Copyrights

Copyrighted materials are often marked with the abbreviation “Copr.”, the symbol ©, or the word “copyright”. These labels inform the public that the work is an original and, therefore, may not be distributed without prior authorization. For example, most popular music you hear everyday is protected by copyright. Therefore, it is copyright that prevents centralized commercial entities from distributing this music at will on the Internet without permission of the copyright owners.

For more information regarding copyrights, please refer to our questions section. If the information you are seeking is not available on this website, please feel free to Email us or refer to the Library of Congress Copyright Office Website.

Copyright Law

Copyright law is relatively straightforward for general practitioners helping protect the creative works of their clients.  Copyright law is also relatively inexpensive and user-friendly, while providing hard-nosed remedies over a long effective term – “life plus 70 years.”

I.  General Principles

Copyright law gives the creator of an original work the right to keep others from using the work without permission. In copyright, the “creator” is known as the “author,” and the “work” is any original expression of an idea fixed in a medium. For example, copyright may exist in computer programs, costumes, films, novels, photographs, songs, and many other physical forms.

“Original” in this context means “originates from,” and “expression” applies only to a particular expression, and not the ideas or facts underlying the expression. For example, the text of the novel Gone With the Wind would be protected by copyright when written. However, the idea of a love affair in the South after the Civil War is not protected. “Fixation” is an expansive concept, and includes images or sounds or symbolic indicia, etc. embodied on magnetic tape, in digital memory, or in structural works such as buildings or sculptures. Fixation may be made in new media as the new media is developed.

Copyright requires some minimal creativity.1 Strictly alphabetical phone listings, for example, are uncopyrightable facts. Therefore, copyright does not protect all things from the “sweat of the brow” of the author, but requires some creative input.

Also, copyright does not protect the author against independent creation by others, but only against unauthorized copying. “Copying” means “mechanical reproduction,” but this term is also interpreted expansively. For example, the loading of a computer program into memory has been found to be a form of copying which may constitute copyright infringement.2

Copyright is actually a bundle of separate exclusive rights, including the exclusive right to reproduce, display, perform, distribute or prepare adaptations, known as “derivatives” of the work. Derivative works include, for example, translations in other languages, including different computer languages, a movie based upon a play or book, and condensed, annotated, or abridged versions of literary works. These rights of the bundle may be commercially exploited separately with the author’s permission. A writing is required in order to assign or exclusively license a copyright. A writing is not required to grant a non-exclusive license; oral or implied non-exclusive copyright licenses are permitted.

 

Therefore, an assignment from the author is one way for someone other than the author to own a copyright.  This is because authors/co-authors are the original owners of the copyrights they create.  A second way for someone other than the author to own a copyright is the case of an employer owning a work created by an employee in the course of the employee’s employment.  A third way is the case of one who commissions a work by an independent contractor, when the parties sign a written work-made-for-hire agreement and the work falls within one of the listed statutory categories of commissioned works that can qualify as works made for hire. 3

Copyright protection lasts a long time. For most works published after January 1, 1978, the copyright term is life of the author plus 70 years. For “works for hire,” and for anonymous/pseudonymous works, the copyright lasts 95 years from publication or 120 years from creation, whichever is shorter. After a copyright expires, the work goes into the public domain, and becomes available for anyone’s use.

II.  Obtaining Copyright Protection

Copyright comes into being immediately and automatically upon fixation of the work in a medium.  Neither affixation of the copyright notice nor registration with the Copyright Office are necessary in order to create the copyright.  The copyright notice consists of the symbol © or the work “copyright,” plus the name of the owner, plus the year of first publication.  “Publication” means made available to anyone of the public on an unrestricted basis.   By affixing the copyright notice to published works, the author prevents others who copy the work without permission from claiming that they did not know the work was protected by copyright.   This can be important in a suit to enforce the copyright, because the author is more likely to recover more damages from a deliberate, as opposed to an innocent, infringer.  Affixation of the copyright notice, although advisable, has not been required since March 1, 1989.  Before then, however, publication of the copyrighted work without the notice resulted in a waiver of the copyright.

 

Timely registration with the U.S. Copyright Office provides advantages in suits to enforce the copyright.  If registration is made within three (3) months of first publication, or prior to infringement, statutory damages up to $150,000 per infringement, and possibly also attorney’s fees, are available.  Otherwise, actual damages or the infringer’s profits must be proven, which can be difficult.  Also, if registration is made within five (5) years of first publication, it is prima facie proof of validity of the copyright and of the truth of the facts recited in the registration certificate.   In addition, with a registration, the copyright owner has the right to enlist the assistance of the U.S. Customs Service for policing infringement of the work at the ports and airports of the United States.

 

Registration is achieved by filing the appropriate signed form, plus a deposit copy of the work to be registered, plus (currently) a $30 filing fee.  Two deposit copies are required if the work has been published.  Application forms, and instructions for completing them, are available here.

The forms are organized according to the type of work, for example, Form PA for performing arts, Form SE for serials, Form SR for sound recordings, Form TX for literary works, Form VA for works of the visual arts, etc.  In addition, informational brochures, known as

The forms are organized according to the type of work, for example, Form PA for performing arts, Form SE for serials, Form SR for sound recordings, Form TX for literary works, Form VA for works of the visual arts, etc.  In addition, informational brochures, known as “circulars,” are also available on many specific copyright registration topics.  A particularly helpful circular for beginners is entitled “Copyright Basics.” 4

III.  Enforcement of Copyright

Copyright infringement creates federal court federal question subject matter jurisdiction.  However, claims relating to ownership of a copyright by assignment, or right to or terms of use of a copyright due to a license, may only involve state law personal property or contact law issues.

The copyright plaintiff’s case requires: 1. proof of plaintiff’s ownership of a valid copyright; and 2. copying of original elements of the work by defendant. The first ownership element is proved up by the copyright registration certificate. The second copying element may be proved up in two ways: a. direct proof of copying; or b. proof of access to the copyrighted work and “substantial similarity” between the works.5

 

In evaluating “substantial similarity,” the courts of the 9th Circuit first filter out elements, for example, bare facts, which are not protectable.6  Other Circuits, however, do not filter, and apply the “ordinary observer” test by comparing the works as a whole, including uncopyrightable elements.

Common defenses to copyright infringement claims are: 1. Statute of limitations (3 years from first infringing act); 2. the infringement is allowed as a type of “fair use”; 3. the infringement was innocent because the infringer had no notice of the copyright; 4. the infringing work was independently created, i.e. it wasn’t copied from the original; or 5. the use by the alleged infringer was permitted, or licensed, by the copyright owner.

 

“Fair use” means the infringement is excused on a policy basis because the work is being used for a laudatory purpose, such as research, scholarship, criticism or journalism.  Courts weight several factors when analyzing the defense of fair use, including whether the use is commercial or non-profit, and whether the use is consistent with established industry practices. Courts also consider the amount and extent of the work copied, and the impact of the alleged fair use on the market for the work.

If copyright infringement is found, the court may award statutory damages ranging from $200 per infringement for innocent infringement to $150,000 per infringement, plus possibly attorney’s fees, for willful infringement. Instead of statutory damages, the court may award plaintiff’s actual damages, including diminution in market value of plaintiff’s copyrighted work and lost profits. The court may also order that defendant disgorge, to plaintiff, defendant’s own profits, as well as issue restraining orders and injunctions to prevent further violations.

1. Feist Publications, Inc. v. Rural Telephone Service Co., 449 U.S. 340 (1991).

2. Mai v. Peak, 991 F.2d 511 (9th Cir. 1993).

3. 17 U.S.C. Section 101    — 1. a work specially ordered or commissioned for use as a contribution to a collective work; 2. a part of a motion picture or other audiovisual work, such as a screenplay; 3. a translation; 4. a supplementary work; 5. a compilation; 6. an instructional text; 7. a test or answer material for a test; 8. an atlas; or 9. a sound recording.  See Community For Creative Nonviolence v. Reid, 490 U.S. 730 (1989).

4. Copyright Basics, U.S. Copyright Office, Circular 1 (September 2000)

5. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000).

6. Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir.2003).

*Printed for Idaho State Bar
Intellectual Property Law Section
 ADVOCATE Article

Look Before You Leap!

Preserving your Rights in the Intellectual Property Marketplace.

Introduction

Obtaining protection for intellectual assets is important to individual inventors and multinational corporations alike. Yet, most inventors are unfamiliar with the many forms of intellectual property protection available and the rights afforded under them. Knowing your rights and the ways in which these rights may be challenged or waived is critically important to the development and preservation of any intellectual property asset.

Many opportunities for obtaining intellectual property protection can be lost or severely limited by your action, by your failure to act, or by events which may or may not be under your control. No case is the same; therefore, an experienced patent attorney should be consulted in all intellectual property matters. However, your familiarity with the information contained in this article will greatly improve your chances of obtaining adequate protection for your ideas.

 

Copyright

Copyright is a form of intellectual property protection provided to authors of original works (which are fixed in a tangible form of expression) granting an exclusive right to distribute a work publicly. Literary, dramatic, musical, artistic, and certain other intellectual works may be afforded copyright protection. Copyright protects an owner’s right to reproduce the work, prepare derivative works, publicly perform or display the work, and otherwise distribute the work.

Copyright protection is secured automatically the instant a work is fixed in a tangible form for the first time. Therefore, dated records detailing the creation and any distribution of an original work are very important to the enforcement of copyright. Registration of copyright is not necessary to assert the rights associated with copyright ownership; however, registration has many advantages. An owner’s rights under established copyright laws may be lost or limited in a number of ways. The following paragraphs outline several common examples of actions that may limit the rights of a copyright owner.

Omission of notice

Any copyrighted material should be marked with an appropriate notice of copyright. Proper notice includes the symbol ©, the abbreviation “Copr.” or the word “Copyright”. The name of the copyright owner and the first year of publication should also be listed on any copyrighted work. Copyright may be lost for works first published before 1978 without proper notice and for works published without notice prior to March 1, 1989 if the work was not registered within 5 years after the date of first publication. In the United States, omission of notice in all other cases does not terminate the copyright, but limits, for example, the right to statutory damages for infringement.

 

Foreign publication

Copyright is likely lost for an original work first published in a country not party to the Berne Convention if registration of the work in the United States, or another country that is party to the Berne Convention, does not occur within 30 days of the publication date.

 

Failure to register

Although registration of copyright is not necessary to assert rights of ownership, timely registration may be beneficial in the event of infringement. Registration of copyright within 3 months of the date of first publication may entitle copyright owners to statutory damage awards in the case of infringement. The statutory damage amount is automatic and establishing proof of actual damages is typically not required when claiming statutory damages.

Copyright Questions & Answers

What is a Copyright?
Copyright is a form of intellectual property protection provided by the United States government to authors of original works which are fixed in a tangible form of expression. Subject matter that may be protected by copyright includes: literary, dramatic, musical, artistic, and certain other intellectual works.
What is the function of Copyright?

Copyright protection confers upon the author of an original work the right to do and to authorize authors to do the following (according to the respective field of the work):

  • Reproduce the work
  • Prepare derivative works
  • Distribute copies of the work
  • Perform the work publicly
  • Display the work publicly
  • Perform the work publicly through digital audio transmission
What is not protected by Copyright?

Unprotected works include, among others, the following:

  • Works that have not been fixed in a tangible form of expression
  • Titles and short phrases; familiar symbols; variations of typographic ornamentation; descriptive listings (i.e. ingredient lists)
  • Ideas, discoveries or devices that may constitute another form of intellectual property, specifically patents
  • Works consisting entirely of information that is common knowledge
Who can claim Copyright?

With few exceptions, the instant an original work is created in fixed form, the copyright becomes the property of the individual(s) who created the work. Authors of joint works are co-owners of the copyright unless an alternative agreement exists. If the work is the result of a “work made for hire” arrangement, the employer is considered the owner of the copyright. Minors may claim copyright, but state laws may regulate matters pertaining to the ownership of such copyrights.

How is Copyright protection secured?

Copyright protection is secured automatically when a work is created in tangible form for the first time. No correspondence with the Copyright Office is required to obtain copyright; however, there are definite advantages to registration.

If a work is created over a period of time, what is the copyright date?

The portion of a work that is fixed in tangible form as of a specified date constitutes the created work as of that date.

What is notice of Copyright?

A copyright notice is used to inform the public that a work is protected by copyright, identify the copyright holder, and show the date of first publication. Notice is also important to protect against innocent infringement. Various symbols are used to provide notice of copyright.

What is used to provide notice of copyright?

The following information is used to denote copyrighted material in the appropriate field:

Visually perceptible copies

  1. the word “copyright”, the abbreviation “Copr.”, or the symbol ©; and
  2. the year of first publication; and
  3. the name of the copyright owner

Phonorecords of sound recordings

  1. the symbol ; and
  2. the year of first publication; and
  3. the name of the copyright owner