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.

Copyright Ownership

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):

  1. 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.)
  2. Prepare derivative works based upon the work; (This allows the Black Eyes Peas to remix one song ten times.)
  3. 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.)
  4. Perform and display the work publicly, for visual works; and
  5. 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 work.")

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 copyright.

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 protected.)

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.

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