Friday, January 14, 2011

Copyright in the Spoken Word

In this post I will address a question that you might have if you are in a group that works to improve public speaking (this came up because I joined Toastmasters and I did this as a speech topic).

In such a group you will have to prepare and present several speeches. So:

Do you have a copyright in your speeches?

First I will try to keep from using copyright as a verb. We tend to say did you copyright your speech, but what we should say is: do you have a copyright in your work. Copyright is a noun. It means, quite plainly, the right to make a copy.* If you have a copyright you can make copies and nobody can stop you; but, you can also license that right and let someone else make copies, or even transfer that right so that they can grant a license to yet a third party make copies. It also means you can prevent someone else from making copies of your work.

But how do you know whether or not you even have a copyright to begin with?

If you really need to know you should consult an attorney, because the question can be more complicated than you think. I am not here to give legal advice, but I will give you the basic tools to let you tell if you probably do or probably don’t have a copyright in your speech.

The Constitution gave Congress the power to grant copyrights, and the United States Code explains what types of things are entitled to a copyright.

There are three basic requirements: a work must be original, it must be creative, and it must be fixed in tangible form.

If you have those three things, you immediately have a copyright.

Now I will assume you make up your speeches on your own. Reciting someone else’s speech is not original.

And I will assume your speech is at least a little bit creative. A list of all of the people who came to your holiday party may be original but it is not creative. A phone book does not get a copyright.

So the third factor is probably the most critical, and potentially the most complicated.

Is your speech fixed in a tangible form?

That means, is it in a physical form that will last some amount of time.**

Did you write it down? If you did then you do have a copyright on your speech; at least, you have a copyright on your words.

But as your public speaking program no doubt teaches, your speech is much more than the words. Your speech includes your inflections and the tone of your voice. Those don’t have a place on the written page.

Can you get a copyright in those? Yes, you can.

What if you used a tape recorder, or a digital audio recorder?

The law grants copyright for sound recordings so if your speech is recorded in audio format then that too can be protected by copyright.

But is that really your speech? What about your gestures, your facial expressions? your body language and the way you move around the podium?

Yes, those too can be protected by copyright - if they are recorded, such as if you use the webcam on your laptop. The law grants copyright in audio-visual works or performances.

The key is always whether or not it is fixed in a tangible medium.

Suppose you wrote your speech down, and you recorded the audio and you recorded the video. You won’t have a copyright. In fact you will have three separate copyrights: a copyright in the written work, another in the sound recording, and another in the audio-visual work.

You can let someone photocopy your written words, or transcribe them, or photograph them, or even translate them into another language. You can let someone make duplicates of the audio, put them on an ipod, or even recite your speech imitating your voice. And you can let someone duplicate the audio-visual record, make mashup videos, post them on youtube, or broadcast it on television, or any of a countless array of inventive derivations and methods of copying.

Or, perhaps more salient to you, you can stop other people from doing any of those things.

Now there are exceptions to what you can prevent others from doing; and how to enforce your right is a whole different question.

If you just want to answer the basic question: Do I have a copyright in my speech, you only have to know three things: Is it original? Is it creative? and is it fixed in a tangible form?

* What is a copy? That’s a complicated question I will address in another post or series of posts.

** There has been much litigation about what fixed means so this discussion will be limited to the type of fixing you are likely to have as a public speaker.

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