Copyrights protect original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived,reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Examples of the types of works of authorship subject to copyright protection include:
- 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.
- Architectural works
Subject to certain exceptions, the owner of a copyright has the exclusive rights to do and to authorize any of the following:
- To reproduce the copyrighted work in copies or phonorecords;
- To prepare derivative works based upon the copyrighted work;
- To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
HOW COPYRIGHT PROTECTION WORKS
Even though a functional product itself may not be eligible for copyright protection (functional products are protected with patents), many things commonly associated with a product or the sale of it frequently are copyrighted. For example, original software that is used in a product may be copyrighted. Original designs or artwork that may exist separately as a drawing on paper, but which are applied to the surface of a product, may be copyrighted. Original text, photographs, and illustrations used on or in product packaging, instructional, or promotional materials may be copyrighted. Original music and video used in product advertisements may be copyrighted.
It is not necessary to apply to the government in order to get copyrights. Copyrights come into existence the moment the original work is fixed in a tangible medium. Ownership of copyrights will initially vest in the “author” of the work. Unless it is a “work made for hire” the author will be the natural person who created the work. In the case of a “work made for hire” (which must satisfy specific conditions), the employer or other person for whom the work was prepared is considered the author, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the copyrights.
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. The authors of a joint work are co-owners of copyright in the work. This means that each owner is free to use the copyrights independently of the other owner(s), absent an agreement to the contrary.
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death. In the case of a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.
The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
A work may be registered with the United States copyright office. This is not required in order to have copyrights, but until a work is registered with copyright office you will not be able to sue anyone in federal court for infringing the copyrights. Registration within three months of publication, or before infringement, will also allow you to collect statutory damages and attorney fees from infringers. Accordingly, it is highly recommended to timely register eligible works.
Registration ordinarily consists of completing and filing a prescribed registration form (the particular form to be used depends on the type of work), paying a small fee, and depositing the required number of copies of the work with the Copyright Office. For normal processing, after about six months the copyright office will return a certificate of registration to you. This is what is required in order to file a lawsuit against an infringer.
If someone infringes your copyrights in a work, and you have registered the work with the copyright office, you can sue them for money damages and a court order prohibiting further infringement, and requiring corrective measures (e.g. the destruction of remaining infringing merchandise).
FREQUENTLY ASKED COPYRIGHT QUESTIONS
Question: How do I establish copyrights in my work?
If your work is eligible for copyright protection, then copyrights in the work will be established from the moment of creation.
Question: What works are eligible for copyright protection?
Almost any original work of authorship that is fixed in a tangible medium is eligible for copyright protection. This would include literary works, musical works, dramatic works, choreographies, pictures, graphics, sculptures, audiovisual works, architectural works, etc. . . A work of authoriship is fixed in a tangible medium when it is incorporated into something (e.g. written on a piece of paper, or recorded on a DVD) from which it can be communicated, even if such communication would require the use of a machine for communication (e.g. a DVD player).
Question: Do copyrights protect inventions?
No. Inventions are protected by patents. However, inventions may incorporate certain things which themselves are eligible for copyright protection. For example, computer programs which are part of an invention may be eligible for copyright protection.
Question: If I write my idea down on a piece of paper does that mean nobody else can use my idea?
No. Copyrights do not protect ideas – just the particular expression of an idea. So, if you wrote a story about aliens invading the planet earth, copyrights could help you stop others from copying your story. However, you could not stop other people from writing their own stories based upon the “idea” of aliens invading the earth.
Question: Do copyrights protect my brand names and logos?
Copyrights can be used to protect brands or logos which are considered “original works of authorship”. In general, copyrights do not protect simple titles, names, common phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, or coloring. So brand names, slogans, etc. . . which might be eligible for protection under the trademark or unfair competition laws, would need to have some minimal level of original creativity to also qualify for copyright protection. Original artistic logos, such as representations of cartoon characters, do qualify for copyright protection.
Question: Do I need to apply to the government in order to get copyrights?
No, but there are many good reasons to register your work with the United States Copyright Office. Timely registration of your work with the United States Copyright Office may entitle you to statutory damages and attorney fees should somebody infringe your copyrights in the registered work. Having these remedies available can make a big difference in terms of effective enforcement against infringers. Also, without a registration you will be unable to prosecute a lawsuit against a copyright infringer. Registration will also facilitate stopping importations of infringing goods by recording the registration with U.S. customs.
Question: Is it expensive to register my work with the Copyright Office?
Copyright registration is relatively inexpensive.
Question: Do I need an attorney to register my work?
You are not required to use an attorney to register a work with the Copyright Office. However, in some cases registration can be complicated, so you may wish to consult with an attorney.
Question: When should I register my work?
In general, to maximize the benefits from registration, the work should be registered with the Copyright Office within three months after publication. However, you can register a work at any time during the life of the copyright, so don’t forgo registration simply because more than three months has passed. Registration after the three month period, but before any infringement of the work, could still provide you with the valuable remedies of statutory damages and attorney fees, and facilitate the filing of lawsuits against infringers.
Question: When is a work considered published?
For there to be publication there must first be multiple copies of a work in existence. Thus, an artist who paints a single oil painting and sells it to a collector has not “published” the oil painting because there is only one of them. However, if copies of the painting are made, then publication will occur when any copy is distributed to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display also constitutes publication. A distribution to “the public” is generally considered to happen when any person receives a copy without any restrictions with respect to disclosure of the contents.
Question: How long do copyrights last?
For works created after 1977 that are not works made for hire the life of the copyright lasts the life of the author plus 70 years. So if you write a novel when you are 40 years old, and live to 100 years old, the copyrights in the novel will last 130 years [(100-40) + 70].
For works created after 1977 which are works made for hire, the copyrights last the shorter of 95 years from the date of publication, or 120 years from the date of creation. For works created before 1977 it is best to consult an attorney.
Question: What is a work for hire?
The U.S. copyright law defines a “work made for hire” as:
- a work prepared by an employee within the scope of his or her employment; OR
- a work specially ordered or commissioned for use as. . .
- a contribution to a collective work;
- a part of a motion picture or other audiovisual work;
- a translation;
- a supplementary work;
- a compilation;
- an instructional text;
- a test;
- answer material for a test; or
- an atlas. . .
|AND the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Work For Hire - Example 1
If Cartoon Co. employs Adam Artist to draw cartoon characters for the compay’s cartoons, then the characters Adam draws as part of his job are works made for hire. Cartoon Co. would be considered the “author” of the works, and copyright protection on such works made for hire would last the shorter of 95 years from the date of publication, or 120 years from the date of creation.
On the other hand if Adam Artist has a job as a cashier clerk at a local gas station, and on his own time draws cartoon characters, then Adam would be considered the author of the works, which would not be works made for hire, and copyright protection would last from the date of creation for the rest of Adam’s life, plus 70 years.
Work For Hire - Example 2
If Higher Learning Co. commissioned Professor Paul who works at the local university to write an instructional text for them, this would be considered a work made for hire, so long as Higher Learning Co. and Professor Paul agreed in a written instrument signed by them that the instructional text would be a work for hire.
Question: Why Is It Important If It Is A Work Made For Hire?
It is important because of who will be considered the owner of the copyrights. If it is not a work made for hire, then ownership of all copyrights will initially vest with the individual person(s) who created the work – as opposed to whoever the work might be being made for.
So, if you hire an independent artist to create artwork for you (e.g. your company logo), if the artwork isn’t a work made for hire, then the artist will be the “author” and the one who initially owns. For you to own them, all of the copyrights will need to be assigned in writing to you. Also because they are the author, the term of copyright protection will be tied to the duration of their life, and even if they assign the rights to you, they may get them back after a certain number of years (no matter what your agreement says). This may not be what you had in mind when hiring the artist to do the work.
Remember, even with an agreement saying that a work created by an independent contractor (as opposed to an employee) is supposed to be a work made for hire, it won’t be if it doesn’t fit into one of the limited specified categories. Therefore, if you want to be sure that you or your business is considered the author, the person creating the work should be treated as an employee, with the work being created within the scope of their employment for you.