Exclusive Rights of copyright, you need a "license" from the Copyright Owner. The license is the permission granted by a copyright owner (also know as the "licensor") to the person requesting the right to exercise one or more of these exclusive rights (also know as the "licensee"). For example, if you wanted to create a movie based on a book (which would be a Derivative Work), you would need a license from the owner of copyright in the book.

PERMISSION

In order to exercise one or more of the Exclusive Rights of copyright, you need a get permission from the Copyright Owner. That permission is called a License, by which a copyright owner grants the right to exercise one or more of these rights to another person or company.

EXPRESSION

The words you use to tell a story, the picture that you paint, and the lyrics to a song you wrote are all types of "expression." Until you set these things down on paper or in a Recording, they are nothing more than ideas. Ideas in and of themselves are not protectible by copyright, only the way they are expressed is protected. The copyright law protects expression only when it is Fixed in a way that others can read or see it.

INFRINGEMENT

Under Section 501 of the United States Copyright Act, anyone who violates any of the Exclusive Rights of the Copyright Owner is a copyright "infringer."

MECHANICAL LICENSE

Under the United States Copyright Act, the right to use copyrighted songs in making Sound Recordings for distribution to the public for private use is one of the Exclusive Rights of the Copyright Owner. However, the Copyright Act provides that once a copyright owner has recorded and distributed such a work to the public in the United States or permitted someone else to do so, a "compulsory mechanical license" is available to anyone else who wants to record and distribute the work in the United States. The mechanical license will require that person to pay license fees at the "compulsory" rate set in Section 115 of the Copyright Act. The "compulsory" royalty rate as of January 1, 2000 is $0.0755 per use for Musical Compositions that are 5 minutes or less and the rate is $0.0145 per minute of playing time for compositions over 5 minutes.

PUBLIC DOMAIN

Works that are in the public domain belong to everyone and can be freely used without compensating the authors.

COPYRIGHT NOTICE

You may have seen on a book the following notice "© [name of copyright owner] [year of creation]" or, in the case of a CD or other Sound Recording, "[name of copyright owner] [year of creation]."

PUBLICATION/PUBLISH

a work means to distribute copies of that work to the public.

MORAL RIGHTS

are certain rights given to artists who have created visual works of art (such as, a painting or sculpture) to protect the integrity of her name and works.

SOUND RECORDING

describes the capturing of a musical performance and its sounds in any format, such as a cassette tape, compact disc (CD), or MP3 file.

PARODY

involves the use of elements of a previously existing work in a new work that, at least in part, comments on or criticizes the previously existing work and is usually meant to be funny. A parody of a copyrighted work can be a Fair Use. However, just because something is funny (like taking the melody of an existing song and writing funny lyrics to that melody) does not necessarily mean it is a parody.

MUSICAL COMPOSITION

is a musical work, such as a song or piano piece, created by a composer using melody (tones and rhythms), harmony (chords), and lyrics.

COPYRIGHT HOLDER/COPYRIGHT OWNER

is a person or a company who owns any one of the Exclusive Rights of copyright in a work. Copyright ownership is separate from the ownership of the work itself. For instance, when an artist sells a painting to someone, the artist usually retains the copyright in the painting. That means the buyer of the painting will have it to keep in her house or office but the artist will retain the rights to copy, display and distribute the painting, and make other works based on the painting. Copyrights not only can be sold independent of the work itself, but the different exclusive rights can also be sold separately. For instance, an artist could sell the right to make copies of his artwork to one person and could sell the right to publicly display it to someone else.

RIGHT OF PUBLICITY

is a right under state law (as opposed to under federal law like copyright) that every person has the right to control the commercial use of his or her identity.

PATENT

is a type of Intellectual Property that relates to inventions. Like Copyright, patents give the creators of inventions a certain "bundle of rights," including the exclusive rights to (1) make copies of the invention, (2) use the invention for whatever purposes it was intended, (3) import copies of the invention, (4) sell copies of the invention, and (5) offer copies of the invention for sale, all for up to 20 years.

MEDIUM

is a type of artistic technique or means of Expression related to the materials used or the creative methods involved in the production of the work.

COMPILATION

is a work formed by collecting preexisting material or facts and selecting or arranging them in an original way. A Collective Work is a type of compilation.

DERIVATIVE WORK

is a work that is "based upon one or more preexisting works."

COLLECTIVE WORK

is a work, such as an encyclopedia or anthology, that includes a number of separate smaller works.

COPYRIGHT

is actually a "bundle of rights" that the creator of a work is entitled to control if the work is "an original work of authorship fixed in a tangible medium of expression."

SYNCHRONIZATION LICENSE

is an agreement by which the Copyright Owner of Musical Composition allows its use in a visual work.

MASTER USE LICENSE

is an agreement by which the Copyright Owner of a Sound Recording (usually, the record company) grants Permission to someone else to use the Sound Recording in a visual work.

TRADE SECRET

is any piece of information which a person or company uses in its business and protects as secret. Trade secrets give businesses a competitive edge and if its competitors had access to the information, such access would harm the trade secret owner's business. State law prevents others from taking and using trade secrets.

TRADEMARK

is any word, name, symbol or device used by a person or a company to identify and distinguish its products (as opposed to services, which are covered by Service Marks) from the products of others in the same business.

SERVICE MARK

is any word, name, symbol or device used by a person or a company to identify and distinguish its services (as opposed to products, which are covered by Trademarks) from the services of others in the same business.

WORK-FOR-HIRE

is either (1) a work prepared by an employee as part of her work, in which case the employer owns the copyright in the work, or (2) a work specially commissioned or ordered as a contribution to a Collective Work or Compilation, in which case the person or company commissioning or ordering the work owns the copyright in the work.