Intellectual Property 101 - Copyrights

Copyright is a term used to describe a legally recognized property right in a creative work.[i] Copyright law protects an author’s “original works of authorship,” including literary, musical, dramatic, choreographic, pictorial, audiovisual, sound recordings, and architectural works.[ii] Copyrights essentially protect artistic, original expression. The Constitution expressly protects copyrights by stating that “Congress shall have Power . . . To promote the Progress of Science and useful Arts . . ., by securing for limited Times to Authors and Inventors . . . the exclusive Right to their respective Writings and Discoveries.”[iii] Copyright laws only protect original works of authorship that are fixed in any tangible media.[iv] The originality requirement is met as long as the work is the product of the author’s independent efforts and is more than merely trivial.[v] The phrase, “fixed in a tangible medium” simply means that the expression has been captured in a medium that is sufficiently permanent or stable such that the work can be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.[vi]

The following article was written by Scott Harper and is part three of a multi-part series covering intellectual property rights in the United States.

Read part one here: Intellectual Property 101 - Patents.

Read part two here: Intellectual Property 101 - Trademarks.

A. Purpose of Copyrights

Copyright laws have “two goals: spurring the creation of new works and ensuring the optimal use of those works once they have been created.[vii] Copyright laws ensure that creators can distribute and profit from their creations without interference from infringers.[viii] This encourages the ongoing creation of new artistic works. Without the legal recourse of copyright, there would be no economic incentive to create and produce one’s work, as anybody could more easily copy and profit from the work of another.

Copyright laws also ensure that the public will have access to original works.[ix] First, copyright laws allow the transfer of copyright ownership and protect distribution rights. This makes it a profitable endeavor to provide creative works to the public through public performance and display of the work.[x] Second, through mechanisms such as expiration of copyrights and the fair use exception, the copyright system ensures that works are not overprotected in perpetuity and while providing for limited non-infringing use of portions of the work by the public.[xi]

B. Advantages of Notice and Registration

Copyright protection attaches from the moment an original work of authorship is fixed in a tangible medium. Therefore, notice of a copyright is not required for protection by copyright law.[xii] However, there are several advantages to displaying a copyright notice. One advantage is that it provides notice to others that the work is copyrighted.[xiii] This avoids a defense of innocent infringement.[xiv] Notice also describes how to contact the copyright owner for purposes of licensing or receiving permission to use the copyrighted work. There are three elements of a proper copyright notice.[xv] The first element is the symbol (c), the word “Copyright’ or the abbreviation “Copyr.” The second element is the date of first publication of the work. The last element is the name of the owner of the copyright in the work.

The Copyright Act, codified in 17 U.S.C., provides a system for registering a copyright.[xvi] Applications for registration are filed in the United States Copyright Office.[xvii] As with copyright notices, registrations are not required to receive protection under copyright laws.[xviii] However, there are many reasons why one would want to register their copyright. A copyright must be registered before an owner of a work can file a lawsuit for copyright infringement.[xix] Furthermore, a copyright registration can be recorded with the U.S. Customs and Border Protection Agency to keep pirated and counterfeit goods from being imported into the U.S.[xx] Finally, if registration is made within three months after publication or within one month after learning of an infringement, the copyright owner may be entitled to statutory damages and/or attorneys’ fees.[xxi]

C. Types/Classes of Statutory Coverage

Copyright law extends to eight categories of “original works of authorship”: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and architectural works.[xxii] These categories are intended to be illustrative and not limiting.[xxiii]

D. Term of Copyrights

The copyright term for works which secured protection under the current statute, the Copyright Act of 1976 (and as amended in 1998) and which took effect January 1, 1978, provides that for works created on or after January 1, 1978 the copyright term lasts for the life of the author plus seventy years from the date of the author’s death.[xxiv] If joint authors created the work and the work was not made fore hire, then the additional seventy year term is calculated from the date of death of the last surviving author.[xxv] If the work was “made for hire,” published under a pseudonym or anonymously, the copyright term lasts for the lesser of 95 years from the date of publication of the work or 120 years from the date of its creation.[xxvi]

E. Ownership of Copyrights

By statute, the owner of a copyright is the person(s) who authored the work.[xxvii] However, there are several exceptions to this fundamental rule. The exceptions include, (1) if the work was created by an employee in the course and scope of their employment with an employer, the employer owns the copyright in the work and (2) if the work is commissioned and a signed written work for hire agreement is in place, the work “made for hire” will be owned by the party who commissioned the work as long as the commissioned work falls within one of the statutory categories of commissioned works that qualify as works made for hire.[xxviii]

Ownership of a copyright may be transferred to another, in whole or in part, by any means of conveyance (e.g. written assignment agreement), by operation of law, by will or pass as personal property pursuant to intestate succession.[xxix] A valid transfer of copyright ownership requires a signed writing by the owner, or her duly authorized agent, memorializing the transfer of the copyright interest to the transferee.[xxx] Any document memorializing the transfer of a copyright interest may be recorded in the Copyright Office, if it bears the actual signature of the person who executed the transfer document. The recordation of copyright transfer documents provides constructive notice to the public of the terms recited in the document as long as (1) the transfer document, or material attached to the transfer document, specifically identifies the work being transferred and (2) the work has been registered with the Copyright Office.[xxxi]

[i] See 17 U.S.C. § 102 (2012).

[ii] Id.

[iii] See U.S. Const. art. I, § 8.

[iv] 17 U.S.C. § 102.

[v] See Bleinstein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).

[vi] 2 William F. Pantry, Pantry on Copyright § 3:22 (2015).

[vii] Gideon Parchomovsky & Kevin Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483, 1484-85 (2007).

[viii] See 17 U.S.C. § 106 (2012).

[ix] Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994).

[x] See 17 U.S.C. § 106.

[xi] See id. § 301-305; 107.

[xii] Id. § 401.

[xiii] Id.

[xiv] Id.

[xv] Id. § 401(b).

[xvi] See id. § 408.

[xvii] Id.

[xviii] Id.

[xix] Id. § 411(a).

[xx] See 19 C.F.R. §§ 133.31-133.37.

[xxi] 17 U.S.C. § 412 (2012).

[xxii] Id. § 102.

[xxiii] Id. § 101; WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 627 (7th Cir. 1982).

[xxiv] 17 U.S.C. § 302(a) (2012).

[xxv] Id. § 302(b).

[xxvi] Id. § 302(c).

[xxvii] Id. § 201(a).

[xxviii] Id. § 201(b).

[xxix] Id. § 201(d).

[xxx] 17 U.S.C. § 204(a) (2012).

[xxxi] 17 U.S.C. § 205 (2012).