Overview: Copyright Law

A copyright is a form of protection provided by the laws of the United States (Title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright protection begins from the time the work is created in a fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. 17 U.S.C. § 102. Only the author or those deriving their rights through the author can rightfully claim a copyright. In the case of works made for hire, the employer and not the employee is considered to be the author. 17 U.S.C. § 101.

Copyrightable works include the following categories: 1 literary works 2 musical works, including any accompanying words 3 dramatic works, including any accompanying music 4 pantomimes and choreographic works 5 pictorial, graphic, and sculptural works 6 motion pictures and other audiovisual works 7 sound recordings 8 architectural works. 17 U.S.C. § 102.

Several categories of material are generally not eligible for federal copyright protection. These include among others:

  • Works not fixed in a tangible form of expression (for example, unrecorded choreographic works, or improvisational speeches or performances that have not been written or recorded)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; listings of ingredients or contents
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or common sources). US Copyright Office Circulator 01: Copyright Basics. If you need help or have questions about a copyright issue it is recommended you contact an experienced attorney at The Law For All today.

What’s Required for Copyright Protection?

Copyrights arise, by operation of law, immediately on a work being committed to paper, computer memory or disk or other medium. The Copyright Act protects works that have been "fixed in any tangible medium of expression" (17 U.S.C. § 102(a)). Publication of the work is not required. Ownership of a copyright automatically vests in the author(s) of the work (depending on the type, this might be a writer, artist, musician or programmer) or, if the work qualifies as a work made for hire, the employer of the creator or the commissioning party. Intellectual Property: Overview, Practical Law Practice Note 8-383-4565.

Copyrights may be registered through formal application with the Copyright Office. Contact The Law for All to have an experienced attorney help you with this process for a flat fee. Formal registration is not required for rights to attach. However, a copyright owner must generally register a copyright before bringing a related copyright infringement action in federal court. 17 U.S.C. §504. Also, statutory damages are not available unless the copyright was registered before the infringement, or within a three-month grace period after first publication of the work. Id.

Once issued a federal copyright, there are five exclusive rights the copyright owner enjoys with three major restrictions. The five rights are: (1) the right to reproduce the work, (2) the right to adapt it or derive other works from it, (3) the right to distribute copies of the work, (4) the right to display the work publicly, and (5) the right to perform it publicly. 17 U.S.C. §106. Under U.S. copyright law, each of these rights may be individually parsed out and sold separately by the copyright owner. Id. All five rights terminate after the lifetime of the author plus 70 years—or in the case of works for hire, the term is set at 95 years from publication or 120 years from creation, whichever comes first. 17 U.S.C. §302.

Aside from limited duration (17 U.S.C. §302), the rules of fair use (17 U.S.C. §107) and first sale (17 U.S.C. §109(a)) also restrict the rights of copyright owners. (For these more complex issues it is recommended you speak to a copyright attorney). Fair use” is notoriously difficult to explain, but it is generally recognized that it allows anyone to make limited use of another's copyrighted work for such purposes as criticism, comment, news reporting, teaching, scholarship, and research. 17 U.S.C. §107. The “first sale” rule prevents a copyright holder who has sold copies of a protected work from later interfering with the subsequent sale of those copies. 17 U.S.C. §109.

Factors to Consider: Benefits of Copyright Protection

(1) Copyrights protect works against unauthorized reproduction, even if the work has been "published" (e.g., released without restrictions on disclosure of the information they contain).

(2) Once a work is registered (or if the work is registered within the three month grace period), the owner may seek statutory damages (17 U.S.C.A. §504(c)) and attorney fees (17 U.S.C.A. §505) as sanctions against people who infringe their work. This means the owner can get paid.

(3) Copyright protection has a long life. If the work is a "work made for hire" (17 U.S.C.A. §101) created by an employee as to which the employer is deemed to be the "author", the U.S. copyright lasts for the lesser of 120 years from creation or 95 years from the date the work is first published. 17 U.S.C.A. §302. If a natural person is deemed to be the author, the copyrights last for that person's life plus 70 years. Id.

(4) Copyright protection is among the easiest of the intellectual property protections and is gained instantly. U.S. copyright registration is very inexpensive ($35-55 filing fee/each). http://copyright.gov/about/fees.html. However, if the owner wishes to treat the works as an unpublished work and to petition for more complex filings with the Copyright Office (where the deposited materials will be publicly available), legal assistance may be desirable. It may also be possible to register copyrights under the "rule of doubt" to prevent loss of trade secrets. This is used with object code. The Office cannot read the code, thus disclaims that it is copyrighted. It is still deposited as of that date but there is no presumption that the code is copyrighted.

(5) Under the Berne and other Conventions, copyright protection is available in other countries who are also members of the Convention (without the need to individually file in each country).

(6) Copyright protection is available for compilations of information (even if the data itself is in the public domain), as well as for the application software which uses the database information (if the arrangement, selection and coordination is original).

(7) Copyrights may be registered at any time during the life of the copyright. Copyrights registered within the first 5 years of creation give the owner a presumption of validity and the infringer has the burden of proving that the owner does not have copyrights. However, even if the copyright is not registered within 5 years after first publication of the work, the owner is still entitled to copyright protection if the owner satisfies the burden of proving it is entitled to it in any subsequent infringement litigation (not just that particular action).

(8) The Employer of the creator automatically owns copyrights in tangible works created by its employees within the scope of employment unless agreed otherwise. 17 U.S.C. §101.

Factors to Consider: Costs of Copyright Protection

(1) Copyright protection is very narrow. Copyrights protect only against copying an original expression and not the underlying ideas, processes, procedures, methods of operation, conception or principles embodied in the copyrighted works. Competitors can take the ideas or facts without infringing copyrights.

(2) Unless special relief is granted, registration of copyrights requires depositing a complete and unmasked copy with the Copyright Office (and if the work is a "published work," depositing two copies with the Library of Congress), where competitors may read them. Trade secret protection will be lost for any information submitted.

(3) As software, brochures, and so forth are updated, copyrights may need to be registered in each subsequent release if it contains substantial enough differences from the previously registered version (e.g. added functions, increased efficiencies, and not just error corrections). The Copyright Office will require disclosure of the ways in which the then current release differs from the previously registered version. This means that the registrant must either keep good records of changes as they are made, or else preserve a copy of each registered version of the software so that an accurate description of differences can be created.

(4) Most state and government agencies are immune from liability for copyright infringement.

(5) Copyrights are only effective if the owner enforces their rights. In order to enforce their rights, owners are financially responsible for self-policing their copyrights to prevent infringement. This may include cease and desist letters or a federal civil lawsuit (very expensive). However, since many users tend to ignore copyrights and make copies for friends or intercompany use, it is difficult to detect and stop the improper use.

(6) If the creator of the work is not an employee and is rather a freelancer or subcontractor, copyrights in the work they are paid to create must be assigned in writing to the company commissioning the work. Otherwise, the commissioning company only gets the right to use the work in specified ways, and the freelancer or subcontractor retains ownership of the copyrights. It doesn’t matter if the parties intended to create a work-for-hire. The courts look at the conduct of the parties and whether they acted as a contractor or employee.

Is it Worth It?

Overall the number of benefits outweighs the costs associated with copyright protection. However, it is important to note that the scope of copyright protection is very narrow. It does not protect the idea only that particular expression of the idea. But since, gaining copyright registration is relatively cheap and easy to do; it is still worth pursuing despite the narrow protection. Contact The Law for All today to help you with the copyright process. We offer flat fee service options so legal fees are predictable and you have no surprises on your billing statement.