Copyright is a type of intellectual property right that protects certain original works. Copyright laws work to provide authors with exclusive rights to their works. Any unauthorized use could amount to copyright infringement. This lesson explains copyright law and copyright infringement.
The Copyrighted Tattoo
The Hangover Part II provided an unexpected lesson in copyright law. In this Warner Bros. movie, the characters engage in a night of hard drinking in Bangkok. Stu wakes up surprised to find a tribal-inspired tattoo on his face. The unusual tattoo is identical to that of famous boxer Mike Tyson's. This connection is most likely purposeful, since Tyson appeared in the original The Hangover movie. But, at least one person didn't think the resemblance was funny. Though Tyson's tattoo was eight years old at the time, Tyson's tattoo artist registered a copyright for the artwork only a few weeks before the movie's official opening. He then filed a lawsuit against Warner Bros. for copyright infringement, saying he never authorized the use of his design in the movie or in advertisements.
Copyright infringement is a federal, civil cause of action. It occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Warner Bros. argued that they didn't need the tattoo artist's permission to display his work because the use of the tattoo was a parody. A parody is a work that ridicules another, usually well-known, work by imitating it in a comic way. A federal judge refused to issue an injunction that would delay the movie's release, but ruled that the tattoo artist had a valid cause of action that should be heard. Instead, the parties settled the dispute about a month after the movie opened.
A tattoo is one type of an original work of authorship, and can, therefore, be copyrighted. A copyright is a form of legal protection automatically provided to the authors or creators of original works. Copyright protection is vast and very inclusive. It applies to items such as original literary, dramatic, musical, choreographic, photographic, architectural, and artistic works.
It's important to note, though, that ideas can't be copyrighted. Copyright protection only applies to tangible forms of expression. For example, let's say that I have an idea for a song. I've been working on the lyrics in my head. These lyrics aren't copyrighted. Then, late one night I jot down a few verses of the song on a notepad. These verses are automatically copyrighted because they're an original and creative work that's now been expressed in a tangible form. I don't have to actually publish this work in order to have copyright protection. Also, note that the copyright belongs to me, since I'm the author or creator. But, let's say that I write songs as a part of my job, and I'm writing this song in the capacity of my employment. In this case, my employer will automatically own the copyright.
Copyright protection automatically attaches once an original work is expressed in tangible form. This is known as an unregistered copyright and is represented by the circle c designation. An unregistered copyright allows an author the exclusive right to reproduce, sell and perform his or her copyrighted work. This means that an author or creator could sue for an injunction to prohibit, or cease, the unauthorized use of the material. Mike Tyson's tattoo artist asked for, but was denied, an injunction. He wanted to stop the movie from being shown since it featured his copyrighted work without his permission.
In order to bring a lawsuit for copyright infringement, the author or creator must first register his or her copyright with the U.S. Copyright Office. This requires filing an application and paying a fee. A registered copyright is designated with a circle r symbol. Generally, it allows the author or creator the exclusive right to control the use of the material for his or her entire lifetime. A registered copyright won't expire for another 70 years after the author's death. The author can designate the owner of the copyright through his or her will, just like any other property right.
Like an unregistered copyright, these rights include:
- The right to reproduce, copy, or distribute the original work;
- The right to create new works based on the original work;
- The right to perform the work; and
- The right to publicly display the work.
The registered, copyrighted material becomes an official government record. Once a copyright is registered, the author is protected under the Federal Copyright Act. This is the main set of laws that govern copyright infringement. Copyright infringement is a federal tort. A registered copyright holder can bring a lawsuit for copyright infringement and ask for an injunction, money damages and attorney's fees should any of the author's copyright privileges be violated. This is considered to be an added level of protection over that afforded for an unregistered copyright, as these are additional remedies provided to an author holding a registered copyright. For these reasons, registration is recommended.
Exceptions to Infringement
It's important to note that not all unauthorized uses of copyrighted material will amount to copyright infringement. A party can use copyrighted material without the author's authorization if the material is used for fair use. Fair use is any copying of copyrighted material done for a limited and transformative purpose, such as to comment upon, criticize, or parody the copyrighted work. This legal definition is purposely vague. It's meant to allow an open interpretation for the judges who must apply it to particular situations. Generally, the doctrine of fair use allows the legal use of copyrighted material in such things as commentary, criticism, parody, search engines, news reporting, research, and teaching.
Remember Warner Bros. claimed that their use of the replicated Tyson tattoo was a parody. Parodies are covered under the fair use doctrine. Normally, a fairly obvious use of the copyrighted work is permitted in a parody, in order to allow a successful comedic moment. This case settled before this issue could be heard in court, but what do you think? You've seen many works of parody such as this one. Did Warner Bros. commit copyright infringement?
Another exception to copyright infringement is public domain. When a copyright expires, the work then becomes a part of the public domain. Works in the public domain may be used by anyone and for any reason. The public has free and unlimited access. For example, the novel Moby Dick is famously a part of the public domain. You may copy it, perform it, share it, or make a movie from it without first obtaining any permission from anyone.
A third exception is licensing. Licensing is when a copyright owner gives permission to a particular party to use the copyrighted work for a specific reason. For example, an author might give a theater company permission to reproduce and perform his work. Or, the creator of a song might give an advertising agency permission to use parts of her song in a television commercial.
Let's review. Copyrights protect original work of authorship. This includes such things as literary, dramatic, musical, choreographic, photographic, architectural, and artistic works. Unregistered copyright protection automatically attaches once an original and creative work is expressed in tangible form.
This protection allows an author the exclusive right:
- To reproduce, copy or distribute the original work;
- To create new works based on the original work;
- To perform the work; and
- To publicly display the work.
An author can sue for an injunction if the party uses his or her work in any of these ways, and without the author's authorization. However, an author can sue for copyright infringement if the author has registered his or her copyright with the U.S. Copyright Office. Copyright infringement is the unauthorized use, in any of these same ways, of a registered copyright. An author can register a copyright by simply filing an application and paying a small fee. Registration generally allows an author the exclusive right to the work for his or her lifetime plus 70 years. A copyright infringement case allows the author to ask for an injunction, money damages and attorney's fees.
Keep in mind that there are some exceptions to copyright infringement. If the copyrighted material is used in a commentary, criticism or parody, it may fall into the fair use doctrine. If the copyright has expired, the material will belong in the public domain. If the copyright owner gives permission for the material to be used for a specific purpose, then that material may have been licensed.
After watching this lesson, you should be able to:
- Define copyright
- Identify an author's copyright rights
- Distinguish between unregistered and registered copyright protections
- Define injunction
- Explain exceptions to copyright infringement