Creativity and Copyright

	Creativity and Copyright by Stephen Fishman Copyright © 1991 Nolo Press This article originally appeared in the Nolo News. If you wish to post it on-line or otherwise distribute it, first read Nolo's copyright policy. See the end of the article for information about related products. Ideas vs. Expression Side Bar--Copyright Rights Fiction Non-fiction Works in the Public Domain Enforcing Copyright Rights Side Bar--Types of Works Protected by Copyright Most people have seen the word "copyright" hundreds of times. It usually appears at the end of sports telecasts and movies and at the front of books and magazines. The word conveys this generally understood message: Don't use this material without our permission. No message could be simpler, it seems, but there are often serious questions about what exactly it is that can't be used.
Top \| Next	Ideas vs. Expression A copyright protects an author's tangible expression--the author's particular choice of words and the selection and arrangement of the material. It does not protect the ideas the author expressed. No one can claim an idea and prevent others from writing about it. This basic rule operates a little differently for works of fiction than for non-fiction, although the goal is the same: don't let authors impede the progress of knowledge by monopolizing ideas that should belong to everybody.
Back \| Next	Side Bar--Copyright Rights Copyright is a federal law that gives authors control over their creations. The author has the exclusive right to determine who, if anyone, can make copies of a poem, book, article, essay, letter, marketing brochure or other work. Authors don't have to do a thing to get this right--it's automatic. The instant your pen, typewriter or printer produces something original--not copied from someone else--it is protected under the copyright laws. An author also has the exclusive right to: sell or distribute the work display the work perform the work and prepare adaptations of the work (derivative works) The copyright owner can sell all or part of these rights to others. For instance, a novel's author may sell the exclusive right to make copies to a publisher and the exclusive right to make adaptations to a movie company.
Back \| Next	Fiction If you write a work of fiction--a play, novel, poem or short story, for example--your words can't be copied without violating your copyright. But the underlying idea--for instance, a police story or an unrequited romance--is not protected by copyright. Similarly, the central idea or theme of a novel or short story can be used by others without the copyright owner's permission. A fictional work's setting--for instance, romance on a French island in 1920--doesn't come within the copyright statute. Nor does the work's plot--the sequence of events by which the author expresses an idea--unless it is truly original. Very few plots are that original. For instance, if you write a novel about a spunky heroine who triumphs over adversity in the Civil War, you have the right to control your words but not the story line. Anyone else is free to write a novel with a similar character and plot. Many authors rebel at the idea that others can use their plot lines, but the alternative would let authors tie up basic plots for decades, to the detriment of the arts. Other aspects of fictional works that aren't subject to copyright protection are: events, scenes, situations or details that necessarily follow from the theme or setting; stock characters--standard types such as the silent, strong cowboy or hard-drinking private detective; facts from the real world used in the work; the writing style and individual words and phrases--for example, the terse style of Ernest Hemingway or the new words and phrases in George Orwell's 1984 such as "newspeak" and "I love big brother"; and literary devices--for instance, flashbacks and alliteration. Despite this long list of unprotected aspects of a fictional work, an author might be able to win in court if enough of them together showed up in a later work by someone else.
Back \| Next	Works in the Public Domain Material that is not protected by copyright is in the public domain--free for anyone to use without permission. The public domain includes: Material no longer protected by copyright, including anything published more than 75 years ago. Material in which no copyright ever existed, such as materials printed by the U.S. government. Ideas, including procedures, processes, systems, methods of operation, concepts, principles and discoveries. Facts--scientific, historical, biographical or news of the day.
Back \| Next	Non-fiction The rules are a little different for non-fiction works, because it is harder to show that an author's expression in a non-fiction book was copied. Non-fiction works, by definition, deal with facts which themselves are not protected. Copyright does not protect facts that an author discovers in the course of research, even if an author spends considerable effort conducting the research. Nor does it protect the author's interpretation of facts--theories or hypotheses about what the facts show, or the book's physical and visual attributes, including choice of typeface style and size, spacing and juxtaposition of text and illustrations. But as long as the facts are described in a unique way, the expression will be protected even if the facts aren't. Scientists Stephen J. Gould and Lewis Thomas, for example, have written books about science whose language transcends the facts they are based on. The distinctive prose in their books receives far more protection than that of a run-of-the-mill scientific treatise. The more that writing transcends the mundane and purely functional, the more copyright protection it will receive. For instance, consider an unadorned factual account of Paul Revere's famous midnight ride during the Revolutionary War that contains the following: "On April 18, 1775, the Boston minutemen learned that the British intended to march on Concord with a detachment of 700 men. Paul Revere arranged for a signal to be flashed from the steeple of the Old North Church in Boston. Two lanterns would mean that the British were coming by water, and one, by land." Copyright would not be of much use to the author of this passage. If anyone else wrote a brief factual account of Paul Revere's ride, it would necessarily have to contain sentences looking very much like those in this paragraph. If the author sued, alleging a copyright violation, the law's policy against granting an author a monopoly over facts would mean that a court would likely rule that there was no copyright violation. In contrast, copyright would protect a highly creative work containing essentially the same facts about Paul Revere's ride. Consider this: Listen, my children, and you shall hear Of the midnight ride of Paul Revere, On the eighteenth of April, in Seventy-five. Hardly a man is now alive Who remembers that famous day and year. He said to his friend, "if the British march By land or sea from the town to-night, Hold a lantern aloft in the belfry arch Of the North Church tower as a signal light, One, if by land, and two, if by sea." These stanzas were written by Henry Wadsworth Longfellow over 100 years ago, and the copyright has expired, but let's pretend they were written just the other day. This verse conveys almost exactly the same facts as the paragraph above, but would be protected because the author's words are embellished and highly distinctive. The sequence of words is not dictated solely by the facts. It is the unique word sequence itself, not the facts, that is the work's main attraction. No one needs to copy this particular word sequence in order to convey the same facts or to write another work of fancy about Paul Revere's ride. A person who copied even the first two lines would probably be found to have infringed on the copyright in the poem.
Back \| Next	Enforcing Copyright Rights The fact that an author has the legal right to control a work isn't the end of the story, of course, as anyone who has used a VCR or a photocopy machine readily understands. Enforcing this right can be difficult. If someone violates (infringes) an author's rights under the copyright law, the author may sue in federal court, demanding compensation for economic loss and a stop to further harm. Unless the author has already taken certain steps, however, the lawsuit will likely cost far more than the author will win. To make a lawsuit economically feasible, the author must have: placed a copyright notice on the work (the little c and a name and date), and registered the work with the U.S. Copyright Office. Once this is done, the law gives the author a much better chance to win a substantial amount of money from the infringer.
Back \| Top	Side Bar--Types of Works Protected by Copyright This article discusses written works, but copyright also protects such creative expressions as: music art photography sculpture motion pictures videos sound recordings computer software databases pantomimes choreographic works architectural designs toy designs Related Products: Books The Copyright Handbook: How to Protect and Use Written Works Copyright Your Software Books with Disks Software Development: A Legal Guide (Book with disk-PC) The above links are connected to Nolo's on-line store where you will find a detailed description of each product. Nolo's Home Page \| Store \| How to Reach Us \| Legal Encyclopedia