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Home arrow Law arrow Copyright Questions and Answers for Information Professionals

What does it take to create a copyrighted work? Does it have to be registered for protection?

Under the current law, the Copyright Act of 1976, to create a copyrighted work, all one has to do is to create an original work (one that is not copied from someone else) that has at least a modicum of creativity and then fix it in a tangible medium of expression now known or later developed.

Registration is not required for copyright protection but instead is voluntary. If a copyright owner wants to sue infringers, however, the work must be registered prior to filing suit in federal court. Because copyright is a federal matter, infringement suits must be brought in federal court. Registration also provides some other important benefits to owners. For example, if the work is registered before the infringement occurs, the owner may recover statutory damages, as opposed to having to prove actual damages and profits. Further, if the litigation is successful, the owner may recover attorneys' fees.

What is the public policy reason for awarding copyright to the authors of letters?

For example, if a famous author sends a letter to a breathless admirer or even a lover, why does the recipient of the letter not own the copyright? Could the letter not be considered a gift to the recipient?

The U.S. Constitution, in article II, section 8, clause 8, states that Congress may enact legislation to provide exclusive rights to authors for their writings. A letter is clearly a writing, and the writer of the letter is the author. In most types of works, when the author creates the work, it is then reproduced as multiple copies, such as with books, articles, music recordings, and so forth. But this is not always the case. Major exceptions are works of art and private letters, of which only a single copy may exist. It is a constitutional matter to recognize the letter writer as the author, who is also the initial owner of the copyright.

There is a difference between the copy and the copyright that confuses most people, including librarians of institutions that hold manuscript collections. The author of the letter owns the copyright in the literary work, that is, the letter; the recipient of the letter owns the only copy of the letter, or the recipient may have donated the original copy of the letter to a library or museum. The institution seldom actually holds the copyright, but it may still restrict access to the copy that it holds. In exchange for the right access, the institution may establish a variety of requirements that a user must satisfy before being permitted to access the letter. The donor of the letter (who may be either the author or the recipient) also may place restrictions on the availability or use of that letter, to which the institution must agree at the time of transfer. For the library to own the copyright, the author would have to transfer the copyright to the library in writing.

Issues such as invasion of privacy also must be considered with letters since a letter was intended as private correspondence between two parties. One could argue that either party should have the right to make the letters public. Under copyright, however, the law protects the right of first publication so that the author or heirs have the first right to publish the text of letters for the duration of the copyright. No copyright rights belong to the letter's recipient.

A narrative by a woman slave from the 1840s was discovered and published in 2000. Since it has now been published, it is in the category of works that existed as an unpublished work on January 1,1978, but which was published before the end of 2002. Therefore, it will not enter the public domain until the end of 2047. Who owns the copyright in this newly published work?

The heirs of the author would hold the copyright in the work even though it was published 60 years after it was written. If the author has no heirs or they cannot be identified, then the editor may hold the copyright based on what the editor contributed to the work. The new material that the editor produced must be original and have at least minimum creativity in order to be eligible for copyright protection.

A faculty member in the university has produced a song cycle based on the poetry of Gustavo Adolfo Becquer, a nineteenth century Spanish poet. The library has not been able to find any answers concerning his copyrights. It has contacted publishers, but has received no response. Becquer died in 1870; could his work still be under copyright?

His poetry is in the public domain. Even in Spain where the copyright term was life of the author plus 50 years, the copyrights would have expired in 1920. Thus, the faculty member is free to prepare a derivative work based on Becquer's poems. If the faculty member contributes enough original work, which it sounds as if he or she may have, then the derivative work is eligible for copyright protection even though the underlying work is in the public domain. No one can copy the faculty member's song cycle, but others are free to write their own song cycles based on Becquer's poetry.

 
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