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Copyright Basics

Date: Dec 03, 1997


What Is A Copyright?

Copyright is a form of protection provided by the Copyright Act of 1976 (17 U.S.C. § 101 et seq.) to the authors of "original works of authorship,"including literary, dramatic, musical, artistic, and certain other works, like software.To merit copyright protection, a work must be original and "fixed in a tangiblemedium." The originality standard is not stringent, however; a work that isindependently created will generally be sufficiently "original" to meritcopyright protection, provided the author's effort is something more than trivial orinsignificant. A work is fixed when it can be perceived, reproduced or otherwisecommunicated for an extended period of time. Copyright protection subsists from the time the work is fixed in a tangible medium and registration is not required. Examples of works that are fixed include a sculpture, a novel written in manuscript form, or a work on an audiotape, record, or compact disc.

Things That Cannot Be Copyrighted

Certain types of materials are not entitled to copyright protection, regardless ofwhether they are original and are fixed in a tangible form. Copyright protection is notavailable to any idea, procedure, process, method of operation, concept, principle, ordiscovery, regardless of the form in which it is described, explained, or illustrated. Inaddition, titles, names, short phrases, and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring, or mere listings of ingredients or contents are not eligible for copyright protection. (Please note that some of these items can be protected as trademarks, and refer to "TrademarkUse and Registration.")

Copyright Registration

Although registration is not necessary to obtain a copyright in a work, as thecopyright is secured upon "creation," it is strongly recommend that ownersregister the copyrights in all works of any financial significance with the United StatesCopyright Office. (A work is "created" when it is fixed in a copy for the firsttime.) Registering the copyright in a work is permissive, but it does provide additionalprotection against infringement. In addition, copyright registration provides primafacie evidence of ownership of a valid copyright and is necessary to file aninfringement claim. Finally, a registration entitles a copyright owner to seek statutorydamages and attorney's fees in court actions. Otherwise, only an award of actual damages and/or profits is available to the copyright owner. Registration may be made at any time within the life of the copyright.

Ownership Of Copyright

Ownership of copyright in a work vests initially in "the author or authors of thework." If there is more than one author, the authors will be considered co-owners ofthe copyright. A work prepared by two or more authors with the intention that theircontributions be merged is called a "joint work."

Works Made For Hire

Ownership of copyright generally vests in the author at the time the work is created, but there are certain exceptions to this rule. One such instance is a 'work made for hire." This is a work prepared by an employee within the scope of the employment relationship (where the employer automatically is the copyright holder), or is a specially ordered work from a third party, provided the parties expressly agree in a written instrument signed by them that the work will be considered a work made for hire. Absent such an agreement, the creator, and not the commissioning party, owns the copyright.(Please refer to "So You Need a Consultant" for moretips on protecting your interests.)

Rights Of The Copyright Owner

Section 106 of the Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to (1) reproduce the copyrighted work, (2) prepare derivative works based upon the copyrighted work, (3) distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending, (4) perform the copyrighted work publicly (this right applies to literary, musical, dramatic, pictorial, graphic and related works), and (5) display the copyrighted work publicly. It is illegal for anyone to violate any of these rights. The Copyright Act establishes certain limitations on these ownership rights, however.

Fair Use

One major limitation on the exclusive rights of copyright owners is the doctrine offair use. Under the fair use doctrine, there are certain times when a person can copy the copyrighted work of another without permission and it will not be an infringement. This includes copying the work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. There are four factors used to determine if a particular use is a fair use. These are (1) the purpose and character of the use (whether the use is of a commercial nature or is for nonprofit purposes), (2) the nature of the copyrighted work (some works are more deserving of copyright protection than others (i.e., fictional works more deserving than factual ones)), (3) the amount and substantiality of the portion used, and (4) the effect on the market for or value of the copyrighted work (typically, the most important factor). Just because the entity copying the work is not-for-profit, or is not selling the copied material, however, does not automatically make the copying a "fair use;" and it is advisable to consult with experts on this score.

Copyright Notice

Use of the copyright notice 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. Furthermore, in the event the work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim "innocent infringement" --that is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.)

The copyright notice should contain the following three elements: (1) the symbol ©, or the work "Copyright," or the abbreviation "Copr.", (2) the year of first "publication" of the work ("publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, orby rental, lease, or lending), and (3) the name of the copyright owner. Other verbiage may also be included. A typical notice, for example, is as follows: "© 1997 Keller and Heckman L.L.P. All rights reserved." The notice should be placed in a conspicuous location on the work.

For works first published on and after March 1, 1989, use of the copyright notice is optional, though highly recommended. Before March 1, 1989, the use of the notice was mandatory on all published works, and any work first published before that date must bear a notice or risk loss of copyright protection.

Duration Of A Copyright

The duration of copyright protection varies, depending on the date the work was created and the type of work. In general, the rules are as follows:

    • Works originally created on or after January 1, 1978. These works are protected from the moment of creation, and are ordinarily given a term enduring for the author's life, plus an additional 50 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 term lasts for 50 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works, the duration of copyright will be 75 years from publication or 100 years from creation, whichever is shorter.
    • Works originally created before January 1, 1978, but not published or registered by that date. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978. In no case, will the term of the copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2027.
    • Works originally created and published or registered before January 1, 1978. Under the law in effect before 1978, copyright was secured either on the date a work was published or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The current copyright law has extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, making these works eligible for a total term of protection of 75 years.

Enforcement

As with other intellectual property, owners should monitor use of their copyrightedworks by licensees and others, and take action against those parties who use the works in an unauthorized manner. As a practical matter, the value of most copyrighted works rests in its timeliness; for others, however (such as certain videos, compilations of conference proceedings, etc.), the works will likely have longer term value. Thus, a copyright protection program should focus on works with long-term value.

The typical tools of a copyright protection program include (1) proper use of thecopyright notice denoting a claim of rights in the work; (2) registration of importantworks; (3) use of license agreements and permission forms to authorize use by thirdparties, including requiring use of the copyright notice and a statement such as:"Reprinting with the permission of the copyright holder"; (4) cease and desistletters; (5) settlement agreements; and (6) if necessary, litigation where seriousinfringement has occurred. Again, a work must be registered before an infringement suit may be filed, and registration is needed for the copyright owner to be eligible to receive attorneys fees.

For more information, please contact Sheila A. Millar at (202) 434-4143, millar@khlaw.com.