Written by Elisa Shoenberger, Loyola University Chicago
When Prospect Management and Research encounter complex situations of wealth at work, my colleagues and I constantly comment, “Wouldn’t it be great if we could sit down with someone who’s an expert and ask them?” It happens in discussions of patents, compensation at big law firms, royalties from books and other media, and more. In this series, I will do just that: I am going to seek out and talk to people or attend lectures on these topics and report back to you my findings as they are related to Prospect Management and Research. For this edition, I attended a February 2014 lecture on copyright law at Harold Washington College by Michael Graham, IP Attorney and Adjunct Professor at DePaul University.
Before we delve into the particulars of copyright law and what it means for Prospect Research, a copyright should be distinguished from other intellectual property protections: patents and trademarks. According to the US Patent and Trademark office, patents are “a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention.”[i] On the other hand, a trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.”[ii]A copyright “protects works of original authorship, such as writings, music, and works of art that have been expressed in a tangible medium.”[iii] In other words, copyright protects the ways in which ideas are expressed, not the ideas themselves.
Protecting authorship through copyright originates in the U.S. Constitution: “The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[iv] Copyright is about the promotion of the progress of arts and sciences. The Constitution explicitly provides that copyright is limited in duration. However, during that period of time, the right is exclusive for its owner, creating a kind of monopoly. Additionally, as Professor Graham notes, there is no mention of profits in the Constitution with respect to a copyright. Which begs the question again, of how copyright rights impact one’s wealth?
So what exactly can be copyrighted and what does it mean to hold a copyright? According to Professor Graham, copyright covers “original works of authorship fixed in any tangible medium of expression.” The following are some types of works subject to copyright protection: non-dramatic literary works, musical works (words and music), pictorial, graphical and sculptural work, computer program, dramatic works, and architectural works. Some items that are excluded from copyright are: ideas, historical facts, names, titles, short phrases and slogans, blank forms, and clothing.
A copyright is actually not a single right, but a bundle of rights. A copyright owner has the right to:
1. Reproduce the work
2. Create derivative works (like allowing a book to become a movie)
3. Perform the work publicly
4. Display the work publicly
5. License or transfer ownership (with a written agreement signed by the owner)
6. “[C]laim paternity and prevent mutilation of visual arts.”[v]
Over the past half century, the duration that copyright is held has been extended, thanks in part to certain corporate interests including Disney. Originally, copyrights lasted 42 years with renewal. However, now for works created after January 1, 1978, “copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.”[vi] If the work was created prior to 1978, it gets much more complicated. As a consequence of these copyright extensions, older, previously public domain material has suddenly become covered by copyright.
For creators of potentially copyrightable material, registration of the copyright may be worth consideration. Prior to the 1976, registration of the copyright was required or the material was considered in the public domain. After 1976, registration was not required. Registration is fairly easy and inexpensive. You can register a copyright online for $45 with the US Copyright office.
Though registration of the copyright is no longer required, there are special rights granted to the copyright owner if they register it before an infringement occurs. If you register before infringement and successfully win a case against infringement, the Copyright Act provides that a court may order the opposing party liable for your legal fees. And legal fees can be considerable: a simple case can cost $500,000 while even cases that only get to the discovery phase can cost upwards of $100,000. These cases can be more expensive than the value of the copyrighted material itself. Moreover, while it is hard to establish how much is lost with infringement, a court can award statutory damages if the copyright owner has registered.
In this age of the internet, fair use has become a front and center copyright issue. Fair use is based on the idea that there are certain things people should be allowed to use even copyrighted works if it promotes the progress of arts and sciences as provided in the US Constitution. Fair use depends on several factors, such as how much of the new work uses the old, what is the purpose of the new work, and whether the new work transform the older one into a new work. However, air use is really only defined by the judge making the ruling.
One notable trend in copyright is the issue that there is now more of an emphasis on copyright proprietors (companies) than copyright creators. You may have heard news coverage of “copyright trolls,” disreputable, practically anonymous companies that go after creators in order to make money through litigation. You can read more about it at EEF. https://www.eff.org/issues/copyright-trolls
However, this issue extends beyond copyright trolls. Major corporations are battling over copyrights between one another and individuals, and even estates litigate over copyright. For instance, the Marvin Gaye estate is battling Robin Thicke over copyright infringement of Marvin Gaye’s “Got to Give it Up.”[vii] The estate alleges that Robin Thicke infringed Gaye’s songs with his summer hit “Blurred Lines” and other works. The case is still pending between the Gaye estate and Robin Thicke.
So what does this mean for Prospect Management and Research? Remember that the copyright is intended to promote the progress of arts and sciences, not necessarily to generate a profit. Copyright protect the expression of many ideas, not the idea itself. There are many rights associated with copyrights including the right to copy and license it to other people. Registration is optional but gives copyright owners special rights if there are infringement lawsuits. Fair use is a tricky field that will continue into the future.
Most importantly, holding a copyright may not necessarily impact your wealth. Most copyrights are often not worth as much as it costs to take infringers to court. As noted before, a simple case could cost $500,000. And that’s if all goes well. Some copyrights maybe worth fighting for, such as Harry Potter books, while others may be more trouble and expense to defend like a Facebook profile photo. On the other hand, due to the high legal fees, IP and patent attorneys may be worth looking at in your constituency for purposes of Major Gift research.
With this emphasis on copyright proprietors, it may also be worth looking at content owning companies, like Disney, who would hold many copyrights or families that may hold valuable copyrights. Those companies may profit extensively from the licensing of their copyright rights and may be worth the time for your organization to investigate their corporate giving or company foundations. Moreover, the people within the company may be Major Gift leads.
And keep an eye out for estates that may hold valuable copyrights. If you have famous singers, authors, and other copyright creators in your database, you may want to look a little harder at their families because “their copyright rights last at least 70 years after the death of the authors and may remain valuable property rights for longer than other assets.”[viii]
That’s all for now!
[i] “Trademark, Patent, or Copyright?” US Patent and Trademark Office, accessed 2/21/14, http://www.uspto.gov/trademarks/basics/definitions.jsp
[ii] “Trademark, Patent, or Copyright?” US Patent and Trademark Office, accessed 2/21/14, http://www.uspto.gov/trademarks/basics/definitions.jsp
[iii] “Trademark, Patent, or Copyright?” US Patent and Trademark Office, accessed 2/21/14, http://www.uspto.gov/trademarks/basics/definitions.jsp
[iv] “Copyright Law of the USA,” Copyright Office, accessed 2/21/14, http://www.copyright.gov/title17/92preface.html
[v] Graham, Michael, “Copyright: From Madison to Disney,” Class Lecture, Business Law from Harold Washington College, Chicago, 2/20/14.
[vi] “How Long Does Copyright Protection Last?” Copyright Office, accessed 2/21/14 http://www.copyright.gov/help/faq/faq-duration.html
[vii] “Marvin Gaye’s family nixes six-figure deal in Robin Thicke copyright fight,” FoxNews, 8/25/13, accessed 2/21/14, http://www.foxnews.com/entertainment/2013/08/25/marvin-gayes-family-kos-six-figure-settlement-from-robin-thicke-in-copyright/
[viii] Graham, Michael, e-mail message to Elisa Shoenberger, February 28, 2014.