Copyright FAQ

Copyright in General

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works, and gives the copyright holder (often the author or publisher) the right to control certain uses of works that are protected by copyright. It also gives users the right to make certain uses of those works without permission.

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, but, the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. In the United States, copyright protects only “original works of authorship fixed in any tangible medium of expression.” To be eligible for copyright protection, a work must be an original work of authorship, placed in a fixed, tangible medium of expression. Your work becomes protected the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.Publication is not necessary for copyright protection.For that reason, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.These requirements are limited. For example, US copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” It also does not protect works prepared by an officer or employee of the US Government as part of that person’s official duties.

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation.

The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country.

What Does Copyright Protect?

The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright.

Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assigning of domain names through accredited registers

A mere listing of ingredients is not protected under copyright law, and attaches on to the “originality” requirement of a protectable copyright. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. If you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.

You can register copyright in the diary within a certain duration only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.

Yes. Architectural works became subject to copyright protection on December 1, 1990. The copyright law defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are eligible for protection.

No. Names are not protected by copyright. Publishers of works such as a star registry may register a claim to copyright in the text of the volume [or book] containing the names the registry has assigned to stars, and perhaps the compilation of data; but such a registration would not extend protection to any of the individual star names appearing therein. Copyright registration of such a volume of star names does not confer any official or governmental status on any of the star names included in the volume. For further information on copyright protection and names, see Circular 33, Works Not Protected by Copyright

Who Can Register?

Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty or that are created by a citizen or domiciliary of a country with which we have a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office.

Minors may claim copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors.

You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.

If you apply for copyright registration online, you will receive email confirmations of completed steps in the application process. Otherwise, the Copyright Office does not provide a confirmation of receipt.

The time the Copyright Office requires to process an application varies, depending on the number of applications the Office is receiving and clearing at the time of submission and the extent of questions associated with the application. Current Processing Timesmay last for 6-9 months.

Copyright law gives the copyright holder (often the author or publisher) the right to control certain uses of works protected by copyright. If the work you want to use is protected by copyright, using it without permission could implicate the rights of the copyright holder. However, your use might still be permitted if it falls within a user’s right. Finally, even when copyright law permits your use, contract law may prohibit it.First, consider whether any contractual terms limit your ability to use the work. You must obey any terms that you agreed to in order to gain access to a copy of the work. This is common with software, electronic resources, and materials in archival or special collections.Second, consider whether the work is copyrightable. In the United States, copyright does not protect ideas, facts, methods of operation, or the like. It also does not protect works prepared by an officer or employee of the US Government as part of that person’s official duties.Third, consider whether the work is in the public domain. Works that are in the public domain may be used without permission. In general, the older a work is, the more likely it is to be in the public domain. After that, consider whether there is an existing license (such as a Creative Commons license) granted by the work’s rightsholder that would permit your use.Then,consider the various user’s rights. Fair use is the broadest of these rights and is a good place to start. If you plan to publish your work, do you know if your publisher will permit you to rely on fair use for third-party content? Many do not, but if yours does (or if you will be distributing the work yourself), you’ll want to analyze whether your use of the work would qualify. Whether your use is fair will depend on the four fair use factors. There are no general limits on the amount of a work that you can use under fair use — in some cases, it is fair use to use an entire work; in other cases, it is not fair use to use even a small portion of the work. Fair use favors academic and educational uses, but not all such uses are fair. If you do not believe your use to be fair, consider whether it falls under any of the specific user’s rights, such as the one for using works during face-to-face teaching.Lastly, if your planned use implicates one of the rights of copyright holders and does not fall under a user’s right, you will need to get permission from the copyright holder or change your plans.

Under current US law, you do not have to register your work to receive copyright protection. You may want to register it anyway, because copyright registration comes with certain legal benefits. If the work is registered within three (3) months of its publication date, or before a particular infringement occurs, the copyright holder can recover statutory damages (monetary awards that need not be connected to actual harm suffered by the copyright holder) and attorney’s fees if she is successful in an infringement suit. Also, registration is required before the author can bring a lawsuit about the use of her work. However, despite these benefits, many works are never registered because registration takes time and money.

For most works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright term is 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter. The attorneys at Barshay Sanderscan help you to determine the length of copyright protection for works that predate 1978.

Under US law, the initial copyright holder is the author of the work. In most cases, copyright law treats the creator(s) of the work as the author(s). If someone creates a work as an employee (or in certain cases, as a contractor), that person’s employer is considered the author of the work.

If two or more people make copyrightable contributions to a work with the intent that their contributions be merged into one whole, they are joint authors under US law. As joint authors, they hold equal shares of the copyright from the time the work is created. A joint rightsholder owes her co-rightsholders their shares of the profits from uses or licenses she makes of the work. Joint rightsholders can grant non-exclusive licenses unilaterally. To transfer the copyright or grant an exclusive license, all joint rightsholders must agree.

In the case of a “work made for hire,” the author under copyright law is the person who employed or commissioned the creator of the work, rather than the creator of the work herself. There are two ways a work can be a work made for hire. A“work made for hire”exists if (i) the work is created by an employee who is acting within the scope of her employment, or (ii)if it is commissioned “for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas,” and the commissioner and the creator of the work agreed in writing that it would be treated as a work made for hire. For example, if someone who works at an advertising agency creates an advertisement at work, that advertisement is a work made for hire. Second, a work is a work made for hire

It is possible to transfer or assign copyright. In the frequent cases of publishing agreements, the publisher holds the copyright to a work, and not the author. A valid copyright transfer requires a signed written agreement. You can transfer or assign all of your copyrights or only certain parts. For example, you could assign the right to distribute your book in the United States to one publisher and the right to distribute it in Europe and North Africa to another publisher.

Economic rights form the bulk of a copyright holder’s rights under US law. They stand in contrast to moral rights, which are less recognized under US law.

In US law, the economic rights of copyright holders are listed in §106 of the Copyright Act, stating:Subject to §107 through 122, the owner of copyright under this title 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.

Under current US law, you do not have to provide a copyright notice on your work to receive copyright protection. However, if you are making your work publicly available, you may want to. Putting a copyright notice (©), the year of publication, and the name of the copyright holder) on a work tells the rest of the world that the work is protected by copyright. If the copyright holder later sues someone for infringing her copyright in the work, she can point to the notice to show that the defendant is not an “innocent infringer,” which can lead to higher damages. A copyright notice also lets others know whom to contact if they would like a license to use the work.

Copyright Infringement

Copyright infringement and plagiarism are related,yetdistinct, concepts. Plagiarism is using the work of another without attribution. Copyright infringement is the reproduction, modification, distribution, public performance, or public display of a copyrighted work without the permission of the rightsholder that does not fall under fair use or another exception to copyright law. It is possible to plagiarize even when copyright allows you to use the work. Similarly, it is possible to infringe copyright even when you have given careful attribution.

Certain uses of copyright material may qualify as a “fair use” and, therefore, not a violation of the copyright owner’s rights, but only in certain circumstances.  An example of this is where copyrighted material is used to teach, critique, review, reference, satire, or otherwise use the material in a way that either gives credit to the copyright holder or significantly repurposes the content.  This is, of course, subject to certain limits. Whether a particular use of an author’s work falls within these categories of fair use is determined on a case-by-case basis based on the exact manner of use.

In short, no. Copyrights are automatically granted the moment an original work is created.  However, you do need to register your work to access the courts for enforcement, and to be eligible to collect statutory damages and attorney fees as part of your recovery.

Many copyright disputes involve competing claims of ownership of a copyright. The attorneys at Barshay Sanders can help you confirm that you own or have a right to use copyrighted works such as photographs, illustrations, designs, software, or other items that your business may purchase, commission from freelancers, use or supply to others. Generally, the person who actually creates a work owns its copyright. Such rights can arise even if the work was commissioned and the creator was paid to create it. However, there are exceptions. As a general matter, employers own the copyrights in the works that their employees create within the scope of their employment. Special rules are implicated to determine whether one qualifies as an “employee” for this purpose. Furthermore, with respect to a limited number of types of works – such as encyclopedias, tests, audiovisual works, and compilations – the party that commissions a non-employee (e.g., freelancer) to create the work pursuant to a written work-for-hire agreement will be considered the “author” and owner of the copyright. Ownership of a copyright can also be acquired through a written assignment from the author.

Copyrights are registered with the United States Copyright Office of the Library of Congress.  Registration is accomplished by submitting an application to the Registrar of Copyrights along with a modest fee and a “deposit” of the work being registered. The particular application form and the deposit requirements vary depending on the type of work you are seeking to register. Registration is not required to own a copyright. But, the cost of registering a copyright is negligible when compared with the benefits from registration, and is often a modest fee. In most cases, registration is a prerequisite to filing a lawsuit to enforce the copyright. With some exceptions, certain infringement remedies, such as statutory damages and attorney’s fees, are only available if the copyright is registered before the infringement begins.

Copyright infringement occurs when someone violates any one of the exclusive rights of the copyright owner; for example, using a photograph in an ad campaign or on a commercial website without the photographer’s permission, installing software on more than one computer that is licensed only for use on a single computer, or creating a derivative work (such as a sequel) based on a copyrighted work. Lawsuit asserting claims of copyright infringement are encouraged to be brought in federal court.

Aside from removing or destroying an infringing use, as the copyright holder you are entitled to seek damages as well. If you are a victim of copyright infringement, you may seek the following penalties against the person violating your exclusive copyrights through copyright courts or within the jurisdiction where the infringement occurred:

  • Monetary damages for the infringement between $200 and $150,000;
  • Transfer of all profits the infringing party made off your work;
  • Reimbursement of all attorney’s fees and court costs associated with pursuing your copyright claim;
  • Injunction against the creation and use of the infringing works;
  • Impoundment of infringing works; and
  • Jail time in the most extreme copyright infringement cases.

You can discuss which specific remedies you wish to pursue with an intellectual property lawyer. In some cases, you may also be able to simply issue a cease and desist letter if you only want the infringing material taken down.

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