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Practice Areas > Copyrights

Practice Areas/Services: Copyrights 

WHAT DOES COPYRIGHT PROTECT? (top)

Copyright protects original works of authorship. This includes literary, dramatic, musical and other artistic works. Copyright DOES NOT extend to titles, names, or phrases, ideas, systems, processes and information. In other words, a work of authorship able to be fixed in a tangible medium is subject to copyright protection provided there is some element of creativity to the work to be protected.

Copyright protection gives the owner of a copyright the right to reproduce a work, prepare derivative works based thereon, distribute the copyrighted work, perform any copyrighted work publicly, and display the copyrighted work publicly.

COPYRIGHT? TRADEMARK? OR PATENT?  (top)

As set forth above, copyright protects works of authorship fixed in a tangible medium. However, copyright protection does not extend to all intellectual property. Rather, your intellectual property may more properly be protected through trademark or patent law. Trademarks identify the source or origin of goods or services and protect the goodwill associated therewith. Patents protect inventions. Further information on these areas is available through the United States Patent and Trademark Office.

WHAT IS PUBLICATION?  (top)

The Copyright Act defines publication as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

Who cares?  (top)

Before the Copyright Act was amended in 1978, copyright was general secured by the act of publishing a work with notice of the copyright. Since the notice requirement is no longer mandatory, publication is no longer as significant in copyright law, but publication is still relevant in a few respects, such as effecting the deposit requirement for registration and effecting the date that copyright duration is calculated. I have included this information because you will see the publication concept referenced many times throughout this page.

WHEN DOES A COPYRIGHT ATTACH?  (top)

Since the law was changed in 1978, copyright protection exists from the time a work is fixed in a tangible form. Tangible form means a form that is directly perceptible or perceptible with the aid of a machine or devise. For instance, if you sing a song in the shower the song does not garner copyright protection at this time, because it is not being fixed in a tangible media, but if you sing it into a tape recorder it is fixed in a tangible media and so copyright protection would attach.

SO WHY REGISTER?  (top)

Although since 1978 copyright vests at the moment of fixation in a tangible medium, registration of your copyright with the United States Copyright Office is important for several reasons:
Registration establishes a public record of your copyright and puts the world on notice thereof.
Registration is a prerequisite to filing an infringement suit in the U.S.

If a work is registered within five years of first publication, the registration certificate will serve as prima facie evidence of the validity of the copyright and of the facts stated in the certificate.
If a work is registered before an act of infringement occurs, certain additional damages and attorneys fees are available to a prevailing litigant. Otherwise only an award of actual damages is available to the copyright owner (but you still must register before filing your suit).

Copyright registration allows the owner of the copyright to file with customs to prevent the importation of infringing copies of a work.

This may all seem trivial to you, but the $20 price of registration is, in my opinion, a wise investment. You will be happy you registered if your work is ever infringed.
What are you waiting for? Go register!

COPYRIGHT NOTICE  (top)

(do I need to put that little "c" thing on my work?)
No. not anymore. Works published on or after March 1, 1989 are exempt from the notice requirement, though notice is still highly recommended as it puts the world on alert that you are claiming a copyright interest in your work. Also, in the event of an infringement action, an infringer will be precluded from claiming "innocent infringement" thereby entitling the copyright owner to a higher damages award.

For works published before March 1, 1989, the use of notice (i.e. 1988 John Doe) was mandatory. If you published a work without notice it would revert to the public domain.

Proper form of notice for visually perceptible copies.
This requires The Symbol () or the word copyright or the abbreviation Copr; and the year of first publication of the work and the name of the owner of the copyright.
What's that P in a circle?

The P in a circle is the copyright notice for phonorecords of sounds recordings (i.e., the recording itself as opposed to the underlying composition).

DURATION (how long does a copyright last?)  (top)

This question is more simple for works created on or after January 1, 1978. The Sonny Bono Copyright Term Extension Act was signed into law on October 27, 1998. This Act extends the term of copyright protection for twenty years. Thus, for works created on or after January 1, 1978, the duration of the copyright will last for the life of the author plus seventy years (i.e., seventy years after the author's death.) The copyright in a work created by one or more people lasts for seventy years after the last surviving authors' death. For works for hire, anonymous and pseudonymous works, the copyright term is ninety-five years from first publication, or one hundred-twenty years from creation, whichever is shorter.

Works published before 1978  (top)

For works published before January 1, 1978, this question gets a little trickier. Generally speaking under previous law, a copyright was secured either on the date of publication or a work, or the date the work was registered in unpublished form. In both instances, the term of copyright was twenty eight years from the date the copyright was secured. Thereafter, the copyright could be extended for a second term of twenty eight years if a renewal was applied for within the last year of the first term. If not renewed, the copyright expired at the end of the first twenty-eight year term.

Works renewed before 1978  (top)

Works that were originally copyrighted before 1950 and renewed before 1978 were granted an extension to their renewal term by an act of Congress (recently again extended). Thus, the renewal term now lasts for sixty-seven years (for a total of a ninety-five year copyright term.)

Things get tricky for works that were in their first term when the law changed in 1978. Works copyrighted between January 1, 1950 and December 31, 1963 still had to be renewed in order to be protected for a second term. If renewed, the second term was extended to sixty-seven years, for a total of a ninety-five year term, see above.) If renewal was not applied for, the copyright protection ended on December 31 of the twenty eight year.

Works copyrighted between January 1, 1964 and December 31, 1977 were automatically renewed for a second term. Thus, no registration of the renewal was required.

Pre-1978 works that remain unpublished  (top)

Works that were created but not published or registered before January 1, 1978 are automatically given copyright protection. The term of protection is calculated the same way as under the current law, i.e., life of the author plus seventy years (or the 95/120 year terms for works for hire, anonymous and pseudonymous works). However, in no case will a copyright in any pre-1978 unpublished work expire before December 31, 2002, and if the work is published before that date, the term will extend for another forty five years (through 2047).
For more information on the extended copyright terms, please see the Copyright Office Circular New Terms for Copyright Protection.

WHAT IS A WORK FOR HIRE?

(do I own it or does that guy who paid me?)
Generally speaking, the person that creates a work is the author, and hence, the owner of that work. However, when a work is made for an employer (within the scope of employment), the EMPLOYER, not the employee is considered the author.

This seems relatively simple, but things can get a little sticky when determining whether someone is an employee or not. The law of agency is used to determine whether someone is an employee. For more information on works for hire and determining whether a work is a work for hire, please refer to Copyright Office Circular 9.

In addition, works that are not created by employees, but which are commissioned, can qualify as a work for hire. In such a case the commissioner receives the ownership interest in the work rather than the artist. The Copyright Act defines a commissioned work as a work for hire in situations when the work is "specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional test, as a test, as an answer material for a test, or as an atlas." There must also be a written agreement signed by the parties that the work shall be a work for hire. Thus, only the foregoing types of commissioned works, when a written agreement exists, can be deemed works for hire. Other types of commissioned works cannot. (This type of situation frequently comes into play in the motion picture industry with writers, directors, etc. The producer becomes the owner of the copyright).

WHAT IS A DERIVATIVE WORK?  (top)

A derivative work is a work that is based on, or incorporates, one or more already existing works. Examples of derivative works include multi-media works using preexisting elements, screenplays adapted from books, new musical arrangements, art reproductions or any other work that modifies, is derived from or elaborates upon a preexisting work. To be copyrightable in its own right, a derivative work must contain enough elements of originality to qualify as as new work. Further, a copyright holder in a derivative work will only obtain a copyright interest in his original contribution, not the underlying, preexisting elements.

It is extremely important to note that only the copyright owner of the underlying work, or one who has been granted permission to do so, may prepare derivative works. Unauthorized derivative works violate a copyright holder's exclusive rights under the copyright act.

For more information on derivative works, please see Copyright Office Circular 14.

HOW DO I REGISTER MY COPYRIGHT?   (top)

Click Here to send me an email saying that you would like to hire me to be your attorney and register your copyright for you.
 
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