Suppose I write something incriminating on a pad and take the sheet I wrote on with me. The police investigate and use a rubbing to determine what was written on the pad prior to my taking the sheet of parer I wrote on. Can they use it in court against me, since I wrote it and, therefore, own the copyright to it?
Though I am a lawyer, I don’t practice copyright law. Luckily, your question doesn’t require a specialist.
There are two essential points here:
1.) You don’t automatically own a copyright on something merely because you wrote it. A scribble on a pad would be in the public domain unless you took action to establish a copyright.
2.) The fact that something is under copyright in no way acts as a bar to its being used as evidence.
Two things. First, the police, or the district attorney’s office, are not copying and distributing your work, any more if you stood on a street corner and recited your favorite Sylvia Plath poetry. Second, the concept of fair use extends to criminal investigations. Especially to criminal investigations.
Title 17, U.S. Code, Sec. 107:
No, not true.
The author of a work (assuming he is not working for hire) owns the copyright of that work from the moment of creation. Title 17, U.S. Code, Sec. 102:
As is, the note is an unpublished work, and both published and unpublished works have copyrights. Registration of a copyright with the U.S. Copyright Office does not create the copyright (although registration is necessary if you plan on pursuing legal action for copyright infringement).
Slipster is partially correct in that you can’t exclude the rubbing by virtue of the fact that you own the copyright to the work appearing on it. You’d need instead to try and show, for example, that it was illegally obtained evidence and therefore not admissible (caveat -rules of evidence not being my specialty).
Walloon is also correct in stating that you own the copyrights from the date of creation.
Anyway, that being said, there is going to be a fundamental question of whether what you wrote can be the subject of a copyright. “I did it guys!” wouldn’t have sufficient merit to warrant copyright protection. Basically copyright protects:
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
O.K., so assuming that you penciled a magnificent sketch (perhaps of you in the act of committing the crime Hannibal Lecter style), so there’s no question that your sketch is a thing of art and deserving of copyright protection, there’s still going to be a very interesting question (which I believe was the heart of your post) as to whether the rubbing can be the subject of copyright, and, if so, whether you own the copyright or the police do, since they created the rubbing.
Let me think about that little and I’ll get back. I just have to finish up at work first.
It may not require a specialist, but it requires someone who actually knows copyright law. You are (with a couple exceptions) very mistaken in your assertion.
An exception to this, of course, is if your work infringes on anothers copyright, trademark, or established intellectual property.
It would be an interesting defense, but I doubt it would work.
Remember, copyright violation is a civil tort. You would have to sue the police for the violation. If the judge rules for you, you are only entitled to tell them to not make any more copies and sue for actual damages (you haven’t registered the copyright, so you can’t sue for court costs). It’d be hard to prove any damages (I doubt the judge would accept the money you would have made in committing the crime). So ultimately, suing for a copyright violation would cost you the expense of taking the cops to court. And there’s a good chance that the judge would side with the police and declare this a fair use.
And even if you won a judgment, you couldn’t prevent the cops from using it as evidence. The judge in the copyright case would enjoin them from making any more copies, but they can do what they want with any copies they’ve made previous to the ruling.
cankerist, your list of copyrightable works omitted the most common type of copyright work: literary works, a term that includes everything from e-mail to love letters, books, magazines, and newspapers.
Ok, so bad idea to leave the pad I wrote my Diabolical Plan for World Domination[sup]TM[/sup] laying around?
walloon - sorry bout that. I’m at work and slightly preoccupied. But in any event, what I’ve said is still true - whether the ‘writings’ are considered ‘works’ will depend on its creativity.
Copyright allows the author the following exclusive rights:
ul to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) 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;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) 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
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission[/ul]
If we assume that what you wrote is copyrightable, the police don’t get in trouble unless they do one of the above items from the list without the author’s permission. When you wrote on the pad, you made a copy with the impression. the question then become whether the police somehow made it into a derivative work to make it easier to read. I doubt that a judge would find it so transformative as to be derivative - it’s the same note, but in an easier to perceive format.
Without any infringement on the part of the police, you would have no control over an noninfringing uses of the note by the police.
No, the judge in the copyright case could order the copy used in the criminal case to be impounded, and the judge has the authority to order its destruction.
Walloon, if you haven’t made a copy, then fair use doesn’t matter.
But the rubbing is making a copy, which was the point in my OP.
Robb, yes, that’s why I wrote, “First, the police, or the district attorney’s office, are not copying and distributing your work. . .”
Q.E.D., how is it a copy made by the police? Was the impression not there when you were done? Was it such a light impression that it was imperceptible to the human eye? If it was, then how did the police know to look at it? If it was perceptible, then please explain how copyright law regards what the police did as making a copy, and then contrast whether it was a derivative work.
Walloon, it isn’t a “yea, but…” I read the second. In this instance, fair use is superfluous.
Let’s say it was a light impression, and they did the rubbing on a hunch. I don’t know the answers to all your questions, which is why I asked in the first place.
IANAL, but I am a professional writer and I have paid long and hard attention to copyright law. I don’t understand cankerist’s contention. Even every single post you make on a message board is immediately assumed to be copyrighted by you. “Creativity” and “works” have nothing to do with it.
But everybody else is right that this is simply not an issue of copyright protection.
The U.S. Supreme Court disagreed, in FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991). An excerpt from the majority decision:
While I don’t want this to devolve into a fight, I will stick by my original answer.
While it is true that it is not necessary to register a copyright to have one, raising that as an objection to my answer seems pretty pointless as I never said it was necessary.
Copyright covers a variety of kinds of works, including “literary works”. I would be pretty amazed if a court ruled that a note scribbled on a pad was a literary work without some further action having been taken, such as treating it as a publishable poem and attempting to publish or at least copyright it. If the courts merely took the word of people that a work was copyrightable after the fact, I could claim that my lawn is conceptual art after I mow it and hassle people if it turns up in a photograph they take.
This raises an interesting point about the law, and about legal discussions such as the ones which often crop up on this board.
It takes more than quoting Black Letter law or looking for isolated words and phrases to resolve a legal question; as Oliver Wendall Holmes Jr. observed, the law is whatever the courts in fact will do.
This is a point which is overlooked with surprising regularity. It has, for instance, been the downfall of countless tax protesters who cobble a theory that they don’t really have to pay taxes because of some ambiguous or contradictory phrase they found buried in the Federal Code.
As for the question of the status of a rubbing, it would likely be regarded as either a copy or a derivative work–either way, the copyright status of the original notation matters.
IANAAL (I am not an American Lawyer) but I do practice law over here; most copyright matters are regulated by international treaties these days. I would like to add a few points to clarify things (and hoping it will not have the opposite effect).
slipster may have been thinking of the pre-BC era (Bern Convention, not Before Christ), when the U.S.A. required registration of a work and the famous copyright sign for a work to be protected. Those days are luckily long gone.
While it is true that the creativity requirement is very light, it still does have meaning. A grocery list might not count as a work, and a dictionary in itself probably wouldn’t either (What’s the ruling in Feist again?). A small jotting could fall below the treshold. However, if it is interesting enough to possibly get you convicted, I’m willing to bet it will also be protected by copyright.
With regard to prosecution Dutch law also contains an exception. I gather most countries would have such an exception. Even if a country would not, and you would refuse consent to copy the work, that in itself need not make the prosecution illegal. Prosecution is penal law, copyright is civil law.
And yes, a rubbing is simply a copy.
Nowhere in the U.S. copyright statutes or in applicable U.S. case law does intent to publish become relevant to the existance of copyright. To the contrary, most people write private letters with absolutely no intention that they be published. Yet if you publish those letters without the author’s permission, you are most definitely in violation of the author’s copyright.