Copyright Basics: Exclusive Rights
In our last article, we dove into the basics of Copyright Law. As a content creator, one of the most important aspects of Copyright Law that you need to keep in mind is the "exclusive rights". After you create your work, what do you get?
The Exclusive Rights
In our last article, we briefly listed the six exclusive rights outlined under the copyright code. Specifically, the copyright code (17 U.S.C. §106) states:
"…the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
to reproduce the copyrighted work in copies or phonorecords;
to prepare derivative works based upon the copyrighted work;
to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."
One thing content creators should note is that these exclusive rights are considered exclusionary rights. This means that even as the copyright holder, the copyright does not grant you the right to perform or display your work. Rather, it gives the copyright holder the right to exclude others from doing so. It may not come up very often, but a person who holds the copyright to a work may nonetheless be prohibited from performing the copyrighted work if the underlying work is found to be unlawful (i.e. defamatory or obscene).
While the text of §106, is fairly wordy, we can break down the exclusive rights into a few simple categories: Reproduction Rights, Public Performance/ Display Rights, and Right to Create Derivative Works.
Reproduction Rights
Reproduction rights are generally straight forward. A copyright holder may prevent others from reproducing or making copies of the copyrighted work. This can include printing an image to a shirt, burning CDs, making copies of computer programs, or making photocopies of a poster. Reproduction Rights do not necessarily only apply to the copyrighted work as a whole, but even a portion of the copyrighted work. A copy may be considered an illegal reproduction where the copying is substantial and material.
Public Performance/Display Rights
Performing or displaying a work in public means performing or displaying the work in any place that is open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. This can mean a DJ playing music at a bar or playing a movie at a school auditorium. Content creators in the digital age should rest assured that copyright law has tried to adapt to the times. The law has been amended to add that if you transmit or communicate a work through means of a device to the public or public place it is also considered a public performance. This means that posting a copyrighted image online without permission would infringe the copyright owner's exclusive right to display the work publicly. Content creators should note however that the way works are interpreted when posted or broadcast over the internet has not been definitively ruled on in the courts and may depend on the particular circumstances of each case.
Right to Create Derivative Work
The right to create derivative works is probably the most confusing and robust of the exclusive rights. A work derivative to a copyrighted work is a work that is based upon the copyrighted work. As you can tell, "based on" is pretty ambiguous and can mean a lot of things. "Based on" can mean, without limitation, a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. Using the same characters as in a copyrighted work can also be considered a derivative work.
Bundle of Sticks
In many copyright courses or seminars, a copyright holder's exclusive rights are generally referred to as a bundle of sticks. A copyright holder may assign or license the entirety of the rights as a bundle, or may give out each stick individually. However, the metaphor falls apart because, in actuality, each exclusive right may even be broken down further. A copyright holder may license out rights to publicly perform their work in certain states. The copyright holder may sell the movie rights to their book. How the exclusive rights are broken down and licensed and assigned is arguably the most important aspect of copyright law for content creators to understand. Content creators should pay particular attention to what rights they are licensing or selling in their agreements to ensure that they are not giving up more than they think, and are being properly compensated for their work.
Sticking Points
There are very numerous ways to divide, structure and implement a copyright holder’s exclusive rights
Rights holders need to be very careful when licensing or transferring the rights to their works so they know what they are giving away, what they are keeping for themselves, and what the value of your license is.