What is a copyright?

What is a Copyright?

A copyright is a form of protection provided to authors of “original works of authorship,” including literary, dramatic, musical, artistic, architectural and certain other types of intellectual works.

What does copyright protection provide?

The United States copyright law generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following: reproduce the copyrighted work; prepare derivative works; distribute copies by sale, rental or lease; and perform or display the copyrighted work publicly. It is illegal for anyone to violate any of the rights provided to the owner of a copyright, subject to certain limitations such as “fair use” and, for some works, “compulsory license.”

Copyright protection exists for “original works of authorship” from the time that a work is first fixed in a tangible form of expression. The fixation does not have to be directly perceptible, so long as it may be communicated with the aid of a machine or device. There is no requirement that the work be new or non-obvious, only that it be original.

Among those works which are copyrightable are: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; computer programs and architectural works.
Materials which are not generally copyrightable include: works that have not been fixed in tangible form of expression; titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listings of ingredients or contents; ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; works consisting entirely of information that is common property and containing no original authorship. (Note: patent or trademark protection may be available for some of these.)

How is copyright protection obtained?

Copyright protection is secured automatically when a work is created (i.e., fixed in a copy or recording for the first time). It is an incident of the process of authorship. Publication is no longer a requirement for statutory copyright ­protection, but in order to enforce a copyright, the work must be registered in the U.S. Copyright Office.

What is a notice of copyright?

When a work is published under the authority of the copyright owner, a notice of copyright may be placed on all publicly distributed copies or recordings. Under the Bern Convention, a copyright notice is no longer required in the United States for works first published on or after March 1, 1989. However, it is recommended that a copyright notice be placed on all copies of a copyrighted work. One advantage in using a copyright notice is that it prevents a party who is sued for infringement from asserting a defense of innocent infringement. A notice is still required on any works published before March of 1989.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from or registration with the Copyright Office. The copyright notice generally includes three elements:

• The symbol © (the letter “C” in a circle), and/or the word “Copyright,” or the abbreviation “Copr.” (But records, tapes or CD’s of sound recordings must use the symbol (the letter “P” in a circle));
• The year date of first publication; and
• The name or abbreviation of the name of the copyright owner.

The year date may be omitted for certain types of works. The notice should be positioned so as to give reasonable notice, with all three elements of the notice appearing together.

How is copyright ownership determined?

The copyright in a work of authorship immediately becomes the property of the author or artist who created it, and only the author or those deriving rights from the author can rightfully claim copyright. Co-authors are generally considered co-owners of the copyright.

In the case of a work made for hire, the employer and not the employee is presumptively considered the author. A “work made for hire” is: (1) a work prepared by an employee acting within the ­scope of employment; or (2) a work (but only certain types of works) specially ordered or commissioned according to a written agreement that designates the work as one made for hire.

Any or all of the exclusive rights, or any subdivision of those rights, of the copyright owner may be transferred, but the voluntary transfer of exclusive rights is generally not valid unless that transfer is in writing and signed by the owner of the rights conveyed. Transfer of a right on a nonexclusive basis does not require a written agreement.

Present copyright law generally permits the termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits.

What is the duration of a copyright?

For works by individual authors, the term of copyright is the life of the author, plus 70 years after the author’s death. The term of copyright in works for hire or corporate-owned works is 95 years from the first publication, or 120 years from creation, whichever is longer.

What is copyright registration?

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. Registration is not normally a condition of copyright protection. Registration does, however, offer significant benefits, among which are:

• registration establishes a public record of the copyright claim;
• registration of a U.S. work is necessary before any infringement suits may be brought in the courts;
• if made before or within five years of publication, registration establishes a presumption in court as to the validity of the copyright and of the facts stated in the certificate; and
• if registration is made within three months after publication of the work and prior to infringement, statutory damages and attorney’s fees are available to the copyright owner in court actions. Otherwise, the copyright owner may seek only actual damages and profits.

Registration may be made at any time within the life of the copyright. Usually, two copies of the work must accompany the application.

What are typical fees for copyright services?
For filing a copyright application with the United States Copyright Office (for each work, applicable Registration fees not included):

• Attorney’s fee…………………………..$300 (estimate)
• Copyright Office filing fee…………$45
• Special handling filing fee…………$600

The information included herein is for informational purposes only. Mr. Milbrath does not intend to create an attorney-client relationship with you by providing this information.