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Copyright Resource Center :: Quick Links
Things to know about Copyrights
Frequently Asked Questions
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Things to know about Copyrights
1. Copyright applies to any original work of authorship that has been "fixed in any tangible medium of expression." 17 U.S.C. § 102 This includes music, books, photographs, certain three-dimensional designs, computer software, architectural drawings and certain architectural works (buildings).
2. The copyright owner has the exclusive right to copy, distribute copies of, or create derivative works from the "work" that is subject to copyright. See 17 U.S.C. § 106. The copyright owner's exclusive rights last for the life of the author plus seventy years. 17 U.S.C. § 302.
3. To copy generally means showing substantial similarity combined with access to the copyrighted work.
4. The rights exist from the moment of fixation. Neither copyright registration nor use of a copyright notice on published works are required for works created after March 1, 1989. However, use of the statutory notice and registration procedures enhances the rights and remedies available to the copyright owner. See 17 U.S.C. §§ 401 (d), 410 (c), and 412. Registration is a jurisdictional requirement for infringement litigation. 17 U.S.C. § 411.
5. For works created prior to March 1, 1989, the failure to follow notice and registration formalities can result in forfeiture of the copyright.
6. For works created prior to 1978, an entirely different set of rules may be applicable.
7. The copyright belongs to the author. If the person who created the work did so for an employer, the employer is deemed to be the author. 17 U.S.C. § 201.
8. A commissioned work is not a work made for hire unless it falls within one of several narrow categories 17 U.S.C. § 101. Therefore, the copyright in a work created by an independent contractor needs to be assigned.
9. For a recorded musical work, there are diverse copyrightable interests that can be owned by different authors, e.g., composer, lyricist, arranger, producer.
10. Transfers in ownership generally are required to be in writing. See 17 U.S.C. § 204 (a). Most courts require this writing to be contemporaneous.
11. Ownership of the physical object in which the work is embodied (e.g., a record master) does not establish ownership of the copyright.
12. It is important to note that in the music business, a contractual right to receive royalties is often separated from the ownership of the copyright, e.g., songwriters who assign the copyright to a publisher. |
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Frequently Asked Questions
1. What is a copyright?
A copyright provides protection of the content of new works of authorship by protecting the form of expression of the work. Copyright protection allows the author to (1) control the right to copy and (2) control derivative works, such as plays, adaptations, motion pictures, visual presentations or other arrangements of the basic work. Additionally, if the work falls within certain statutory parameters, the author may have the right to control the display and performance of the work. 17 U.S.C.A. § 106(4)(5).
The basic concepts surrounding copyright law are "expression" and "originality". Basically, the expression of an idea means that the idea has been expressed in a fixed or tangible format. This means that the expression may be seen by other people at a later point in time. The concept of originality in copyright law basically parallels that of novelty in patent law. Thus, the item to be copyrighted must have been created or originated by the author, and the mere copying of an item does not create a new copyright. There is a difference between originality and novelty. Copyright law only requires that the idea be original, not that it be novel. Thus, copyright protection can be extended to identical works and not just the first work.
This protection is limited only to the expression. A copyright will not protect the inventiveness of a new method or embodiment of an invention, nor will a copyright protect the use of a name as a trademark. Although registration of a copyright and use of a copyright notice on a product to be marketed is completely elective, we recommend applying for and obtaining copyright protection to protect your rights and to eliminate a potential defense to infringement.
2. Why would I register my work as a copyright?
Registration can have significant legal effects in an action for infringement. Copyright notice can prevent an infringer from pleading innocent infringement. 17 U.S.C.A. §§ 401(d), 402(d). Registration of a copyright can have a substantial effect in allowing for recovery of attorney fees and statutory damages in most registration infringements. Additionally, the United States Code requires that the copyright be registered with the Library of Congress before the author can bring a suit for copyright infringement. 17 U.S.C.A. §§ 411, 412. Registration after infringement has taken place may result in a lesser or no award of damages.
3. How much does it cost to register a copyright?
The costs associated with registering a copyright can vary depending on the nature of the work being protected. A typical cost for preparing and filing a registration application is $275.00 plus the filing fee for the Copyright Office
4. Can I register a copyright myself?
If there are no complex issues and if the prescribed procedures are carefully followed, yes. The forms are available at www.loc.gov/copyright or by calling (202) 707-3000.
5. How do I mark my work as copyrighted?
The proper notice includes the symbol showing the letter c with a circle around it (or the word "copyright"), the year of first publication of the work, and the name of the copyright owner. An example is:
© 2001 Name of Copyright Owner
Some foreign countries provide additional protection if the following phrase is included "All Rights Reserved."
6. How long is the process for the application and prosecution?
The typical time from filing to actual issuance of the Certificate of Registration is 3-12 months. However, if the application is in proper form, the registration will have an effective date commencing on the date of receipt of the application papers.
7. How long does a copyright last?
In most cases involving an individual author/owner, the copyright protection extends from the time that the expression is "fixed in a tangible medium" until 70 years after the death of the author. 17 U.S.C.A. § 302(a).
8. Are there any defenses against copyright infringement?
There are exceptions to the protection provided by copyright registration and use of a copyright notice. These exceptions include the "fair use" doctrine. "Fair use" of copyrighted material, which will prohibit copyright infringement, includes certain educational activities, literary and social criticism, parody and some first amendment activities, such as news reporting. Fair use is generally a very vague concept. An application of the fair use doctrine to overcome copyright protection generally depends on the weighing of competing policies and the specific facts before before the court.
Another defense is de minimis non curat lex (the law does not concern itself with trifles). When copying is de minimis the defendant incurs no liability. For example, the following were found to be de minimis uses: (1) copying a sentence and a half from a book of 142 pages, and (2) use of 30 characters out of 50 pages of a source code. Toulmin v. Rike-Kumler Company, 137 U.S.P.Q. 533 affirmed 316 F.2d 232 (6th circ. 1963); Vault Corp. v. Quaid Software Limited, 847 F.2d 255, 267 (5th Cir. 1988). However, using 300 words out of 200,000 words was not de minimis use. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). Thus, it is important to note that even when the quantitative component is small, a jury may find the qualitative component sufficient to allow the copying to be actionable.
9. I want to register the copyright in one of my paintings. I cannot put the painting on a photocopier. Does that mean that I have to send two paintings to the Copyright Office?
No. Only two copies of the best edition of the copyrightable work need be submitted. "Best edition" is a special term having many different definitions depending on the type of copyrightable work involved. The term "best edition" is further defined by the Copyright Office in Copyright Circular 7b, available on the internet at www.loc.gov/copyright/circs/. With respect to paintings, perhaps the preferred form for submitting copies is photographs, where the photographs are in color so as to reproduce the actual colors of the painting.
10. I am a software programmer and I work for a company as an employee where my job is to write software programs. Do I own the copyright in the software programs that I write for the company?
No. The software programs will most likely be considered a "work made for hire" and the company will own all of the copyright rights in the software programs. Under 17 U.S.C. §101 a "work made for hire" is defined as: "(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." Under 17 U.S.C. §102(b) if a work is considered to be a "work made for hire," "the employer or other person for whom the work was prepared is considered the author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." Assuming that there are no written instruments indicating otherwise, in this case since your job as an employee of the company is to write software programs, any software programs you write should be considered to be "works made for hire" and the company will own the copyright rights in these software programs.
11. I understand that in order to complete the application filing requirements, I need to submit a deposit copy of the work for which protection is sought. What if the work is code from a computer program that I consider a trade secret and don't want anyone to see or copy?
When a work is considered a trade secret, the U.S. Copyright Office allows the applicant to redact a portion of the work. The applicant is allowed to redact enough of the work to prevent it from being copied, but the applicant must leave enough visible so that the Examiner from the Copyright Office can satisfy himself or herself that the work is suitable for copyright protection. |
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