By Robert Suggs
Professor of Law
University of Maryland School of Law
Nontraditional casting poses special questions for copyright law. What follows is a short primer on U.S. copyright law, together with a brief description of how it intersects with the issue of nontraditional casting.
Copyright Property: Copyright is a form of intellectual property created by federal law which gives to authors (creators) an exclusive right to exploit their creations (expressive works) in specified ways. Authors gain copyright protection for their works when they fix them in a physical object from which they can be viewed or communicated. The rights protected by copyright do not include rights in any physical property; ownership of copyright is distinct from ownership of any material object. The property comes into being upon fixation. No filing with any governmental agency is required, although authors gain certain advantages if they register their works with the Copyright Office, which is part of the Library of Congress. To be eligible for copyright protection, works must be original creations by the author, (not copied from someone else), and minimally creative. Only the forms of expression contained in the work are protected. Ideas, facts, principles, and discoveries cannot be protected by copyright.
Categories: Works protected by copyright fall into the following categories:
Exclusive Rights: Copyright protection creates six exclusive rights. Different categories of works have different exclusive rights reserved for their copyright owners. No category receives all six exclusive rights and the rights reserved vary depending upon the category of work. All categories of works have exclusive rights 1) to make copies; 2) to distribute those copies to the public; and 3) to make additional works derived from the initial work. Categories one through four and six receive the exclusive right to publicly perform the work. Categories one through five receive an exclusive right to publicly display the work. Sound recordings receive an exclusive right to publicly perform the work by means of a digital audio transmission.
Copyright Ownership: Copyright is initially owned by the author, who can be either a natural individual or a business firm that takes on the status of an author because it provided the economic support to enable its employees to create the work (works for hire). In addition, the statute specifies nine types of works, whose creation typically requires the collaborative efforts of many people, which can also become works for hire, even if the real authors are not employees but merely independent contractors. An author may separately assign (in writing) each exclusive right granted to the various categories, and each right can be further subdivided by time, geography, medium of expression, or by other means.
Duration of Copyright Protection: Unlike other forms of property, copyright is not perpetual. It expires after a specified term and then the works become irreversibly part of the public domain and can be freely used by anyone for any purpose, either as originally created or as raw material for new copyrighted works, although for such new works copyright protection would extend only to new material. In recent decades both the scope and duration of copyright protection has been repeatedly expanded and extended. The current term of copyright protection is the life of the author plus 70 years, and for works for hire it is 95 years from first publication or 120 years from creation, whichever expires first. After 35 years authors (except work for hire authors) have the inalienable option of terminating any assignment they have made of an exclusive right and all rights revert to them.
Violations and Remedies: A legal or beneficial owner of an exclusive right may sue to enjoin or seek damages for a violation of one of the exclusive rights. To show a violation (infringement) the copyright owner must show a valid copyright, access by the infringer to the copyrighted work, and a substantial similarity between the owner's and infringer's works. For each infringement an owner can choose to recover either her actual damages plus any profits of the infringer, or statutory damages set in the court's discretion between $750 and $30,000 for all infringements of each work infringed. For willful infringement the court has discretion to increase statutory damages up to $150,000 for each work. In addition an owner can obtain an injunction against further infringement and the seizure and destruction of all infringing copies. A court also has discretion to award costs and attorneys fees to the prevailing party, including a successful defendant.
The Fair Use Exemption: Uses that would otherwise violate an exclusive right may be affirmatively justified as a fair use. Fair uses are determined on a case by case basis. To fall within this exemption the use must be for a transformative purpose and not provide a market substitute for the protected work.
The issue nontraditional casting poses for the law of copyright involves the author's exclusive right to make derivative works. A derivative work is based upon a preexisting work and recasts, transforms, or adapts it in the creation of a new work. Examples include translations, making a motion picture from a novel, or creating a sequel. For certain works, casting that changes the race, gender, sexual preference, ethnicity, or degree of disability of key characters might transform the work into something quite distinct from the work envisioned by the original author. In such a case the copyright owner might challenge such casting as an unauthorized derivative work.