Copyright
| Synonyms: | |
| See also: | Legal Analysis, Intellectual Property, Fair Use, DMCA, Cease & Desist, Creative Commons, Piracy, Idea–Expression Dichotomy |
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Copyright is a term that refers to the set of exclusive rights granted to a creator of an original work.
Copyright applies to a wide variety of creative works including literary works, film, musical works, artistic works and many other kinds of Intellectual Property. Copyright holders (the original creator and their heirs) may sell or license certain rights, thereby authorizing others to broadcast or distribute a work. Copyright applies to the expression of an idea, never the idea itself.[1]
Copyright is time-limited, by varying lengths depending on the type of work and the jurisdiction. Once the copyright has expired, a work is considered to be part of the Public Domain.[2] The U.S. copyright laws require twenty years to pass for every one year of copyrighted work to enter public domain, so that in 2019, works created in 1923 will be released. The last such mass expiration of copyright in the U.S., allowing works from 1922, was in 1998. Mary Rasenberger, executive director of the Authors Guild, is quoted as saying, "There comes a point when a creative work belongs to history as much as to its author and her heirs." Brewster Kahle, founder of the Internet Archive, points out that the bizarre law means that "the 20th century is largely missing from the internet."[3]
Copyright also varies from country to country—something that is Public Domain in one country may not be in another.
Copyright is often confused with trademarks and patents—these are different forms of intellectual property rights that cover different kinds of subject matter and work differently.
Subject Matter of Copyright
Copyright protection is available to original works of authorship, including:
- Literary works – this includes not only works traditionally thought of as "literature", such as narrative fiction and poetry, but any work that consists of words, numbers, and symbols, such as computer programs and address books.[note 1]
- Dramatic works – works that tell a story and are intended to be performed for an audience, including musicals, stage plays, movies, and actual-play podcasts[4]
- Audiovisual works – such as video games, movies, and TV shows
- Pictorial, graphic, and sculptural works
- Musical works – such as songs and film or video game soundtracks
- Sound recordings – defined as specific fixations of sounds, independent of the musical, literary, or dramatic works they embody[5]
Importantly, copyright doesn't protect the ideas embodied in a work, only their expression. According to the U.S. Copyright Act of 1976:
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 it is described, explained, illustrated, or embodied in such work.17 U.S.C. § 102(b) [5]
This means that fan works that only use the concepts originated by an existing franchise—such as works that use original characters—are not derivative works because they do not incorporate pre-existing copyrighted material. Similarly, game mechanics and systems are ineligible for copyright, though the text describing them may be copyrightable if it is sufficiently creative.[6] However, they may be protected under patent law.[7]
The threshold of originality determines whether a unit of expression is eligible for copyright protection. Copyright doesn't protect de minimis expression, such as names, short phrases, and basic shapes, as they are below the threshold of originality. Names and slogans may instead be protected by trademark law if they are continually used in a commercial context.
The dividing line between "idea" and "expression" can sometimes be ambiguous. This point is especially brought up in court cases and academic discussions of whether story elements—such as characters, plot, and world logic—should be considered uncopyrightable "ideas" or copyrightable "expression".
Fictional characters
Characters in works of fiction may be eligible for copyright protection separate from the work itself, especially under United States copyright law. The scope of copyright protection depends on the medium in which the character is expressed—for example, when a character appears in a work of the visual arts[note 2] (such as a movie, video game, or drawing), the artwork of the character can be copyrighted if it is above the threshold of originality. On the other hand, when a character is only portrayed in literary form, the boundary between idea and expression can be ambiguous.[8]
Fictional species or races of characters, such as Pokémon species and traditional high fantasy races (orcs, halflings, elves, etc.), are often colloquially described as "characters" in themselves, but they are not "characters" in the sense courts often use when discussing character copyrights. In the case of Pokémon species, their visual designs are typically copyrightable works of authorship, but the underlying species concept is not. Likewise, Bilbo Baggins, a hobbit, is a distinctively delineated, copyrightable character insofar as he has appeared in novels, films, and other media, but "hobbit" as a fantasy race is an uncopyrightable concept. Thus, a work of fan fiction involving original characters that belong to a fictional species (such as orcs, halflings, Squirtle, or Lucario) is not necessarily a derivative work, and a fair use analysis is irrelevant, even if the species concept was developed by someone else. On the other hand, representations of these characters in visual form typically appropriate copyrightable expression from the source, and the derivative work must be evaluated to determine whether it is a fair use or an infringement.
Fans on Copyright
For more information about fanworks and how copyright affects them, see Legal Analysis. The Organization for Transformative Works also have more information. Fanvids are also affected by the DMCA if they need to rip from DVD.
Fans have traditionally suffered from Cease & Desist notices. A more recent development has been Creative Commons licenses which support remixing and fanworks. Some professional authors have different fanfic policies, though these may vary in their legal effect.
Some Random Fannish Reaction
- "Note to contributors: the copyright symbol with your name and date copyrights your work in your name. I don't bother to register copyrights; If you want to, get a Bowker Handbook from the library and go to it." [9]
Further Reading/Meta
See Timeline of Fanwork Copyright and Legality Meta.
- Copyright: Can Fan Writing be Afforded Protection as "Literature?" (1981)
- Copyright Law and Fandom, or, "Am I Gonna Get Sued?" by Susan M. Garrett (1989)
- 10 Big Myths about copyright explained, Archived version ("An attempt to answer common myths about copyright seen on the net and cover issues related to copyright and USENET/Internet publication.") by Brad Templeton (1998?)
- What is Fair Use? (1998 X-Files discussion) (1998)
- Fan Fiction and Copyright by Judith Gran (1999)
- Copyright, by spike (June 24, 1999)
- OHNONONONONONONONONO!!!!, fan discussion at alt.tv.x-files.creative (January 2000)
- Copy Catfight: How intellectual property laws stifle popular culture (March 2000)
- Is Fan Fiction Legal? by Michela Ecks (2000)
- Fan Fiction, Novels, Copyright, and Ethics (November 2001)
- How The Internet Can Save Us, And Why It Won't Last by by Mie Tsukikoushi (2001)
- Fan Fiction is Protected by Copyright Law! (perhaps 2001)
- Friction over Fan Fiction: Is this Burgeoning Art Form Legal? (2008)
- Culture of the Future: Adapting Copyright Law to Accommodate Fan-Made Derivative Works in the Twenty-First Century (December 2011)
- Fans, Copyright, and Marketing by Hell's Half Acre (2011)
- Creativity in Common: Fandom and the Ownership of Ideas (2011 or 2012?)
- FFA: Fic-tipping, archive link (2016)
- 10 Copyright Cases Every Fan Fiction Writer Should Know About, Archived version by David Kluft (2016)
- Okay, some fandom history, why show writers and authors say "for legal reasons" they can't read fan fic. (May 2017)
Notes
- ^ A work consisting of words, numbers, and symbols is considered a "literary work" regardless of whether the text is embodied as printed words on a page, a text file in UTF-8 format, or spoken words in an audio file. In the case of audio-based media such as podcasts and audiobooks, the spoken text and the sound recording have separate copyrights.
- ^ The U.S. Code defines "work of visual art" in a much narrower sense. Here we use the term to refer to any work involving images, whether still or moving.
References
- ^ WIPO General Information on Copyright, accessed May 6, 2010
- ^ Wikipedia:Copyright#Public_domain
- ^ Glenn Fleischmann, "For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain." Smithsonian, January 2019.
- ^ "Chapter 800: Works of the Performing Arts" (PDF). Compendium of U.S. Copyright Office Practices. United States Copyright Office. January 28, 2021. p. 53. Retrieved May 18, 2025.
[A] dramatic work is a composition generally in prose or verse that portrays a story that is intended to be performed for an audience such as plays, musicals, or operas.
- ^ a b "17 U.S. Code § 102 - Subject matter of copyright: In general". Legal Information Institute.
- ^ Walsh, Kit (2023-01-10). "Beware the Gifts of Dragons: How D&D's Open Gaming License May Have Become a Trap for Creators". Electronic Frontier Foundation. Archived from the original on January 12, 2023. Retrieved 2023-01-11.
- ^ Webster, Andrew (2025-05-08). "Palworld had to remove game features because of Nintendo lawsuit". The Verge. Retrieved 2025-06-04.
- ^ Lai Chung, Jacqueline (2007). "Drawing Idea from Expression: Creating a Legal Space for Culturally Appropriated Literary Characters" (PDF). William and Mary Law Review. Retrieved 2025-06-04.
- ^ from the editor in R & R #16, 1981