What is a Copyright?
Copyright is a group of rights and privileges to do or authorize others
to do certain things. Copyright is created and owned by the creator of
the original work when a work in fixed in a tangible form. You have copyright
rights in your journal entries. You have copyright rights in your blog
entries. No publication or registration or other action in the Copyright
Office is required to secure copyright in the U.S.
A copyright protects works of authorship, such as writings, music, works
of art and that have been tangibly expressed. Copyright does not protect
ideas, procedures, methods, systems, processes, concepts, principles,
discoveries or compilations of information with no original material,
such as tables taken from publicly available sources. You do not have
copyright in the brilliant comeback you made in an argument with your
spouse because it's not fixed in a tangible medium. You do not have
copyright in your reading aloud of the stock tables from the newspaper,
unless you are also adding commentary and it is being recorded.
If a work is created in the course of normal employment, it is probably
a "work for hire" and the owner of the copyright is the employer.
In the case of a commissioned work, the group or individual who requested
the commission generally owns the work. Co-creators are co-owners of the
copyright, unless there is an agreement to the contrary. Copyright of
an article published in a magazine initially is with the author of the
article and is separate from copyright in the magazine itself.
Transfer of all of a copyright owner's rights must be in writing. Transfer
of part of a copyright owner's rights or transfer of a right on a
nonexclusive basis does not need to be in writing (but writing is highly
recommended). Copyrights are personal property and subject to state laws
for inheritance or transfer. Although recording the transfer in the Copyright
Office is not required, it does provide certain legal advantages and may
be required when third parties are involved. Transfer of copyrights may
be terminated by law, but in very rare and fact specific situations.
How Long Does Copyright Last?
In the U.S., copyright lasts for as many as 70 years after the life of
the author or creator, or 95 years from the date of publication or 120
years from the date of creation of works for hire. Different rules apply
for works created and published before 1978. The term of copyright for
anything created and/or published before 1978 has to be considered on
a case by case basis. For example, for a time renewal of copyrights was
required and had some advantages. However, the renewal provisions do not
apply to works created after 1978.
What Rights Does a Copyright Owner Possess?
Some of the rights that copyright provides are the right to (or authorize
someone else to):
- Reproduce the work in copies or phonorecords; (a phonorecord is the physical
object and includes cassette tapes, CDs, and vinyl disks as well as other formats.)
- Prepare derivative works based upon the work; (This allows the Black Eyes
Peas to remix one song ten times.)
- Distribute copies of the work to the public by sale, rental, lease, or
lending or otherwise; (Ownership of a copy does not give any rights except
the right to transfer ownership of that copy.)
- Perform and display the work publicly, for visual works; and
- Perform a sound recording publicly. (Sound recordings are "works that
result from the fixation of a series of musical, spoken, or other sounds,
but not including the sounds accompanying a motion picture or other audiovisual
It is illegal for anyone to violate any of the rights provided by the copyright
law to the owner of copyright. Note that there are specific limitations
and exceptions from copyright protection. One of the biggest exceptions
is the doctrine of "fair use." Another limitation is the requirement
for compulsory licensing.
How Is Copyright Protected?
In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA),
codified in part in Section 1201 of Title 17 of the U.S. Code (Section
1201). The DMCA makes it illegal to defeat access controls used to protect
copyrighted works, including computer programs. This is the law that specifically
makes defeating the protections on a game on your phone to copy the game
to a buddy's phone illegal. Every three years, next in 2015, the Librarian
of Congress, working with the Register of Copyrights, may grant exemptions
to defeat certain access controls under certain circumstances for a three
year period if users are "adversely affected in their ability to
make noninfringing uses", such as the fair use. What all this means
for you is you probably cannot legally defeat the DMCA copying controls
on your DVD's but every three years the Library of Congress will reconsider
the issue for DVDs and other technologies.
Registration is not required to have copyright protection in the U.S. but
it is required to file a lawsuit and seek certain remedies, such as statutory
damages (as opposed to actual damages that must be proved) and attorney's
fees. Registration allows the owner of the copyright to record the registration
with the U.S. Customs Service and request help stopping imports of infringing
copies. Copyright registration creates a public record of the claim of
How Can I Apply for a Copyright?
A Federal application to register copyright with the U.S. Copyright Office
requires a completed application form, a nonrefundable filing fee, and
a copy of the work being registered and "deposited" with the
Copyright Office. Copyright registration is relatively inexpensive because
copyright applications are not subject to the level of scrutiny of patent
and trademark applications.
Publication is no longer the key to obtaining copyright but it remains
important because publication effects the exceptions to copyright, such
as fair use and compulsory license. The date of publication also sets
the duration of protection for anonymous works and works for hire. The
sale or leasing of phonorecords or copies constitutes publication of the
recorded work. If a material object does not change hands, generally there
is not publication. This may change with emerging technologies such as MP3.
Do I Need a Copyright Notice?
Although a copyright notice is no longer required under U.S. law, it is
recommended because it informs the public that the work is protected by
copyright, identifies the copyright owner, and shows the year of first
publication. To quote the Copyright Office, "The copyright notice
should be affixed to copies or phonorecords in such a way as to 'give
reasonable notice of the claim of copyright.'" Proper copyright
notice removes or limits the defense of innocent infringement. (Innocent
infringement occurs when the infringer did not realize that the work was
Copyright notice should generally contain three elements (1) the symbol
©; (2) the year of publication and (3) the name of the copyright
owner. A sample would be ©
2011 John Doe. You should also mark copies of unpublished works that leave your control
this way, using the year of creation.
International Copyright Protection
There is no such thing as an "international copyright" giving
copyright protection worldwide. Protection against unauthorized use in
a particular country depends, basically, on the national laws of that
country. Most countries do offer protection to foreign works under certain
conditions. Works published in other countries are eligible for copyright
protection in the United States provided certain conditions are met. You
cannot necessarily count on the absence of a copyright notice to decide
whether a work is in the public domain, because copyright notices are
optional in most countries.
More than the other areas of IP law, copyright is very fact sensitive.
Is it legal to make a copy of a recording? It depends. What recording is it? How old is it? Why are you copying it?
Can I photocopy a book or an article? It depends. Is it out of print? When was it written? Where was it written?
Why are you copying it? Do you have a license? Somewhere amid the multitude
of questions and facts is the answer you need.
Call us. Howard IP Law Group, P.C. can help you protect works you have
authored or acquired. We can work through the facts and questions with
you and point out pitfalls, saving you time, money and headaches. Together
we can craft an approach tailored to your situation and plans.
Please note that the content of this page should only be used as a general
reference, and is not a substitute for legal advice. It is recommended
that you seek the assistance of legal counsel.