United States: Copyright

Last Updated: December 19 2014
Practice Guide by Brinks Gilson & Lione

A. Definition and Principles

Copyright protection arises the moment an original creative work is fixed in a tangible medium of expression. Protected works include literary (books, printed materials and software), dramatic and musical, audiovisual, movies, recordings, and art. The copyright owner has the exclusive right to do or authorize any of the following: reproduce the work, prepare derivative works, publicly distribute copies of the work, publicly perform the work, publicly display the work, and publicly perform sound recordings by means of digital audio transmissions. As a general rule, no person can exercise any of these rights without the copyright owner’s permission.

Importantly, copyright protection is limited to the expression of an idea, not the ideas themselves, or the procedure, process, method, concept, or discovery. Further, copyright does not extend to words or short phrases (such as titles or slogans), logos, symbols or useful articles.

B. What is Copyrightable?

To be copyrightable, a work must be original and exhibit a minimal degree of creativity. It must fall within one of the following groups of copyrightable subject matter:

• Literary works (books, catalogs, software);

• Musical works, including any accompanying words;

• Dramatic works, including any accompanying words;

• Pantomimes and choreographic works;

• Pictorial, graphic, and sculptural works;

• Motion pictures and other audiovisual works;

• Sound recordings; and

• Architectural works.

Some categories of subject matter are expressly excluded from copyright protection, such as trademarks, short phrases, slogans, and most utilitarian articles, such as an automobile wheel cover.

C. Copyright Duration

A copyright arises at the moment of creation, which is the moment at which the work is fixed for the first time in a tangible medium of expression that is reproducible. This copyright exists even if the work is not published. Generally, a copyright lasts for the life of the author plus 70 years. For anonymous and pseudonymous works and works made for hire, the term of copyright is 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.

D. Copyright Ownership

1. Authors and Joint Authors. The copyright is owned, at least initially, by the author of the work. In the case of a joint work, the joint authors are joint owners or co-owners of the copyright. In the absence of a different agreement between co-owners, each has the right to freely use the jointly owned copyright. However, if one uses the work in a manner that results in gain, he or she must account to the other owner so that profits can be shared.

2. Works Made For Hire. If a company or person hires an individual to create a copyrightable work, the work may fall into a special class of works called “works made for hire.” Employees and independent contractors are treated differently under the Copyright Act. When an employee acts within the scope of his or her employment to create a work, his or her employer is considered to be the author, and thus the owner, of the copyright.

Frequently, a company will hire an independent contractor to create or help to create works, such as a website, a catalog, an audiovisual presentation, and so forth. The company that pays for the work may use it for its intended purpose, but the Copyright Act assumes that the independent contractor—not the commissioning party—owns the copyright to the work. In order for the commissioning party to be deemed the author under the Act, the independent contractor must expressly agree, in a signed contract or agreement, that the work is being created as a work for hire. Absent of an express agreement, the independent contractor may copy the work and use it, sell it, or assign it to someone else. It is important to note that not all works are susceptible to workmade-for-hire status. Specifically, commissioned works created by independent contractors may be considered works made for hire only if the works are to be used 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 sample answer for a test, or an atlas.

3. Copyright Assignment. Copyright ownership is freely assignable. Therefore, if a work does not fall within the work-made-for-hire rules, the parties may nonetheless agree that the author may assign (transfer) all copyrights in one or more works of authorship. A written agreement is required for such an assignment.

E. Rights Protected by Copyright

The Act accords six exclusive rights to copyright owners: (1) reproduction; (2) prepare derivative works; (3) publicly distribute copies; (4) publicly perform the work; (5) publicly display the work; and (6) publicly perform sound recordings by means of digital audio transmissions. A copyright is infringed upon by the unauthorized exercise of any of these exclusive rights by another.

F. Copyright Enforcement

Copyright infringement cases are almost always heard in federal court. To prevail in a copyright infringement claim, the copyright owner plaintiff must prove not only ownership of a valid copyright, but also violation of at least one of the six exclusive rights of copyright. To prove a violation, the plaintiff must either demonstrate actual copying (as opposed to an independent creation) or provide proof of access to the copyrighted work and show that the copied work is “substantially similar” to the original.

Judicial relief may include an order to prevent further violations or impoundment or destruction of infringing works, and an award of statutory damages, compensatory damages, and, in some cases, attorneys’ fees. Although the Copyright Act criminalizes some types of infringement, nearly all enforcement is by civil action brought by a copyright owner.

The Copyright Act excludes certain kinds of copying from copyright infringement liability. The most important is if the user can show “fair use” of the copied material, such as copying for purposes of criticism, news reporting, teaching, scholarship, or research. While fair use is not specifically defined, the Act lists factors such as:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

• The nature of the copyrighted work;

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• The effect of the use upon the potential market for or value of the copyrighted work.

G. Copyright Registration

The Copyright Act prohibits the copying of original works, regardless of whether the author registers his or her work with the U.S. Copyright Office. There are significant advantages to registering the work, however. For instance, registration within five (5) years raises a legal presumption of ownership and copyright validity. Registration made within three months of the work’s publication or prior to an infringement of the work also enables a court to award statutory damages (an amount prescribed by the statute irrespective of the damages the author actually suffered) and attorneys’ fees to a prevailing copyright plaintiff.

Registering a work with the USPTO involves simply filling out the appropriate form, submitting a modest fee (currently $35 for electronic submissions), and depositing two samples of the work with the U.S. Copyright Office.

H. Marking the Work

Since 1989, works no longer need to bear a copyright notice to be protected under the Act. Nevertheless, it is still a good idea to mark any original work with the word “copyright” or the “©” symbol, along with the year of publication and the name of the author or copyright owner. Adding a copyright notice will preclude the defense of innocent infringement and may discourage people from copying the work to begin with.

To find out more please access our IP Primer page.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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Useful Resources
The IP primer provides an overview of the complexities of IP law, is an excellent resource for both new and experienced professionals and available in a number of languages.
A collection of recent and significant publications by the Experts at BGL.
USPTO is the federal agency for granting U.S. patents and registering trademarks.
Administers the U.S. copyright law and advises Congress and other government agencies regarding copyright issues.
WIPO is the global forum for intellectual property services, policy, information and cooperation.
INTA is a global association of trademark owners and professionals.
The Intellectual Property Owners Association is a trade association for owners of patents, trademarks, copyrights and trade secrets.
The AILPA is an innovator, powerful advocate, and visible global leader in intellectual property.
AIPPI is an international organization comprised of business firms, executives, lawyers, educators, patent and trademark agents, intellectual property owners, and other persons interested in the worldwide protection of patents, designs, trademarks, trade names, know how, goodwill, copyright, and other intellectual property rights and the elimination of unfair trade practices.
BIO is the world's largest trade association representing biotechnology companies, academic institutions, state biotechnology centers and related organizations across the United States and in more than 30 other nations.
Supports innovation, competitiveness and economic growth across Europe through a commitment to high quality and efficient services delivered under the European Patent Convention.
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