Copyright Basics

Copyright 2001 Daniel N. Steven

What is copyright?
Who Can Claim Copyright Protection?
How Do I Claim Copyright Protection?
What Can NOT Be Copyrighted?
Do I Need a Notice of Copyright?
How Long Does My Copyright Last?
Can I Transfer My Copyright?
When Can I Register?
How Do I Register?
What is Work "Made for Hire?"
What is "Fair Use?"
Is My Copyright Protected In Other Countries?

What Is Copyright?

Copyright is a form of protection given to the authors of original works, including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright protection is provided by the laws of the United States (title 17, U.S. Code) and most other countries, and is available both to published and unpublished works.

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• to reproduce the work in copies or electronic form;

• to prepare derivative works based upon the work;

• to distribute copies (electronic or paper) of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

• to perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

• to display 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; and

• in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Who Can Claim Copyright Protection?

In the United States, copyright protection attaches automatically from the time the work is created in fixed form. For example, if you are writing an article or book, the instant you lift your pen from paper or save your word processing file, you have copyright protection in the document created..

The copyright belongs to the author who created the work (except for "made for hire" work). Only the author or those "deriving their rights through the author" can rightfully claim copyright. The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

How Do I Claim Copyright Protection?

This is probably the most frequently misunderstood element of copyright law. Many authors still believe that a formal copyright registration must be made in order to obtain copyright protection, and/or that a work must first be published to qualify for copyright protection. As noted above, however, copyright is automatic when the work is created, and a work is "created" when it is fixed in a copy or recorded for the first time. Publication is no longer the key to obtaining federal copyright. (Before 1978, federal copyright was generally secured by the act of publication with notice of copyright.)

"Copies" as defined by the Copyright Act are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the "work") can be fixed in sheet music ("copies") or in phonograph disks (" phonorecords"), or both.

If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.

What Can NOT Be Copyrighted?

There are several important categories of original material that are NOT eligible for federal copyright protection. The chief exceptions -- the ones that most people ask about -- are for ideas, titles, names, short phrases, and slogans. These cannot be copyrighted, no matter how original or unique they may seem. Other exceptions include:

• works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);

• familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;

• procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; and

• works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

Do I Need a Notice of Copyright?

No, the use of a copyright notice is no longer required under U. S. law. Nevertheless, it is advisable to use it. (Because the previous copyright law required notice, its use is still relevant to the copyright status of older works.)

Why use a notice? Using a copyright notice informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, the defendant may not claim "innocent infringement" in mitigation of actual or statutory damages. (Innocent infringement occurs when the infringer did not realize that the work was protected.)

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

The copyright notice on "visually perceptible copies" (i.e., print, web pages, computer text files) should contain all the following three elements:

1. The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and

2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and

3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: © 2001John Doe

Position of Notice

The copyright notice should be placed on copies in such a way as to "give reasonable notice of the claim of copyright." The three elements of the notice should ordinarily appear together on the copies or phonorecords or on the phonorecord label or container. The Copyright Office has issued regulations concerning the form and position of the copyright notice in the Code of Federal Regulations (37 CFR Section 201.20).

How Long Does My Copyright Last?

For works originally created on or after January 1, 1978, the work is automatically protected from the moment of its creation for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Can I Transfer My Copyright?

Yes. A copyright is personal property and may be transferred by gift or for a fee, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

Should I Register My Copyright?

It depends. As noted above, registration is not necessary to obtain copyright protection, although registration is necessary as a prerequisite to filing a copyright infringement suit. In addition, the law confers certain benefits to copyright owners who formally register. They are:

• registration establishes a public record of your copyright.

• if made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

• if registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages (specific amounts) and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

• registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

Generally, if you have written or created a major work, it is advisable to register before or at the time of publication.

When Can I Register?

Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired. Usually this is done only if the work is substantially altered in its published form.

How Do I Register?

To register a work, send the following three elements in the same envelope or package to:

Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
http://lcweb.loc.gov/copyright/

1. A properly completed application form.
2. A nonrefundable filing fee of $45 (effective July 1, 2006) for each application.
3. A nonreturnable deposit of the work being registered. The deposit requirements vary in particular situations. For more information, see the Copyright Office web site.

What is Work "Made for Hire?"

Under the "work for hire" doctrine, the author of a work for copyright purposes may be a publisher or employer rather than the actual creator. Section 101 of the copyright law defines a "work made for hire" as:

1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use 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 test
• answer material for a test
  
• a sound recording
  
• an atlas

For example, everything written by New York Times reporters is under the the copyright of the Times, not the individual reporter. The Times is the author for copyright purposes. Under recent court decisions, there can be no "implied" work for hire between publishers and freelance writers or artists -- "made for hire" must be specified in a written contract.

What is "Fair Use?"

The "Fair Use" doctrine is a major exception to copyright protection. Section 107 of the Copyright Act provides that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. "

Four factors are to be considered in order to determine whether a specific action is to be considered a "fair use." These factors are as follows:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Unfortunately, the interpretation of these factors can often be difficult and lead to conflicting results. When in doubt, an attorney should be consulted.

Is My Copyright Protected in Other Countries?

Not necessarily. Although there is no such thing as an "international copyright" that will automatically protect an author's writings throughout the entire world, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.