By Steven Weinberg, Holmes Weinberg PC.

Copyright law – the law that governs “content” and therefore all of entertainment, software and media – has become increasingly more important and more complicated than ever. Originally a creature of both state and federal laws, since 1978 copyright has been exclusively federal (with a few limited exceptions). U.S. copyright law finds its origins in Article I, Section 8, Clause 8 of the US Constitution, which protects the “Writings” of “Authors.” The term “writings” has been expanded to include literary (which includes software), musical, audiovisual (i.e. film and video), choreographic, photographic works and architectural works, works of fine art and other subject matter that are identified in the US Copyright Act, 17 U.S.C. 101 et seq. To qualify for protection, these works must be “original” and “fixed” in a “tangible medium of expression.” In other words, the works must not be substantially based on other’s protected works and cannot be ephemeral in nature.

Copyright protects such original works from unauthorized copying, distribution, transmission, public performance and public display. It also protects works derived from these protected works (called “derivative works”) from these same unauthorized uses. As can be imagined, each of these terms has had a long history of litigation and extensive legislative history, which means that one can never give advice without digging into these histories. And even then, the laws vary from federal circuit to circuit.

There are many misconceptions about what copyright protects and doesn’t protect. For example, many people mistakenly believe that if they make small changes in another’s work or if the work is found on the Internet it can be used without liability or qualifies as a “fair use.” These same folks or others mistakenly believe that a “funny” use of another’s work qualifies as a protected parody. And then there’s the mistaken believe that giving credit to the author of a work makes unauthorized use of the work OK. These are, as I have noted, mistaken beliefs. What is or is not a “fair use” or an otherwise non-infringing use varies on the circumstances and the federal circuit, and here too there is a long history of litigation, including a number of cases decided by the Supreme Court which have, unfortunately, only clouded the law. Social media and the ease by which digital images and video can be copied and modified has only added to the complexity.

And then there’s the issue of ownership of copyright, which itself is very challenging. Many business people, for example, believe that if they pay a non-employee to create a copyrightable work they own it. People who work together on a new work may think they have joint ownership, but that may not be the case. And many works employers believe are works made for hire are not so. And the list goes on.

At Holmes Weinberg we have expertise in copyright law and know how to avoid the legal icebergs. So before you try to give advice in this area, or litigate a copyright case, you may want to give us a call.