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Copyright Law Basics

Intellectual property results from exercise of the faculties of the mind. In this regard, intellectual property may be books, magazine articles, music and other works of authorship. These forms of intellectual property are protected by copyright law. Copyright law protects the owner of the copyrighted work with respect to unauthorized copying of the copyrighted work by others.

Copyright law protects creators of "original works" of authorship. Under the U.S. copyright statute, copyrightable works include:

  • Literary works
  • 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
  • Sound recordings
  • Architectural works.

Copyright protection applies both to published and unpublished works of authorship.

The copyright owner has the exclusive right to reproduce the work; prepare other works based on the work (i.e., prepare "derivative works"); distribute copies of the work by sale or lease; perform the work publicly; display the work publicly; and authorize others to do the same. To be eligible for copyright protection, the original work of authorship must be "fixed in a tangible medium of expression." For example, a book, magazine article, or newsletter is copyrightable subject matter because they are works of authorship fixed in a tangible medium of expression. Of course, the work must be original (independently created by the author) and not a copy of or substantially similar to a preexisting work by another. A database for searching federally registered copyrights is hosted on the U.S. Library of Congress Website. A commercial database service for searching copyrights is on the Dialog Database Website, which is hosted by the Thompson Corporation. Other databases are available, as well.

Sometimes, authors fail to appreciate that copyright law does not protect the idea, facts or general techniques expressed in the work. For example, a specific computer software program may be protected under the copyright statute. However, the general idea of using computer software programs can not be protected by copyright. Such a computer program may instead be protected by the patent law.

Copyright law protects against out-right copying of the work or producing a work that is substantially similar to the copyrighted work. With regard to this latter point, copying a copyrighted work and then changing a word or two in the copyrighted work will not circumvent the copyright statute because such a copy is substantially similar to the original copyrighted work.

What is the term of a copyright?
A copyright lasts for the life of the author plus 70 years for works published after 1977. A work is "published" when it is shown to others on an unrestricted or non-confidential basis. If a work is a "work made for hire," or published anonymously or under a pseudonym, the life of the copyright is between 95 and 120 years, depending on when the work was published. Works published before 1923 in the United States are in the public domain. Works published after 1922 but before 1978 are protected for 95 years. If the work was created, but not published before 1978, the copyright lasts for the life of the author plus 70 years. If the author died more than 70 years ago and the work was never published, his copyright terminated on December 31, 2002. If the author died over 70 years ago, and a previously unpublished work was published before December 31, 2002, the copyright will last until December 31, 2047. As can be seen, determining the life of a copyright can be complicated. An intellectual property attorney should be consulted with regard to any particular situation.

Sometimes, an individual or business owner will use the services of an independent contractor to prepare a work that is copyrightable, such as a computer program. To protect his rights in the work, the individual or business owner may ask the independent contractor to sign a "work made for hire" agreement. Generally speaking, a "work made for hire" agreement with an independent contractor must relate to one or more of the following nine statutory categories of commissioned works listed in the U.S. Copyright Act:

  • A translation
  • A contribution to a motion picture or other audiovisual work
  • A contribution to a collective work (such as a magazine)
  • As an atlas
  • As a compilation
  • As an instructional text
  • As a test
  • As answer material for a test
  • As a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).

Incidentally, computer software programs do not fall within any of these categories. Thus, a computer programmer may arguably own the copyright in the software and the entity that commissioned the work will have no right to copy or distribute it without the independent contractor's permission. This is true even if one fully paid the programmer and the computer programmer signed a "work made for hire" agreement. A solution to this problem is to include language in the work made for hire agreement that the computer programmer assigns his entire copyright to the individual or business that commissioned the work. If the programmer refuses to assign his entire copyright to the individual or business that commissioned the work, then the individual or business owner may consider asking for a license. Types of licenses are exclusive licenses, "sole" exclusive licenses or nonexclusive licenses. The computer software example above illustrates that work made for hire agreements should be drafted carefully.

How is a copyright obtained?
Many authors labor under the misconception that a work must contain a copyright notice and/or be registered with the U.S. Copyright Office in order to receive copyright protection. This is not the case. A copyright to an original work of authorship is automatically perfected the instant the work is fixed in a tangible medium of expression, such as written on paper, saved on computer disk, completed as a sculpture, completed as music recorded on tape, etc. A copyright notice on the work is no longer required in order to obtain copyright protection for works first published on or after March 1, 1989. However, a proper copyright notice on a work nonetheless obtains certain legal advantages, as explained below. A proper copyright notice allowable by statute is the word "Copyright" followed by the year of first publication of the work and then the name of the owner of the work. For example, a hypothetical copyright notice might read as follows: "Copyright 2007 John Doe." Such a copyright notice should be visibly placed on the work where the notice can be ascertained without unduly searching for the notice. Other acceptable forms of copyright notice are provided in the copyright statute (Unted Stated Code, Title 17).

Even today, there is still confusion among authors as to whether or not a proper copyright notice requires the words "All Rights Reserved," such as "Copyright 2007 John Doe. All Rights Reserved." The words "All Rights Reserved" were once required by a treaty signed at the Buenos Aires Convention in April 1910. These words are no longer required because the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention of 1971 effectively replaced the requirements of the Buenos Aires Convention. The United States ratified the Universal Copyright Convention on July 10, 1974. The United States became a party to the Bern Convention on March 1, 1989. However, due to the intricacies of these three treaties, the only countries where the words "All Rights Reserved" are still required are Honduras, Bolivia and Nicaragua for works published in those countries. Otherwise, the words "All Rights Reserved" have no legal effect.

A proper copyright notice informs a prospective infringer (someone who plans to copy the copyrighted work) that one is claiming copyright ownership in the work. If the prospective infringer copies the work in spite of seeing the copyright notice, then he willfully infringes the work because he is aware that someone is claiming ownership of the copyright. Thus, under U.S. law, if the copier is found to have willfully infringed a valid copyright, then he may be liable for three times the money damages he otherwise would have had to pay the copyright owner. This is in essence a "penalty" the law imposes for willful infringement. Also, the infringer will have to dispose of all infringing copies of the work.

As indicated above, registration of the copyright in the U.S. Copyright Office is not required to perfect the author's legitimate copyright in the work. However, registration is necessary to sue an alleged infringer to recover damages for copyright infringement and to get an injunction to stop the alleged infringer from using the copyrighted work. One may sue for actual damages (the monetary loss caused by the infringement), the infringer's additional profits he made on the use of the work, and statutory damages (up to a limit of $150,000) and attorneys' fees in appropriate cases. In order to receive the full panoply of these damages, the work must be registered either within three months after the work is first published or before the infringement first occurs. If the copyright owner registers the work later (such as after the infringement occurs), the copyright owner will only receive actual damages and the infringer's profits.

Current cost to register a work for copyright protection in the U.S. Copyright Office is readily available from the U.S. Copyright Office Website. After the copyrighted work is registered, the Copyright Office will send the registrant a date-stamped Certificate of Registration as proof of registration. Registration is prima facie evidence of the copyright's validity if the registration occurs within five years after first publication.

An intellectual property attorney can assist an author in registering his copyright. Also, there are Internet online services that will assist in registering the copyright for a fee. Alternatively, one can attempt to register the copyright himself by getting the necessary forms from the U.S. Copyright Office or from various Internet on-line sources.

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