As creative artists may know, it takes a lot to create a work of art. From money, time and energy, they devote much of their lives to the completion of their works. Copyright law represents the social contract where those who author creative works can benefit from their work, while society gets the right of ownership after the expiration of an exclusive term of copyright ownership for the author and his heirs. Born in Article I, Section 8, Clause 8 of the U.S. Constitution, copyright’s goal is to provide an author a temporary monopoly over his work; after the term expires, ownership of the copyrighted work lapses into the public domain, where the work is free for all to use and enjoy.
Copyright law allows those who fix works in a tangible medium of expression to control the use and dissemination of those works. This bundle of rights includes the right to publicly perform, the right to display, the right to create derivative works, and, of course, the right to make and sell copies of each work. Should a third party use a copyrighted work without the author’s permission, that use can constitute copyright infringement unless it falls into one of a number of statutory exceptions, such as fair use.
One example of a heavily protected creative work is Mickey Mouse. This mouse turning a steamboat wheel while whistling a catchy tune first appeared in the film Steamboat Willie and is one of the most well known cartoons of all time. On average, 97% of people recognize Mickey, a recognition rate higher than that of Santa Claus.
The immense commercial success that America’s favorite mouse has brought its owner, the Walt Disney Company, can in part be attributed to the copyright monopoly Disney has enjoyed since Mickey’s creation. Copyright allows Disney to determine if and when other people or companies can use Mickey for themselves; when Disney has licensed the use of Mickey for various consumer products, it has reaped royalties on sales of those products. In this way, copyright guarantees that authors and not imitators receive the commercial benefits of their works; copyright also protects the author from other people using the work for commercial use without authorization. Copyright is therefore the legal engine behind commercial success of creative works.
Copyright has set expiration dates. (Trademarks, by contrast, are valid until the owner stops using the mark in commerce.) Since 1928, Disney has maintained a copyright of Mickey Mouse. In 1976 and 1995, Mickey’s copyright was set to expire; both times, Disney and other copyright owners stepped in and lobbied for an extension. These lobbying efforts have sustained Disney’s copyright in Mickey for 40 years more than was available when Mickey was introduced. Under the current law, copyrights like Mickey’s will expire in 2019, unless corporate copyright holders lobby Congress for another extension. Without another extension, Mickey will go into the public domain.
Just because a copyrighted work lapses into the public domain does not mean a copyright owner can no longer benefit from it financially. Take the designed board from the game Monopoly, for which Parker Brothers owned the original 1936 copyright. The board’s copyright expired in the early 1990s, but the Monopoly trademark was still valid due to its continued use in commerce. Hasbro, which took over ownership of the Monopoly franchise from Parker Brothers, understood that competitors would wish to use the famous board design in their own games. It also realized the value of such games was greatly enhanced when associated with the Monopoly games. Hasbro chose to license their trademark to other board game companies, who could then apply the trademarked name to the lapsed game board – and consumers have purchased games like USAOpoly ever since.
All the while, Hasbro could receive license fees and royalties for the use and sale of its intellectual property even though one of the most commercially valuable works – the game board – fell into the public domain. This shows how copyright owners may have a full portfolio of intellectual property rights based off of one copyrighted work. Owners can assert those rights through strategic means like licenses. As a result, it is prudent for copyright owners to consult an intellectual property attorney to audit their portfolios and reveal new revenue streams from their works.
Since copyright springs automatically when a work is fixed in a tangible medium of expression, authors need not do anything to be able to prevent others from using substantially similar works. However, to be eligible to win monetary damages in copyright infringement suits, the author must register the work with the Library of Congress for a small fee. Doing so as soon as possible has two primary effects:
- First, registering a work clarifies exactly when the author’s protected term is, making it easier to show if a work substantially similar to the author’s copyrighted work is still within the author’s exclusive copyright term. This is more important if you own works that already exist.
- Second, the copyright provides exclusive rights to the particular expression of the work. By registering the work, the owner serves constructive notice on the public of exactly what the copyright covers. Such notice reduces the likelihood of incidental infringements and also makes it easier to prove that the author of a later work had access to the original work – a key point in copyright infringement suits.
The irony is that many copyrighted works originated as other works that had already lapsed into the public domain. For instance, Disney has based their own films off of folk tales, classical literature, and even other movies & shows – and each Disney work earned its own copyright protection beyond what the original work may have had. Likewise, many of Shakespeare’s works have been converted into modern movies and shows, such as the different adaptations of Romeo and Juliet. Eventually, all copyrighted works will go into the public domain and be free for all to use, but careful planning and strategic thought can help authors get the most out of their work.
Image courtesy of photomyheart/freedigitalphotos.net.