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FAQ: Questions and Answers

Question: What kinds of things are copyrightable?

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.

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Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

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Question: What is the purpose of copyright law?

Answer: Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

Topic maintained by USF Law School - IIP Justice Project