Attorneys

John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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Copyright Information

Warning: This Web page is not legal advice to anyone, including you. Your reading this information does not form an attorney-client relationship with this law firm. The following information is general and may not apply to your situation. Also, this page provides only a brief, high-level and partial summary of an extensive body of U.S. copyright law. This page could become out-of-date as trademark law evolves. Please do not email us with questions about the content of this page. If you are interested in contacting us about possible legal representation, please call us.

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What Is a Copyright?

A copyright is a bundle of exclusive rights given to the author of an original, creative work.

What Can Be a Copyrightable Work? The federal Copyright Act provides this nonexclusive list of what may be copyrighted: “literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.” Compilations of copyrightable works, and works based upon preexisting works also are copyrightable in some circumstances.

Examples of potentially copyrightable works are software, Web site content, books and articles, music, movies, architectural drawings, plays, artwork, and collections of individual copyrightable works, such as a collection of short stories.

Exclusive Rights of Copyright Owners. A copyright creates these exclusive rights for the copyright owner regarding a creative work: to copy, to modify, to distribute, to perform, to display publicly, and to transmit (in the case of digital audio works). Generally, one cannot create a copyrightable work that adds to someone else’s copyrighted work (the additional layer is called a “derivative work”) without the permission of the owner of the base copyright.

Ideas and Non-Expressive Elements are Not Protected. Copyright protects only original expressions. Copyright laws protect only the particular expression of an idea and not the idea itself. Thus borrowing an idea from a copyrighted work is not copyright infringement if, generally speaking, the particular expression of that idea isn’t also copied. Overall, to quote the Copyright Act, copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.”

For example, if you wrote a book describing how to build a better mousetrap, your prose would be protected by copyright but the idea for the better mousetrap would not be protected. To protect that idea, you would have to explore patent protection.

Also, to be copyrightable, a work must possess a minimal degree of creativity. Thus, for example, raw data isn’t copyrightable because it isn’t an expression; it’s just data. Yet, one might own a copyright on an original and expressive way of selecting and arranging data, although that copyright would not protect the data itself from copying by others; it would protect only the selection and arrangement of the data.

To be Copyrighted, Work Must be Fixed in Tangible Form. The Copyright Act provides protection to original works of authorship fixed in a tangible form of expression. A work is fixed in a tangible form of expression if one or more of the human senses may perceive it directly or indirectly with the aid of a machine or device.

How Are Copyright Rights Created?

Common Law Copyright. As soon as an expression is translated into a tangible form, such as a drawing or recording, it automatically enjoys common law copyright protection, whether or not it has been published or registered. No further steps are necessary to ensure the copyright’s existence. If I doodle on a piece of paper, I own a common law copyright to my doodle as soon as I finish it.

Copyright Registration – Benefits. A copyright owner can register its copyright with the federal Copyright Office. Doing so provides several important advantages over common law copyrights:

  • Prerequisite to Litigation. Registration is a prerequisite to filing a lawsuit in federal court against an infringer of a work created within the United States. Registration takes several months unless you pay substantial fees for expedited service at the Copyright Office.
  • Access to Statutory Damages. The copyright owner cannot recover statutory damagesfor infringement of a work that occurred before registration, unless registration occurs within 90 days of the first publication of that work. The owner still will have access to actual damages plus the infringer’s profits, but those damages may be difficult to calculate with certainty and might be zero. The Copyright Act empowers courts to award statutory damages up to $30,000 per work infringed, and up to $150,000 per work infringed in the case of willful infringement.
  • Attorneys’ Fees. Generally, a copyright owner is not eligible to recover attorneys’ fees unless the work was registered at the time of the infringement, unless registration occurs within 90 days of the first publication of that work.
  • Prima Facie Proof of Validity. A certificate of copyright registered before or within five years after first publication is prima facie evidence of the validity of the copyright.
  • Block Importation. Registration allows the author, under certain circumstances, to request the U.S. Customs Service to block the importation of infringing works.
  • Summary – Advance Registration Often is the Difference Maker. Often, a prospective plaintiff will make its decision on whether to sue over copyright infringement based upon whether that prospective plaintiff might recover statutory damages and attorneys’ fees, because, without such potential remedies, the plaintiff frequently will spend more in attorneys’ fees litigating the case than can be recovered.

A layman can try to do his own copyright registration, but we advise against it due to pitfalls in registration process. (John Farmer wrote a column published on December 27, 2004, on this issue.)

Using a Copyright Notice

For works created on or after March 1, 1989, a copyright notice is no longer mandatory for published works. Typically, however, a copyright notice should be affixed to the work to put the world on notice as to copyright ownership. Doing so may defeat a claim by a defendant that infringement (such as unauthorized copying) was innocent. Defendants usually pay lower statutory damages if they prove that their infringements were committed innocently.

Typically, the symbol ©, the word “Copyright,” or the abbreviation “Copr.” is affixed to a copyrighted work along with the year of first publication and the name of the owner of the copyright (e.g., © 2005 Leading-Edge Law Group, PLC). To protect rights in certain South American countries, you can add “All rights reserved.”

The notice should be placed in a form and in a position that gives reasonable notice of the claim of copyright. The Copyright Act and regulations issued by the Copyright Office provide some rules and guidance on where the copyright notice for particular kinds of works must be placed.

Duration of Copyright Ownership

For works created after January 1, 1978, generally a copyright lasts for 70 years following the death of the author. For anonymous works, works published under pseudonyms, and works made for hire, the copyright lasts for 95 years from the year of its first publication, or 120 years from its creation, whichever comes first.

Rules for Who Owns Copyrights

This section only summaries an extensive and intricate area of the law. Yet, misunderstanding over who owns copyrights is one of the most common reasons for the failure of business ventures built upon a new copyrightable product.

Employers Versus Employees. An employer generally owns the copyright to a work created by an employee acting within the scope of his employment. An employer usually owns the copyright to a work created by an employee on employer time using employer resources.

Sometimes, it’s not immediately obvious whether a worker is an employee or a contractor. Courts typically answer this as a factual question on a case-by-case basis by referring to common law agency factors (e.g., control exhibited over “employee” by employer; source of tools for work; location of work, duration of parties’ relationship, worker’s discretion in means and methods of work; the provision of benefits and the tax treatment of the worker).

(John Farmer wrote a column published on April 26, 2004, on the common fallout from failing to understand who owns what in the copyright realm.)

Independent Contractors. Generally, hiring parties do not own the copyright to materials created by independent contractors, even if the contractor creates something entirely new for the hiring party and even after the hiring party pays in full for the contractor’s work. Folks who hire advertising agencies and companies who use independent contractor computer programmers often learn this lesson the hard way. Usually, the hiring party needs to get a written copyright assignment from the contractor in order to secure copyright ownership.

Copyright Infringement

Recall the list of exclusive rights of the copyright owner regarding a work: to copy, to modify, to distribute, to perform, to display publicly, and to transmit (in the case of digital audio works). The exercise of any of these rights by someone without a license from the copyright owner may constitute infringement. In the case of unauthorized copying (the most common form of infringement), to prove infringement, a copyright owner must prove that the work has been copied, or that the infringer had access to the work and that the two works have “substantial similarity” in their copyrightable elements.

Some exceptions exist to this rule. For example, it is possible for two substantially similar works to be independently created. If they are independently created, then there is no infringement. Copyright does not have a “first to create” rule like the “first to invent” rule in U.S. patent law.

Fair Use. Also, the “fair use doctrine” permits some exercise of the exclusive rights of a copyright owner (such as copying part of a work) without the permission of the copyright owner in some circumstances, such as for the purposes of criticism, news reporting, teaching, scholarship, or research. Deciding whether a use of a copyrighted work is a fair use usually requires a multi-factor, case-by-case analysis.

Remedies for Copyright Infringement

Federal courts have exclusive jurisdiction over copyright infringement claims. A copyright infringer potentially is subject to both civil and criminal penalties. You must register your copyright before filing a copyright infringement lawsuit in federal court.

Available remedies in a civil case include:

  • injunctive relief against future infringement;
  • impoundment and/or destruction of infringing reproductions;
  • recovery of statutory damages OR the profits of the copyright infringer plus non-duplicative actual damages of the copyright owner (the plaintiff eventually will have to elect between the two remedies during the litigation);
  • attorneys’ fees in some cases.
  • Recall that a copyright owner may recover statutory damages and attorneys’ fees only if the owner registered its copyright before the infringement began or within 90 days after the first publication of the work at issue.

Strategy – Possible Patent and Copyright Protection

Sometimes patent and copyright protection can be obtained for aspects of the same thing, if it has both functional and expressive components. A patent and a copyright are not mutually exclusive. A patent might protect the useful invention while a copyright protects the expression in the particular way the invention is designed. For example, sometimes software can be both copyrighted and patented.

Our Copyright Services

Regarding copyrights, we can assist you with:

  • Counseling regarding copyright law.
  • Registration of works with the U.S. Copyright Office.
  • Securing copyright ownership vis-à-vis employees and independent contractors.
  • Licensing and assignment agreements (such as software licensing).
  • Counseling regarding open source software issues (John Farmer wrote a column published on May 24, 2004, on this issue).
  • Related Internet agreements (such as Web site development agreements).
  • Protection of Web site content (John Farmer wrote columns published on January 26, 2004, and January 27, 2003 , on this issue.
  • Unsolicited submission policies.
  • Infringement litigation and appellate matters.

Copyright Registration – What’s It Going To Cost?

In the grand scheme of legal expenses, securing copyright registration usually is less expensive than trademark registration or patenting. This fact doesn’t mean you should strive only for copyright and shun trademark and patent. Copyright, trademark and patent each are distinct intellectual property rights; they protect different interests and have differing relative strengths and weaknesses. Sometimes they can be used together, and sometimes they conflict with each other. Some have called copyright a “poor man’s patent,” but that’s an incorrect and dangerous characterization.

Filing Fees. Usually, the filing fee for seeking U.S. copyright registration is $45 per work registered. Sometimes we must file more than one registration application to provide complete coverage for the whole thing to be registered for copyright. Also, a copyright registration protects only the work as it exists on the date of registration. If the work will evolve over time, we usually recommend setting up a regular schedule of filing copyright registration applications for that work in order to protect new material.

Legal Fees. This firm performs copyright registration services on an hourly basis. We’d like to offer flat fees here, but there’s a tremendous variance in how much time it takes to gather the information needed to prepare the necessary copyright registration application(s). Also, once we get into issues such as identifying all of the authors of the work or identifying previous works upon which the present work was built, we often discover impediments to registration that must be fixed, if possible, before meaningful copyright registration can be achieved.

Nevertheless, for a simple copyright registration for a single work with no complicating factors, our legal fee usually won’t exceed $500 for doing the registration work itself (i.e. not including time we spend counseling you on copyright issues). On the other hand, if the project unearths an array of authors, some of whom may not have assigned copyright ownership to you, or if it unearths a train of unregistered prior versions of the work that were published, then you likely will spend more than $1000 in legal fees (perhaps much more), if your copyright situation can be salvaged.

Yet, once we have established a baseline registration for a work that will evolve over time, we often can set a flat legal fee for preparing and filing update copyright registrations in the future at regular intervals.