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Copyright Primer

©2009 Dennis Donahue

What is a copyright?

A copyright protects “original works of authorship” that are fixed in a tangible form of expression. The categories of works include:

  • Literary Works–Pictorial, Graphic, & Sculptural Works
  • Musical Works & Lyrics–Movies & Audiovisual Works
  • Dramatic Works& Accompanying Music–Recordings
  • Pantomime & Choreographic Works–Architectural Works

Despite offering a generally broad area of protection, the copyright statutes do not offer protection for items such as titles, names, short phrases, slogans, ideas, procedures, methods, systems, processes, concepts, principles, discoveries and inventions. Instead, other areas of intellectual property law, such as patents and trademarks, may apply to such non-copyrightable items.

The copyright laws do offer many exclusive rights and protections for the copyrighted work. Not only does a copyright protect original works from being copied during the life of the copyright, it also offers exclusive rights to the owners of the copyrighted material such as the right to distribute, publicly perform and display the work, and prepare derivative works based on the copyrighted work.

Two of the main purposes of a copyright are to protect the commercial value of an original work and to protect the author’s right to control how that work is used. Copyright infringement occurs when a copyrighted work is reproduced, performed, distributed, publicly displayed, or made into a derivative work without the permission of the copyright owner. The copyright owner is entitled to certain remedies. As such, the owner of an enforceable copyright has a great deal of power with respect to how the work is shown to the public.

How can I get copyright for my work?

A copyright is secured automatically when the work is fixed in a tangible form such as a printed document, picture, or recording. Copyrights are generally owned by the work’s author. However, if the work was created by an employee within the scope of employment, the work will be considered “a work made for hire”, giving ownership of the copyright to the employer. A work specially ordered or commissioned may also be characterized as a work made for hire. The law on the work for hire doctrine is rather complex, and it is best to select an attorney who is familiar with the intricacies of copyright law. For more information on the work for hire doctrine, readers can request the article “Intellectual Property and Confidentiality Agreements for Employees and Independent Contractors” by Dennis Donahue.

Why should I register my copyright?

Even though copyright protection is secured automatically without any requirement to register with the Copyright Office, there are many advantages to registering copyrights. Registration may be made at any time within the life of the copyright, but there are incentives to register the work and file early:

  • Registration establishes a public record of the copyright claim.
  • Owners of registered copyrights can sue for infringement of their copyrights. Without registering the copyright, the copyright holder cannot sue to enforce the copyright.
  • When registration is made before or within 5 years of publication, it establishes prima facie evidence in court that the copyright is valid.
  • When registration is made before or within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

In general, a copyright notice is used to inform the world of copyright ownership. The notice is not required for copyright protection, but it is recommended practice to place the notice on all copies of the work. A properly affixed copyright notice can disprove an “innocent infringer defense” in an infringement action in court. The copyright notice generally includes (1) the copyright symbol ©; (2) the year of creation or first publication; and (3) the name of the copyright owner such as used at the beginning of this document.

How long does a copyright last?

The term of the copyright protection for a work created on or after January 1, 1978 lasts for the author’s life plus an additional 70 years after the authorís death. For works made by two or more authors that did not work for hire, the term lasts for 70 years after the last surviving author dies. For works made for hire and for anonymous and pseudonymous works, the duration of the copyright will be 95 years from publication or 120 years from creation, whichever is shorter. Works created before January 1, 1978 are analyzed under a different standard and the term of the copyright depends upon certain factors such as when the work was published.




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