A copyright is grounded in the U.S. Constitution and provides protection and exclusive rights to creators for their original works. These rights include:
- Reproduction rights;
- Right to prepare derivative works;
- Right to distribute copies of the work to the public;
- Right to perform the work publicly; and
- Right to display the work publicly.
Copyright laws cover the expression of ideas such as words, audiovisual works, pictures and digital media. However, copyright laws do not cover the ideas themselves. Copyright protection extends to “original works of authorship” which are “fixed in any tangible medium of expression.” Any work originating in the author with minimal creativity is protected.
Copyright exists at the time a work is created. To create a work, it must be “fixed” in a tangible/ physical medium such as a medium capable of preserving the work at issue. Examples include a book, magazine, computer chip or canvas. Despite popular belief, notice, or the more identifiable copyright symbol © is not required for works created after March 1, 1989. In addition, registration with the U.S. Copyright Office is not required but recommended. Copyright is automatic and lasts for the life of the author plus seventy years. If the work is anonymous, made for hire, or pseudonymous, the copyright lasts for the earlier of either ninety-five years from the first publication or 120 years from the creation.
Generally, before an action for copyright infringement can be brought in a federal court, a copyright registration application must be commenced.
A copyright is registered either before or within five years after initial publication, the registration certificate serves as primary evidence in determining and clearing ownership rights of a work. If however, a copyright is either not registered, or registered beyond five years after publication, the evidentiary weight of the copyright is placed in the court’s discretion.
The copyright owner may only obtain statutory damages and attorney fees if an application to register a copyright is filed within three months after publication of the work.
There are no disadvantages to registering one’s copyright. By registering your copyright, one affords them more protection in the case of infringement.
Ideas themselves are not protected under copyright laws. The expressions of ideas in a fixed tangible medium are protected. That means, once an idea is expressed i.e, written in a book, magazine, recorded, taped, etc., it is protected under copyright laws.
No, registration with the U.S. Copyright Office is not required for protection, however it is recommended in order to fully protect one’s copyright rights.
Although copyright protection is automatic, it does not grant as many benefits as having the copyright registered with the U.S. Copyright Office. Federal copyright registration enhances the protection that one automatically receives once their idea is expressed in a fixed medium.
Yes, several international treaties of which the U.S. is a party to allow for protection of works created by citizens of each country. For a complete list of countries and treaty members, please visit http://www.copyright.gov/circs/circ38a.pdf.
The fair use doctrine permits the unauthorized use of some copyrighted material without infringement liability. In determining whether or not the use of certain works is “fair” U.S.C.A
107 sets out four factors to consider:
- The purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes.
- Courts are more likely to find non profit educational and transformative (works
that add something with a new purpose or different character) works as “fair.”
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Works become part of the public domain, and are therefore not copyrightable and may be used by anyone, when the owner’s rights have expired, been forfeited by abandonment or dedication to the public, or when they are inapplicable.
- A work created before copyright laws came into existence is part of the public domain
- A work of the government is part of the public domain.
The Digital Millennium Copyright Act provides limitations on liability of online service providers (OSP) for copyright infringement and increases penalties for Internet copyright infringement.
Patent law protects inventions of novel and non-obvious items. Unlike copyright, a patent protects against subsequent similar inventions that are independently or dependently produced. Because the standard of originality is much higher to satisfy than that of copyright, patents take more time and effort to obtain. Unlike copyrights, patents only last twenty years after the initial application date.
A trademark is a symbol, logo, phrase, name, word or any other design used to identify and/or indicate sources of goods and services. Trademarks are used to distinguish goods and services of one source from goods and services of another, however, they are not used to stop others from making or selling similar goods or services using different symbols, logos, etc. Unlike both copyright and patent law, trademarks are a matter of both federal and state laws and the duration is not limited by statute. So long as the trademark is properly maintained and not abandoned, the trademark registration is valid.
The Berne Convention is one of two major international copyright treaties. The Berne Convention states that, not subject to formalities, when authors of works are in member countries outside the country of their origin should be afforded the rights granted to their nationals.
The UCC is the second of the two major international copyright treaties. The UCC was created for countries that did not sign the Berne Convention and ensured that authors of works first published abroad may enjoy copyright protection without following any provisions.
The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations that administers intellectual property (copyright, trademark, and patent) treaties.
The Technology Education and Copyright Harmonization (TEACH) Act allows educators to perform and display copyrighted works for distance education (education that does not involve a face-to-face classroom setting) subject to a few requirements.
Yes, with the adoption of the Digital Millennium Copyright Act, the rights of copyright protected have been expanded to include online works.
Although not necessary for works created on or after January 1, 1989, a notice serves as a notification to the public that the work is under copyright and is a good rebuttal to the “innocent infringement” defense raised by many defendants in an infringement case.
A valid copyright notice includes:
- Either the symbol ©; the word copyright; or the abbreviation Copr.;
- The year it was first published; and
- The name of the copyright owner.
As a general principal, one can never use a copyrighted work without the owner’s permission. However, under the fair use doctrine, subject to some limitations, some works may be used without authorization.
As a general rule, copyright ownership initially vets in the author or authors of a work.
- In cases where two authors worked together to create a work, each coauthor enjoys an
independent right to use or license the copyrighted work without obtaining permission of the other coauthor.
- An employer owns works made “for hire.” That is, works created by employees working
in the scope of their employment; and some types of works that are specifically commissioned.
- Authors that contribute to works published as a collective work own the copyright in
their individual works.
A joint work is a work created by two or more authors intended to be merged as a whole. In a joint work, each coauthor owns an undivided interest in the complete work. That is, each coauthor may enjoy an independent right to use or license the material without first obtain permission.
To qualify as “joint authors” each coauthor must independently contribute to the work and intend to be a coauthor.
Subject to a few factors, employers owns works created by their employees and works specifically commissioned.
Yes. Any exclusive right of a copyright owner may be transferred to and owned by a different person. The copyright owner may choose to transfer all or part of his or her interest. In doing so, the original copyright owner may retain some rights for himself while also affording the second owner “all of the protection and remedies” accorded to the original owner.
One should always begin their search by looking at the copyright notice on the work. However copyright notice is not necessary and therefore not all works contain notices. The next step is checking the United States Copyright Office for registrations of the copyright: www.copyright.gov/records. Again however, registration is not necessary and therefore not all works are registered. One can do a simple Internet search or contact various organizations that help identify copyright owners to identify the owner of a copyright.
To seek permission to use a copyrighted work, you must either contacting the owner directly or contact an industry agency or publisher.
A plaintiff must show that he/she (1) owned a valid copyright, and that one (2) copied elements of the work that were original. Intent to copy a work is not required for an infringement claim.
The severity of the punishment, that is whether one will receive a fine or imprisonment, weighs on the unlawful number of copies made, the value of the copies, and whether it is a first time offense.
An owner whose copyright has been infringed may collect either monetary damages or have an issue ordered by the courts (injunction or restraining order). Monetary damages include actual damages, statutory damages, or the infringer’s profits. The winning party may also recover attorney’s fees. Under the Copyright Act, to recover statutory damages and attorney’s fees one must first register his or her copyright.
To apply for registration of a copyrighted work, an author must provide the Copyright Office with a “deposit.” That is, an actual sample of the work that the office keeps on file. To register a copyright, an author must submit his or her work to the Copyright Office with a completed application form and an application fee.
When a copyright owner’s rights have been infringed, he or she has the right to file a lawsuit in the Federal Courts asking for either an issue order (injunction or restraining order) or monetary
To check the status of a registered work, you can visit www.copyright.gov/records.
Common defenses to copyright infringement include:
- Fair use doctrine
- Statute of limitations has passed
- The work was not copied and was independently and originally created.
- Admission to copying but claiming that the copied material is so small that it is “de minimis.”
No. Under the Copyright Act, protection of copyright only extends to “original works of authorship.” To be protected, a work must have a minimal amount of original authorship. Words, short phrases, names, and titles do not satisfy the rule.
All unpublished works enjoy the protection of the Copyright Act. Works first published in a member country of WTO, The Berne Convention, or in the United States are also protected and may be registered with the U.S. Copyright Office.
Yes. A minor may claim a copyright.
The Federal Government and the governments of some states are not immune from infringement claims and therefore may be sued for copyright infringement.
This is an informal way of putting the public on notice that the work is protected by copyright.
In addition to civil prosecution, Copyright law allows for criminal prosecution by the United States for certain copyright violations.
For works created on or after January 1, 1978, the copyright lasts for the life of the author plus seventy years. If the work is anonymous, made for hire, or pseudonymous, the copyright lasts for the earlier of either ninety-five years from the first publication or 120 years from the creation.
Works created on or after January 1, 1978, are not subject to copyright renewal. For works created before January 1, 1978, copyright renewal is optional after twenty-eight years.
Any original works appearing on a website can be copyright protected.
Copyright laws do not protect domain names. For more information regarding the regulation and enforcement of domain names, please visit the Internet Corporation for Assigned Names and Numbers (ICANN) at www.icann.org.