COPYRIGHTS – A BRIEF EXPLANATION

A copyright protects an original, independently created work of authorship fixed in a tangible medium of expression, and which possesses at least a minimal degree of creativity. A work of authorship is considered fixed if it is captured in a sufficiently permanent medium that allows the work to be perceived, reproduced or communicated for more than a short time. A tangible medium of expression means that the work must be able to be communicated to others through visual or auditory means (e.g., on paper, a movie, a song, a hard drive, a website).

Examples of protectable works include musical works, dramatic works, literary works (including software code), pictorial works, sculptures, motion pictures, architectural works, and sound recordings. Conversely, examples of things that are not protectable through copyright include ideas, works not recorded (e.g., a live performance that is not recorded), titles, slogans, listings of ingredients or contents, variations of color or lettering, and names.

Ownership of the copyright in a work is the author (or jointly the authors) of that work, unless the work was created by an employee as part of his regular duties or by a party as a result of a written agreement – in which cases the work is considered “work for hire” and the owner is therefore the employer or the party designated as the owner in the written agreement, respectively.

The term of a copyright can vary, depending on the circumstances. For works created after January 1, 1978, the term ends 70 years after the death of the author (or 70 years after the death of the last surviving author in the case of joint authorship of a work). For a work made for hire or anonymously, the term ends the sooner of 95 years after publication or 120 years after creation. For a work created before January 1, 1978, the rules governing the term of the copyright depends on whether the work was published and/or registered as of that date.

While registration of a copyright (with the Copyright Office of the United States) is not required, there are certain advantages to doing so. First, registration is a prerequisite for initiating an infringement action in court. Second, the copyright owner may be entitled to statutory damages, attorneys’ fees, and costs. Third, registration establishes prima facie evidence of validity of the copyright and the facts stated in the certificate of registration, provided that registration is made no later than five years after publication. It should also be noted that a copyright notice (the copyright symbol or the word “Copyright” followed by the year of first publication and the owner’s name) is also optional but is also advantageous to include with the work. For example, such notice prevents a potential infringement defendant from asserting certain damage-reducing defenses. It also provides notice to potential user of the work that same is protected by a claimed copyright.

As is the case with other types of intellectual property rights, the subject of copyright infringement and litigation is complex. Generally, a plaintiff accusing a party of infringing the plaintiff’s copyright must prove by preponderance of the evidence that he is the owner of a valid copyright and that the accused party copied original expression from the copyrighted work. Infringement may be direct or indirect infringement. The latter requires direct infringement plus an indirect infringer that knew of the infringement and induced or materially contributed to the direct infringement. But note that using a copyrighted work may not necessarily constitute infringement but may for example be protected under the “fair use” doctrine. Whether that doctrine applies depends on all the circumstances, and generally permits the use of limited portions of work including quotes for purposes of commentary, criticism, news reporting, and scholarly reports.

Whether a person is seeking to protect a work of authorship through copyright, or is unsure whether a particular use of a protected work would risk infringement, it is important to retain the services of competent copyright counsel.