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Copyright FAQ

What is a “Copyright”?

A copyright offers protection for original works of authorship.  Copyright protection affords the author of a copyrighted work with specific rights that the author can give or sell to others or keep for him/herself.  The concept of copyright protection in the United States is set forth in the original U.S. Constitution which allows Congress to pass laws that promote and encourage the progress of the useful arts.

When do you have a copyright?

A copyright is obtained simply by creating the work.  It comes into existence automatically on the date it is created.

I have a great idea, Can I copyright it?

Copyright protects the expression of the idea, but not the ideas themselves.

What rights does a copyright owner have?

A copyright owner has the following rights:

  • to reproduce the copyrighted work;
  • to prepare derivative works based upon the copyrighted work;
  • to distribute the copyrighted work to the public;
  • to perform the copyrighted work in public;
  • to display the copyrighted work in public; and
  • To authorize others to exercise these rights and prevent others from exercising them regarding his or her work.

If I buy a copyrighted work, why can’t I do anything with it I want?

Ownership of a copyright is not the same as owning an object which has copyright protection.

For example, when you buy a book, you get an implied license from the copyright owner to use the one copy you have purchased for the purpose of reading it.  You do not have the right to copy it (other than pursuant to the fair use doctrine).  Buying a single copy of a work is not buying the copyright in the work.

Can I use someone else’s copyrighted work?

The fair use doctrine allows reasonable use of copyrighted works (without requiring the author=s permission) for teaching, research, and news reporting.  The Federal Act states: A[T]he fair use of a copyrighted work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

There are four important factors that must be looked at when determining whether or not the fair use doctrine applies:

  • the purpose 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 of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use on the potential market for or value of the copyrighted work.

What is the impact of the “fair use” doctrine on printing copies?

The doctrine of fair use permits reproduction for scholarship and research (among other certain restricted uses), i.e., where we as a society think our general welfare is increased by making information publicly available and useable.  This doctrine stops the moment any commercial interest gets involved; so as soon as your use of the copy starts creating any profit from making the copy, you are no longer protected by this safe haven.

How long is copyright protection valid on new works?

Generally, works published after 1922, but before 1978 are protected for 95 years from the date of publication.  If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.  However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.  And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.

What remedies are available for infringement of intellectual property rights?

You may ask the appropriate court to grant a Temporary Restraining Order and a Preliminary or Permanent Injunction to prevent and/or stop further infringement.  Allegedly infringing items or articles can be impounded while the action is pending and may be ordered destroyed or subject to other disposition if there is an infringement.  An infringer can be liable for actual damages plus additional profits of the infringer or statutory damages.  Further, an infringer could be held liable for injury to business reputation or the dilution in the value of the copyright, patent, or trademark.

What arguments may be made to defend a claim of copyright infringement?

The defendant may argue:

  • He did not copy your work, but independently created it;
  • He was only making “fair use” of the material, discussed earlier;
  • You delayed bringing the action for too long a period (so that it is barred by “laches” and/or the applicable statute of limitations);
  • You or someone else (with proper authority) had authorized the use; and
  • He did not know the work was copyrighted.  This defense does not play well in most circumstances, as even an innocent infringer may have liability.

Do patent, trademark and copyright laws apply to computers and related activities?

Yes, the statutory and common law schemes for the protection and enforcement of the rights of authors, inventors and businesses  established under the respective laws for patent, trademark and copyright all apply to computers and related activities.

How can software license agreements help protect my software?

A software license agreement offers a contractual remedy against the user for failing to comply with any provision in the agreement.  This is in addition to any other legal remedies that may be available, such as those under copyright law.  A license agreement should set forth the parameters and restrictions on use of the software.  They are also important to limit the software owners’ liability for use of the software which can significantly lower the site’s risk of doing business.  These agreements can also waive legal warranties which are implied into the sale of software including warranties of non-infringement.

What is a “work for hire”?

If a work is a work made for hire, this means that a person was hired specifically to create the copyrighted work.  The employer of the creator of the work can register the copyright and is entitled to protection.

What kinds of work are eligible for “work made for hire” status?

There are now only 9 categories of works eligible for work made for hire status.  While these 9 categories are fairly broad and probably encompass most of what firms buy and sell, there may be significant gaps.

A work made for hire is one specially ordered or commissioned for use as:

  • a contribution to a collective work;
  • part of a motion picture or other audiovisual work;
  • a translation;
  • a supplementary work;
  • a compilation;
  • an instructional test;
  • a test;
  • answer material for a test, or
  • an atlas.

I want to post my wedding pictures on the Internet but the photographer claims that he retains the copyright, even though there is no clause in the contract, who owns the copyright?

Of course whoever owns the copyright can control the use made of the pictures.  Without a written agreement or an undisputed verbal agreement, it is difficult to determine who owns the copyright.  If it was your understanding that you would own the images, and especially if you told him you planned to post them on the Net, you may be deemed to be the owner.

How do I obtain and protect a copyright?

Copyright protection now arises on creation of a work, without formal action on the author’s part.  However, it is wise to always place a copyright notice – typically a “c” inside a circle (©), with a year next to it and the name of the copyright holder on every publication of the work.  You can obtain a formal copyright that provides certain rights, by filing an application with the Federal Copyright Office of the Library of Congress.

What is required to get a copyright?

You do not need to apply or register to have a copyright; you receive copyright protection when you create the work.  The instant you use your pencil, typewriter or computer to produce something original it is subject to copyright protection provided it is a copyrightable subject matter.  However, registering your work with the Copyright Office expands your protections and sometimes can be done without disclosing the entire work.  Depositing a copy of your work with the U. S. Copyright Office within 90 days of creation also protects your work by providing a legal record of the creation date and allowing others to have notice of your ownership rights.

What is the registration process?

Registration with the Copyright Office includes the filing of a copyright claim application, payment of the registration fee, and deposit of at least 2 copies of the work.  Accelerated registrations are available for a fee that is substantially higher than that charged for routine registrations.

How do I write a copyright notice?

(c) [Date of First Publication/Creation] [Owner Name], All rights reserved.

Can assignments and licenses of copyrights be limited in terms of time, geography, or type of use?

If you own a copyright you can limit the time, scope, sphere, and nature of any assignments you make.  You may impose time limits (for example, “until December 31, 2015”), or territorial limits (for example, “in Canada, in the United States west of the Mississippi only”), or media limits (such as “print only” or “electronically on the Web only”), and so forth.

What are the benefits of registering a copyright?

Registration is generally necessary before you can bring a lawsuit in federal court to enforce your copyright.  Registration within three months of the original publication date, or before infringement begins, allow you to claim “statutory” damages and attorney’s fees when enforcing your copyright.  “Statutory” damages are fixed by the court as an alternative to actual damages and are often sought when the measure of actual damages is difficult to determine.  A copyright application filed within five years from the date of first publication of the work gives rise to a presumption that the copyright is valid.

Should I register my work for copyright protection?

Although it is not mandatory, registration does two important things:

(1) Most importantly it provides a record of you having created the material and its format as of the date of registration.  Being able to prove that you created the work first is often the most important part of a copyright law suit.

(2) Registration gives you additional rights like the ability to get damages as set forth in the law and attorneys fees.

What works may receive copyright protection?

Copyright protection exists for original works of authorship that involve some minimal level of creativity.  The work must be fixed in a tangible medium of expression so that it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or other device.  Ideas, concepts, principles, or methods of operation are not subject to a copyright, but the original work that is authored or created from such ideas or concepts may become subject to a copyright.  Works that may be copyrighted include:

  • literary works;
  • musical works;
  • dramatic works;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audio-visual works; and
  • sound recordings.

What are works in the Public Domain?

The Public Domain refers to created material which either by law does not get copyright protection or their protection under the law has lapsed.  By definition, materials in the public domain do not have copyright protections and thus you do not need the owner’s permission to use these materials.  Contrary to the wording, however, whether materials are public has no relationship to whether they fall into the Public Domain.  This mistaken notion has somehow led many to believe that everything on the Internet is public and therefore in the Public Domain and thus freely usable without permission.  This is completely false.

What type of works does not have copyright protection?

The following do not have copyright protection:

  • Works that have not been fixed in a tangible form of expression (for example,  a dance performances that have not been written down or recorded); and

Works without enough originality or creatively to merit copyright protection such as: titles, names, short phrases, and slogans; familiar symbols or designs; font design; ingredients or contents; facts; blank forms, etc.

Inside Copyright FAQ