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 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.”
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.
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.
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.
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.
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
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
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.
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.
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.
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 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.
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.
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.
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?
What is the function of Copyright?
- 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?
- 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?
How is Copyright protection secured?
If a work is created over a period of time, what is the copyright date?
What is notice of Copyright?
What is used to provide notice of copyright?
Visually perceptible copies
- the word “copyright”, the abbreviation “Copr.”, or the symbol ©; and
- the year of first publication; and
- the name of the copyright owner
Phonorecords of sound recordings
- the symbol ; and
- the year of first publication; and
- the name of the copyright owner