Decoding Copyright Law: Protecting Your Creative Works

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You are listening to the National University Podcast.

Kimberly King (00:08.568)

Hello, I’m Kimberly King. Welcome to the National University podcast where we offer an holistic approach to student support, wellbeing, and success: the Whole Human education. We put passion into practice by offering accessible, achievable higher education to lifelong learners. On today’s episode, we take a closer look at copyright law, what it is, why it matters, and how it protects creative work in an increasingly creative digital landscape. From content creators and educators and businesses and everyday users, understanding copyright is essential in today’s media-driven society. And according to a recent article in the Center for News, Technology and Innovation, copyright laws must be modernized for the digital age. The methods of creating, citing, and utilizing creative works have changed dramatically since current laws were written. Stay with us. We have a great show today.

On today’s episode, we’re diving into copyright law. Joining us is Dr. Robert Diotalevi, who has served as an associate professor and founding program coordinator of legal studies at Florida Gulf Coast University for the past 24 years. He’s also been a lawyer for 40 years and a member of the Massachusetts and Florida bars. And he holds four degrees and has been internationally published. In 2009, he co-authored the book, The Florida Paralegal with attorney William Statsky published by Cengage Learning. Over the past five years, Dr. D has developed 10 courses for JFK School of Law and taught at National University earning the two 2024 Excellence in Scholarship Adjunct Award.

A former professional broadcaster for eight years with managerial roles in radio, news, and production. His work appears in outlets like the SMU School of Law’s Computer Law Review and Technology Journal, the Paralegal Educator and the Journal of Paralegal Education and Practice, and the online Journal of Distance Learning Administration. He also edits several peer-reviewed journals and presents at national and regional law conferences and organizations.

Kimberly King (02:25.654)

and we welcome him to the podcast, Dr. D, how are you?

Doctor Robert Diotelevi (02:29.484)

Very good, Kim. Thank you. Appreciate being here. And I hope the hardest thing about this podcast is my name.

Kimberly King (02:36.13)

Your name. my gosh. You’re making me laugh offline. We were talking about that and that’s terrible. But you always know when they’re trying to pronounce your name, don’t you? When they say Robert—.

Doctor Robert Diotelevi (02:46.734)

I answered anything, that’s right. Unless it’s the IRS and then I have no clue what they’re talking about.

Kimberly King (02:52.234)

You have such an impressive background and I want you to fill our audience a little bit on your mission and your work before we get to today’s topic.

Doctor Robert Diotelevi (03:02.338)

Well, I appreciate it again, Kim. I’ve been an academician now 40 years, member of the Florida Bar and Massachusetts Bar, as you mentioned, for equal time there. I got into copyright law, writing articles and doing presentations. I wanted to do something different. And this was back, I’d say about 25, 30 years ago. And it is different and it’s a hot topic even today. So I do a lot of presentation in that area, as well as intellectual property.

My kind of honey is the First Amendment regarding con law, constitutional law. I love delving into that too. So that’s basically how I kind of came full circle into this. But as mentioned, I’ve been an academician now for four decades. I love teaching. teach for several schools. And as you mentioned, for the past 25 years, I’ve been at Florida Gulf Coast University. That’s on the left coast near the Gulf of America in Fort Myers, Florida. And it’s been a blast. You know, I’ve practiced before, also, but my passion really is teaching.

Kimberly King (04:02.956)

Well, you can tell. I can see how passionate you are. And obviously, your career speaks for itself. So congratulations. I’m excited to talk about this with you today. We’re talking about copyright law. And it’s not something that people really know about. Obviously, that’s why we hire you. But why is copyright law so vital today, especially?

Doctor Robert Diotelevi (04:23.426)

Well, if you’re writing, you really have to know what’s out there and what is protected. A lot of people think, Kim, that just because they don’t put the little C in the circle anymore, that’s gone. We’re going to talk about that later with the Berne Convention that the United States got into in 1989. But not to get ahead of ourselves, folks think things that you know, it’s unimaginable. “It’s on the internet so I can take it.” That is not true.

“They don’t have a copyright, necessarily, that I see.” That is not true. We’re going to learn today basically how you get those copyright rights. And so it is vital for we educators, for students, for anybody that writes out there, whether it’s via online or if you’re writing a book, a play, manuscript or whatever, let’s say a musical piece, to know your basic copyright rights and know how not to violate somebody else’s copyright rights.

Kimberly King (05:19.966)

You know, there’s so many questions out there because of AI now, and I’m sure we’ll talk a little bit about that. But what’s the difference between copyright infringement and plagiarism?

Doctor Robert Diotelevi (05:30.626)

Well, plagiarism is more of an ethical violation, where copyright is a legal violation. Now, you should never plagiarize, obviously. That’s an English faux pas. But if you violate copyright, the copyright holder, that’s the person who has the copyright rights, they’re going to not be exactly happy with you. Copyright law, a lot of people don’t realize, is federal in nature. We’re going to talk about where it came from in just a few moments. It is civil in nature.

About 99% is federal based, not state. 99% is civil in nature, not criminal. And it is intellectual property as opposed to your patent rights regarding if you have an invention, trade secrets, like what is that secret ingredient in a two all-beef patty, special sauce, lettuce, cheese, pickles, onions, on a sesame seed bun. I think it’s Roquefort dressing myself. You know, so those things are different. Some things are protected by copyright, some aren’t, you know. So that’s kind of what we’re going to do also today very briefly and I know we can’t do everything but we’ll try to you do some snapshots but a lot of folks don’t realize where we get our copyright rights from. Most people think we got those rights just recently but I’m going to show you we’ve had those rights for a long long time.

Kimberly King (06:47.906)

So interesting. Is copyright law, so you just said we’ve had him for a long time, but is it new in American law?

Doctor Robert Diotelevi (06:56.308)

It is not, and let me read to you where it comes from. It says here that it gives Congress, quote, the power to enact laws to promote the progress of science, that’s patents, and useful arts by securing for limited times to authors, that’s us, and inventors, again, the invention folks, the exclusive right to their respective writings and discoveries. I just read for you, from Article 1, Section 8, Clause 8, of the United States Constitution. So we have had these rights for decades, hey, for hundreds of years, we’re approaching 250 years in our country, that’s how long we’ve had them. The first Congress implemented the copyright provision of the US Constitution in something called an Act for Encouragement of Learning by securing the copies of maps, charts, and books to authors and proprietors of such copies.

That was back in 1790 and it was modeled on the Statute of Anne, which is an English copyright protection and that dates back to 1710. The copyright rights that we have right now really, some of the substance come from a 1976 copyright act in which Congress really codified through federal legislation a lot of what you see today as interpreted by of course the United States Supreme Court.

So again, to answer your question, to do kind of a weave all the way around, these things aren’t new. We’ve had them for an awful long time.

Kimberly King (08:28.014)

And so what I just heard you say, was in 1976 where they codified, where they just, kind of updated things, I guess.

Doctor Robert Diotelevi (08:35.975)

Well, yeah, they kind of put everything in terms of like modern day because, again, we really didn’t have that statute, that codification of all of our rights. Basically, we’re kind of flying by the seat of our pants until a Congress really got together and say, hey, this stuff is important. We should really put all this stuff where people can find it. And again, the Supreme Court for decades, they have had cases in front of them involving this stuff. Now, you mentioned also AI. Boy, am I going to be busy the next few.

I’m going to be doing a lot of presenting work on that, maybe some articles and the like, because yeah, as AI hits, people are going to say, what is out there? What can I have? can I do? What can’t I do regarding copyright law? So that’s going to be a whole new adventure for us to tackle in the years to come.

Kimberly King (09:24.194)

You know, and I would imagine Congress may have to codify laws again since it was 1976, but we’re moving quickly now, aren’t we? So interesting. Wow. Thank you for that history lesson. So copyright is part of intellectual property. So what is that?

Doctor Robert Diotelevi (09:40.462)

So intellectual property rights, Kim, we’re talking about rights that are intangible, not touchable. You think of like the First Amendment, your freedoms regarding, let’s say, your speech or religion, to petition your government, the freedom of the press to peaceably assemble. You’ve got those five rights. The Constitution could burn down tomorrow. We could lose it, it could be gone, but you would not lose those fundamental rights. Just that you can’t touch them.

But the evidence of them, the statutes you mentioned and the cases and all. That’s not the right. Those are just indicia of evidence, just like the Constitution with the First Amendment. And as we mentioned, it is federal civil law in nature. A lot of folks don’t realize that. So if you’re going to sue, you’re going to be going to a federal court. Intangible, again, these rights are personal property rights. They’re not realty, obviously, but they are rights fundamental to us.

And again, as you said, as AI keeps hitting the beaches here, we’re to be seeing a lot more cases coming down, I assume, from the Supreme Court on what those rights are as we enter artificial intelligence land.

Kimberly King (10:47.118)

Wow. What does copyright not include then?

Doctor Robert Diotelevi (10:51.818)

Okay, well copyright does not include titles, names, slogans, symbols, coloring, improvisational speeches, unrecorded performances, ideas, concepts, devices, inventions. We say, well, Dr. D, those things have to be protected, some of them at least. Right, but we talk about devices, inventions, things like that. That’s where you look to patent law. There could be other legal protections.

There could be trademark, trade name, as mentioned, patent. So it doesn’t mean that you don’t have those protections, but we look elsewhere for those protections. And then that’s basically really what we’re talking about in that some of those things, for example, let’s take ideas. If I’m sitting in, let’s say a restaurant and I’m sitting next to Steven Spielberg and he’s talking to somebody and he says, I have a great idea for a movie. Let me tell you about it. Well, I’m listening and I’m within earshot. I run out and I go make that movie, he has no recourse at all. Because just talking like that, ideas, they’re not copyright protected. We’re gonna see how you get those protections as we move on here.

Kimberly King (12:03.032)

That’s so interesting. But I always think about maybe the difference then between copyright and patent because if you do have an idea, you can patent it. Is that correct or?

Doctor Robert Diotelevi (12:14.058)

Yes, and especially the invention, right? You can put that, you know, some substance on paper, go to the patent right office, right? Pay your fee, fill out your forms and all. And if the invention is feasible, if it’s viable, then you’ll get a patent on that invention, right?

Kimberly King (12:29.504)

Really quick story, my husband, you were talking about sitting at a restaurant, you know, when you get older and you’re in a dark restaurant, you can’t see the menu before these came out, right? The menu light. So he was trying to patent the menu light. And then all of sudden Apple and all the phones came out with their own. And we said, well, I guess that’s actually by the wayside there.

Doctor Robert Diotelevi (12:48.97)

Oh, absolutely. I heard of an 11 year old that patented a new toilet bowl cleaner. And it was that kind of a curved handle. She came up with it and a designer put it together for her. She ran to the patent office, made a million dollars.

Kimberly King (13:02.894)

Oh my goodness, really? 11 years old. Wow. love that. Yeah, I know. Exactly. So what are the basic requirements for copyright law?

Doctor Robert Diotelevi (13:08.118)

I’m in the wrong business.

Doctor Robert Diotelevi (13:17.134)

Copyright protects things, Kim, that are original works of ownership that are fixed in a tangible means of expression. So we have to talk about all those three. What’s original? What is fixed? And what do you mean by tangible? Well, originality is easy. You came up with it. You came up with the book. You came up with the, let’s say, manuscript, the piece of music, or the like. Or maybe it’s jointly authored. Okay, great.

So that’s easy. It can’t be somebody else’s work. Tangible, that’s a key form here that we’re gonna take a look at in a minute for what copyright is. It has to be expressed. So all authors, including online, must be aware that copyright law affords protection to expressions rather than ideas, like we mentioned before. Is it perceivable in a tangible medium by somebody else? Like what we’re doing right now. This is perceivable. If you have a book, and you have it published, it’s perceivable. We can see it, it’s out there, it exists. And finally, it has to be fixed. Something that’s fixed is sufficiently permanent or stable to permit others to be perceived, reproduced or otherwise communicated for a period more than a transitory period like we’re doing right now. This broadcast, a work consisting of sounds, images or both that are being transmitted is in fact fixed. And of course, a book.

You have the book, I mean it’s hard copy, you can see it right there. That’s really the easiest one. Well, we did fix it in a permanent medium. So those are the kind of things that we’re looking for to have those copyright protections apply.

Kimberly King (14:56.544)

Interesting. So what are my copyright rights?

Doctor Robert Diotelevi (15:01.602)

Well, you have several once you come up with your book, Kim, or this publication that we’re doing as it were online, you have the right to make copies of the work, obviously. You have a right to distribute the work. You have a right to perform the work publicly, especially if it’s music or play or whatever. You can display it publicly. For example, something on the internet, if you put it on television, radio, and you can make what is called derivative works.

Those are modifications, adaptations, you want to translate it into Japanese, you want to make, you know, like Harry Potter 57, know, Harry’s in the nursing home, or, you know, James Bond movie where, you know, it’s James Bond 67, whatever you want to do with those, those are yours and those are your rights.

Kimberly King (15:45.994)

Interesting. Okay. So how long does my copyright last then?

Doctor Robert Diotelevi (15:51.118)

Well, copyright usually lasts your life plus 70 years. And if it’s a joint venture, if you’ve written it maybe or you’ve produced it with somebody else, it is the survivor lifetime we’re looking at. So it’ll be the survivor’s lifetime plus 70 years.

Kimberly King (16:07.694)

Okay, wow, this is so interesting and I appreciate it because you’re really making it easy for all of us to understand, so thank you. Is my copyrighted material, is it protected worldwide?

Doctor Robert Diotelevi (16:21.822)

It is not. What we were talking about a moment ago, Kim, we got into March 1989, something called the Berne Convention. This was with corresponding friendly to us, not Iran, Iraq, okay, but countries that want to do business with us. And again, we have friendly relations and we basically signed multinational treaties. We’re respecting their copyright laws and they’re respecting ours. So unless you’re part of the Berne Convention, no.

You know, if you maybe go to Iran, Iraq or one of these countries again, that’s not friendly with us, not friendly with our rights, they can down and out steal it. And unfortunately, they can steal it- Let’s say if on the internet, they’ll take it, they’ll make what we call bootleg copies and try to go there and sue. Good luck. Try to sue here and you’re going to get a judgment, that’s great. Whether or not you get it enforced, they don’t have any property here. You can’t attach any of the property. How are you going to get anything out of it? And that’s the problem.

The other thing I was talking about too, the Berne Convention got rid of the little circle in the C, circular little copyright protection. You don’t have to do that anymore. So you don’t have to put the C in the circle copyrighted. If you wrote it, it’s yours. You can prove the originality, the tangible medium, fixation and all. You’ve got the rights automatically. You don’t have to do anything special.

The only thing I want to mention though, Kim, is if you want to sue in federal court, you have to register your copyright with the United States Copyright Office. I’d do it. If it’s this important, you know, really something like, wow, it’s a book and you don’t want anyone stealing it. And if they do, the copyright holder then wants to sue. Registration is about $50, easy peasy, a few forms, and it’s well worth doing. So, you know, again, if it’s something like a broadcast, you don’t care about it. It’s something I’m doing, I’m teaching, let’s say it’s a class. I’m not going to register it with the Copyright Office. But if it’s something important, I advise doing it or you won’t be able to sue in federal court.

Kimberly King (18:22.254)

Interesting. That’s such a really good point that you bring up because again, if it’s $50 and you’ve written a book, why not just have that extra protection? So if you are writing anything now, now that’s since the Berne Convention, you don’t have to put the C with the circle around it, but do you at least say copyrighted or it’s assumed?

Doctor Robert Diotelevi (18:41.826)

It’s automatic. The copyright is automatic right. You don’t have to say it. Now I say it, you know, just to say it and make sure that people understand it. You can still put the little C in the circle if you want, but you don’t have to. So if somebody argues, hey, I didn’t know this was copyrighted. Come on, you know, somebody owned it and you stole it. You know, ignorance of the law is no excuse, and you’re going to get sued. Hopefully that copyright holder registered it so they can sue.

Kimberly King (19:07.329)

That’s great. Good advice. So you’re also talking about the internet being kind of fair game, isn’t it? It’s out there.

Doctor Robert Diotelevi (19:15.03)

Yeah, but that doesn’t mean it’s not copyrighted material. That doesn’t mean that there’s not a copyright holder out there. So when in doubt, ask permission. You know, just don’t feel that you can take something. I know of a case, it was in California, where several years ago, there was a professor who came up with a course, and then they moved to another university. Well, they had three links in a row that they had from, you was copyrighted material, and they got permission, and they put those three links in the new course that they had. The university owned the copyright rights of that entire course, and the professor argued, I did a whole new course. They took those three links though, put them one, two, three. The court ruled in the favor of the university, saying those links in that exact order, you violated the university’s copyright rights and that professor had to pay damages. So you gotta be real careful.

Kimberly King (20:10.968)

Wow.

Doctor Robert Diotelevi (20:13.802)

One thing I want to point out too, a little fun fact, is that after the years that go by, things go into the public domain, meaning that anybody can use them. And I know a lot of folks listening out there, they don’t realize this, but have added, here are a few things that have gone into the public domain in the past few years. Winnie the Pooh. Go write a Winnie the Pooh book. Frankenstein. The song Georgia on My Mind- Ray Charles.

Kimberly King (20:38.99)

Really?

Doctor Robert Diotelevi (20:43.382)

in the public domain. Really? The Maltese Falcon, one of my favorite movies with Humphrey Bogart. Yeah. Yeah, have at it. Betty Boop. I mean, if you’re old enough to remember Betty Boop from the cartoons. And believe it or not, near and dear to my heart in Florida, Steamboat Willie, the first movie ever made by Disney featuring Mickey Mouse- that is in the public domain.

Kimberly King (21:05.208)

So does that mean that because- I have- my father passed, but we always had a Winnie the Pooh thing, you know, and so if I wanted to write a book about Winnie the Pooh, because it’s in the public domain, I can just take it. Really? my gosh, interesting.

Doctor Robert Diotelevi (21:17.43)

Absolutely.

That’s public, it’s open. Other things are in the public domain too, Kim, including IRS forms. That’s why when you go to the post office, you see the tax forms and they say, make all the copies you want, use them, because forms like that from the government are not copyright protected. Other tax organizations, Charles Schwab, whatever, they put them in books, they use them for their customers or clients and the like, because they are not in the public domain. So certain things are, certain things aren’t.

Kimberly King (21:49.934)

So some people take music or video and repurpose that with small changes on social media for engagement purposes. Is that an infraction?

Doctor Robert Diotelevi (21:59.21)

It matters because you can’t take huge chunks of certain things. Now we educators, there’s something called fair use. And let me tell you about fair use to answer that question. This is from the Campbell versus Acuff Rose Music Incorporated Company, which is volume 510 of the U.S. report starting on page 569. It’s a 1994 case. And basically in that case, the Supreme Court came up with a four-part test as to whether or not it is educational-based fair use for teaching purposes. Number one, the purpose and character of the use, including whether or not the use is for a commercial nature or nonprofit educational purpose. Two, the nature of the copyrighted work. Three, the amount and substantiality of the portion used in relation to the copyrighted work as a whole.

And this is the big one, Kim, that they focus on, and this is where they get you. The effect of the use upon the potential market for or of the value of the copyrighted work. And again, that’s the Campbell Acuff case. So basically, if you’re using it for teaching purposes, that’s great. But if you’re using it in lieu of the students buying the book, the book creator has some problems with that. You’re stealing, you’re taking away their livelihood. And that’s what number four is. You’re affecting the potential marketplace. Or you take a book from somebody, several chapters, whatever, and you photocopy it. Now you go sell it out in the marketplace. Make a movie out of it, that’s when they have problems with you.

Kimberly King (23:33.164)

And you know, people do need to think about that. mean, it seems like, you know, I remember back in the day when people first had video cameras and they would go into the movies and then put it on the black market, you know, to, to paste it up. But yeah, you’re taking somebody’s livelihood away. So they flip the script on that. Can you talk a little bit about the teach act?

Doctor Robert Diotelevi (23:53.772)

Yes, the Teach Act, technically it is called the Technology, Education and Copyright Hominization Act. And that was signed by President George W. Bush, November 2nd, 2002. This offers a lot of improvements to our Copyright Act. And I won’t bore you with the sections here, but they are 110 and 112. The requirements thereof to get protection, we educators, for the Teach Act to use stuff, especially in the digital age online. And that’s really what this address is, Kim.

To use copyrighted materials in distant education, you have to qualify for Teach Act exemptions, and they are. The institution must be accredited, non-profit, educational in nature. So we’re not talking about like public broadcasting, PBS. They are not an accredited, non-profit, educational in nature thing. And so it’s the same thing also. If you’re a for-profit, organization or an educational institution, it has to be non-profit. It must be part of mediated instruction. This has to be like in a classroom or if you’re doing a seminar, conference, or whatever the case may be, then in certain circumstances, you can use stuff that is copyrighted. It has to be used for a limited number of people. In other words, students who have user IDs and passwords.

You cannot be just blasting this stuff out because you’re violating somebody’s copyright rights. And the session would be live or asynchronous. Now I get the question a lot, Dr. D, what happens if I’m a student and I have my username and password, I’m on the course and Billy, my roommate comes along and he sees this stuff, takes a picture of it, goes out and commits all type of violations.

The student is fine. The university is fine. The professor is fine. Billy is the copyright violator. And he did that and you basically the university professor, maybe even the student who was in this mediated instruction didn’t know that he was doing it. So nobody’s going to get sued. However, if let’s say I take stuff and go publish it or the student knowing full well takes stuff, goes out and maybe tries to make some money off of it. They’re not supposed to be doing that. We’re to have some lawsuits.

But the institution itself, again, if we have this password protection, username protection. If we put a copyright statement on the course and maybe a basic copyright statement for all students to see like maybe in the copy room when you go make copies on campus where they’re going to be maybe in the student union building, in our courses, as mentioned if we do everything we can to tell them stuff is copyrighted don’t steal it, that’s going to be a great boon to the university against lawsuits and of course the professors also.

Kimberly King (26:40.674)

You really do have to protect yourself, don’t you? You know, you’re thinking of everything. Hopefully you’ve written some books because you could probably tell all kinds of stories out there of some outrageous copyright violations. Do you any last minute advice to or last advice to the authors out there, especially authors or musicians or anything that when they’re in this?

Doctor Robert Diotelevi (27:04.856)

Well, when in doubt, ask permission. It doesn’t take much. A quick email, a text, or phone call. Ask permission. Is this stuff copyrighted? Can I have permission? But always, when in doubt, figure it is copyrighted. Again, we didn’t have time today to go through the Teach Act, but there’s a lot of ammunition out there, great library resources. If just Google them on the Teach Act, it will tell you what portions you can use of certain musical compositions, literary works, and the like.

But that’s basically what I would say, especially as an academician, make sure you tell your students things are copyrighted, you just can’t take them. And even we educators sometimes fall into that where we think, it’s on the internet, it’s free, there’s no copyright. As we learned today, uh-uh, be very careful, things are copyrighted and people are gonna be coming after you.

Kimberly King (27:56.002)

So interesting. really appreciate you taking the time. But we appreciate hearing all of your knowledge, Dr. D. And if you want more information, can visit National University’s website at nu.edu. And thank you so much again for all of your time today and wealth of information.

Doctor Robert Diotelevi (28:14.232)

Thank you, Kim, my pleasure. Thank you.

Kimberly King (28:19.512)

You’ve been listening to the National University Podcast. For updates on future or past guests, visit us at nu.edu. You can also follow us on social media. Thanks for listening.