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Brilliant Betty beat everyone to the punch by turning in her research project before the deadline. Prof. Eagle Eyes glanced at her paper, and saw a lot of creative thinking. After all, he knew that her work was always good, so in the interest of time, he slapped an A on the paper and ran off to his lab.
Meg Molasses was moving more slowly, and managed to turn her research paper in, just in time. Last week, she had inadvertently misplaced the rough draft of her manuscript in the student lounge, and had to recreate it from her notes and drafts, causing her to get behind the eight ball.
When Prof. Eagle Eyes read Meg Molasses's paper he thought, "this sounds familiar, what gives? " On close reading of Meg Molasses's paper, he noticed that some sections of Betty Brilliant 's paper were copied in their entirety. Even the title was the same! The main difference was that Brilliant Betty's ideas were "obviously" original because there were no quotations or citations. Meg Molasses's paper, in contrast, had all kinds of quotations and citations.
Prof. Eagle Eyes called Meg Molasses into his office, and said, "It appears to me, young lady, that you copied Brilliant Betty's work. Not only that, but you used so much of her original work that you cannot call this paper your own. I will have to give you an F and report you to the Academic Dishonesty Board."
Meg Molasses denied the allegation vehemently, and said, "I think Brilliant Betty" copied my work! I am going to sue her for plagiarism and for infringement of my copyright!
Questions
Before reporting Meg Molasses to the Academic Dishonesty Board:
How can Prof. Eagle Eyes determine who is the original author, and who is the plagiarist? What is the difference between plagiarism and copyright infringement?
Assuming Meg Molasses is the original author, what type of rights does she have under the U.S. Copyright Act?
Case Notes to the Copyright Hypothetical
Q: Does copyright protect facts & ideas? (Did Brilliant Betty infringe Meg Molasses's copyright because she lifted the facts and ideas?)
A: No. "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 USC s 102 [b]).
Q: Does copyright protect names, titles & short phrases (catchwords, catchphrases, mottoes, slogans)? (Did BRILLIANT BETTY infringe MEG MOLASSES's copyright because she lifted the title of MEG' s paper?)
A: No. (Circular 34, 2002).
Q: Does copyright protect "form of expression"? (Did BRILLIANT BETTY infringe MEG MOLASSES's copyright because she lifted the form of expression?)
A: Yes. "Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression…Works of authorship include…(1) literary works…." (17 USC s102[a]).
Q: Does copyright protect "literary works"? (Does copyright protect MEG's work?)
A: Yes. "'Literary works' are works…expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless…[of how] they are embodied." (17 USC s101).
Q: When does copyright protection start? (When did MEG's work become copyrighted?)
A: When it was created.
Creation: "A work is ‘created' when it is fixed in a copy…for the first time…" (17 USC s 101).
Fixation: "A work is ‘fixed' in a tangible medium of expression when its embodiment in a copy…by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration…." (17 USC s 101).
Copy/ies: "'Copies' are material objects… in which a work is fixed by any method…from which the work can be perceived, reproduced, or otherwise communicated…The term ‘copies' includes the material object…in which the work is first fixed." (17 USC s 101; see also 17 USC s 202).
Q: Does copyright only protect published works? (Does MEG's work have to be published in order to be copyrighted?)
A: No. Both unpublished and published works are protected by the Copyright Act. (17 USC s 104).
Q: Did MEG "publish" her work when she turned it into PROF. EAGLE EYES?
A: No. Although she gave a copy of her work to her professor, she did not "publish" the work in the legal sense. Legally, "‘Publication' is the distribution of copies…to the public by sale or other transfer of ownership, or by rental, lease or lending." (17 USC s 101).
Q: Once MEG proves that she is the author of an original work, what, in fact, does she "own"?
A: MEG owns the copyright. MEG does not own the ideas or the facts in the work; she merely owns copyright to her original forms of expression. She does not own any of the material she has quoted from other authors' works, she owns only her own creative expression. And, if she publishes and sells copies of the work, she does not own the copies. (17 U.S.C. s 202).
Q: Does MEG—as the author, and therefore, the copyright owner—have the right to exclude BETTY from reproducing her work?
A: Yes. The copyright owner with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right." (17 USC s 101).
Exclusive rights: As the copyright owner, she has exclusive rights—i.e., the right to exclude others from exercising certain rights: "[T]he 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…; to prepare derivative works based on the copyrighted work; to distribute copies…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…works,…to perform the copyrighted work publicly; in the case of literary…works,…to display the copyrighted work publicly…. " (17 USC s 106).
Q: Does another student have the right to reproduce or create derivative works from MEG's literary work?
A: No. MEG, as the author of the literary work, has the exclusive right to reproduce her work or to creative derivative works from her original work of authorship.
Q: Does the professor have the right to publish her work, or to transfer copyright to a commercial publisher?
A: No. MEG, as the author of the literary work has exclusive rights to transfer copyright ownership to a publisher or to otherwise distribute her work to the public. (If, on the other hand, the professor gave MEG the idea for the paper, and helped her write the paper, he would be a co-author, and therefore co-owner of the copyright.)
Q: Is owning a copyright the same as owning a copy of a work?
A: No. "Ownership of a copyright, or any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy…in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object." (17 USC s 202).
Q: How does the author transfer copyright?
A: In writing.
"Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." (17 USC s 204).
Q: What is the duration of copyright?
A: Life of author plus 70 years. Copyright Extension Term Act (CETA, 1998). (17 USC s 302(a)).
Q: How does the author give the public notice of copyright?
A: The symbol ©; the year of first publication of the work, and the name of the owner of copyright, e.g., Copyright © 2003 Meg Molasses. (17 USC s 401).
Q: Is a literary work protected without formal registration?
A: Yes. (17 USC s 408).
Q: In order to sue for infringement, is registration required?
A: Yes. (17 USC s 411).
Q: Does the author own the copyright of a work "made for hire"?
A: No.
"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." (17 USC s 201[b]).
Q: Can other authors use some of the original author's work under the "fair use" doctrine?
A: Yes, as long as the use is "fair."
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (17 USC s 107).
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