Copyright Law

A copyright protects original works of authorship which have become “fixed” in a “tangible form of expression.”  That includes novels, poetry, movies, songs, and computer software.  Some building designs are also entitled to copyright protection.  Ideas are not entitled to copyright protection.  It is not until the work is written down, burned into a CD, or otherwise fixed in a tangible form, that it becomes entitled to protection under copyright law.

Copyright law is sometimes grouped with trademark law and patent law.  These three areas of law are sometimes referred to as “intellectual property law.”  Each of the three areas of intellectual property law are; however, quite different from each other and serve different purposes.

A trademark is a word, name or symbol that is used to identify the goods of a company so as to build brand identity and distinguish a company’s goods from the goods of competitors.  A service mark is the same, except that it relates to services provided by a company instead of products sold by the company.  There is a more complete discussion of trademark law on the Trademark Law Practice Area of this web site.

A patent is the grant of a property right to an inventor.  The Harrison Firm, PC practices trademark and copyright law, but not patent law.  Basic information about patents can be found on the web site of the U.S. Patent and Trademark Office of the Department of Commerce.

Both patent and copyright protection is grounded in Article I, Sec. 8 of the United States Constitution.  Laws enacted by Congress further provide and describe those rights.

Prior to the 1976 Copyright Act, certain works that were neither published nor registered could enjoy certain rights as a common law copyright in perpetuity as long as they remained unpublished and unregistered.  After passage of the 1976 Copyright Act, such works went into the public domain unless published or registered by January 1, 1978.  An unregistered copyright gives the author the right to reproduce, sell and perform the copyrighted work.

Registering a copyright provides significant other rights, making it almost always advisable to register the work.  Registration is required before bringing a lawsuit for infringement.  Registration within five years of publication is prima facie evidence of authorship.  If a work is not registered within five years of publication, the author (the plaintiff in the infringement action) has the burden of proving that he is the author of the work.

If registration is within three months after publication and prior to an infringement of the work, then the creator of the work is entitled to claim statutory damages and attorney’s fees.  These are very significant benefits.  Statutory damages are amounts set out by statute.  It is sometimes difficult to prove actual damages caused by infringement.  Statutory damages are generally much easier to establish.  Being able to seek recovery of attorney’s fees in bringing an infringement action is a significant benefit to the creator of the work.

Although a notice of copyright, containing the name of the author and date of first publication has not been required since March 1, 1989, it is advisable to include a notice.  If a work has a notice of copyright it cuts off a defense of “innocent infringement” which could otherwise be asserted to limit the amount of an actual or statutory damage award.

A copyright gives the creator of an original work significant rights for a period of time.  Copyright laws have changed over time with the duration of copyright protection varying depending upon several factors.  Although there are also exceptions under current law, in the United States a copyright is generally for the life of the creator plus 70 years.

Short titles, names, short phrases and slogans are not entitled to copyright protection.  It is possible, however, that they may be entitled to protection as a trademark or service mark if used to build brand identity associated with a product or service.

Works created while in the employment of another, and created within the scope of that employment, are generally what copyright law terms a “work made for hire.”  Authorship of a work made for hire is considered to be in the employer and not the employee.  Thus it is the employer who is entitled to copyright protection.

It should also be noted that purchasing a book, painting or CD, for example, does not convey with the purchase any right to make a copy of it.  Ownership is of that one book, painting or CD only. Making a copy would likely be an infringement of the copyright held by the creator of the work.

A registered copyright is not entitled to unlimited protection, however.  One very significant limitation on copyright protection is the “fair use” doctrine which was developed through court decisions and now has a statutory basis in Section 107 of the 1976 Copyright Act, codified at 17 U.S.C. §107.  Use of someone’s copyrighted material may be permitted as “fair use” if done for criticism, comment, news reporting, teaching, scholarship or research.  The distinction between what is “fair use” and what is infringement is not always clear.  There is a brief discussion of fair use in the Newsletter posting on this web site entitled “The Stamp War Shoot Five:  Gaylord v. United States.”

The United States is a signatory to several international treaties regarding copyright registration and protection in foreign countries.  Those treaties include the Berne Convention, the Universal Copyright Convention, the World Intellectual Property Organization Copyright Treaty, and the Agreement on Trade-Related Aspects of International Property Rights.

The above comments are intended to illustrate general principles only.  There are often exceptions to general rules which apply in certain circumstances.  Laws change over time by subsequent enactment of legislation and by court decision.  Legal principles can differ from one jurisdiction to another.  Particular factual circumstances may result in a different legal conclusion.  If you have a question about a particular factual situation you should consult with an attorney.

David Harrison is experienced in both copyright applications and copyright litigation.

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