This article is prepared to answer many questions regarding copyright protection. This article discusses the copyright process and the steps, time frames and costs associated with obtaining copyright rights. Of course, it does not cover all details or situations encountered in applying for a copyright, applying for foreign copyright protection or enforcing copyright rights, but is intended to give you a brief overview of the copyright system.
After reading this, if you wish to consider this firm representing you, please call so that we can discuss whether there are any conflicts that would prohibit an attorney-client relationship, and whether we can reach a mutually agreeable arrangement.
What is a Copyright?
The copyright right grants protection to works of authorship which are fixed in a “tangible medium” of expression. The copyright right does not protect a general idea, but rather, protects the expression of an idea. Therefore, while an idea involving a suspense novel is not protected under the copyright laws, a written outline defining the idea’s story would constitute an expression of the idea, and thus, be capable of copyright protection.
The copyright right is protected under federal law, and applies throughout the United States. Specifically, the Copyright Act protects an author’s work by granting specific rights to:
- Reproduce the work in copies or phonorecords;
- Prepare derivative works based upon the copyrighted work;
- Distribute copies of the copyrighted work to the public by, for instance, sale or rental;
- Perform the copyrighted work publicly (in the case of literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audio visual displays); and
- Display the copyrighted work publicly.
Works specifically protected by the Copyright Act include:
- Literary works, including computer programs;
- Music works, including any accompanying lyrics;
- Dramatic works, including accompanying music;
- Pantomimes and choreographic works;
- Pictorial, graphic and sculptural works, including art, maps and architectural plans;
- Audio/visual works, including motion pictures; and
Although these categories are broad, there are several types of materials that are not eligible for copyright protection. These include:
- Titles, names, short phrases and slogans;
- Familiar symbols and designs;
- Variations of typographic ornamentation, articleing or coloring;
- Listings of ingredients or contents;
- Ideas, procedures, methods, systems, processes, concepts, principals, discoveries or devices (as distinguished from the description, explanation or illustration of such ideas);
Works consisting entirely of information that is in the common domain and containing no original authorship (such as factual information); and
- Works that have not been “fixed” in a “tangible form” of expression, such as an improvisational speech, or a performance that has not been written or recorded.
Steps in Obtaining a Copyright
Copyright automatically exists once the work is “created’ in a “fixed” or “tangible medium.” This means that the copyright right exists once the work is created in a “copy” for the first time. A “copy” is a material object from which the work can be read or visually perceived, either directly or with the aide of a machine. For example, a “copy” can include a book, a manuscript, a sheet of music, film, a videotape recording or a computer program. In these cases, the “tangible medium” may be the paper upon which you write the manuscript, a canvas upon which you paint your picture, or even the computer upon which you type your text or draw your design.
“Creation” of a work does not mean the point when the work is first published and publicly available. Rather, a work is created when it is fixed in a copy for the first time. “Publication” refers to the offer to or actual distribution of the work to the public. A public performance or display of the work, however, does not by itself constitute a publication.
For works created (e.g., fixed in tangible form for the first time) on or after January 1, 1978, the duration of copyright protection is the author’s life plus 50 years. In a case of two or more authors, the term lasts for 50 years after the death of the last surviving author. In the case of "works made for hire” and for anonymous and pseudonymous works the duration of a copyright is 75 years from publication or 100 years from creation, whichever is shorter.
For works which were published on or after March 1, 1989, use of the copyright notice is optional. For works published before March 1, 1989, use of the notice is mandatory. Therefore, any work first published before that date must bear the proper copyright notice or risk loss of copyright protection. Under certain circumstances, works published before March 1, 1989 without any notice of copyright may still be protected by registering the copyright. In these cases, you should consult an attorney.
Even though use of the copyright notice is no longer required, it is highly recommended. It serves to inform the public that the work is protected by a copyright, identifies the owner and the date of first publication, and courts look favorably to its use should litigation arise. Further, in the event that the work is infringed, the infringer will not be able to claim that (s)he innocently infringed the copyrighted work.
Use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from the Copyright Office, does not require a pending copyright application, and does not require that the work be registered.
Proper notice for a copyrighted work can take any one of three forms. The notice of copyright consists of three elements: (1) a symbol identifying that copyright is claimed; (2) the year of first publication, and (3) the name of the copyright author or owner. For example, any of the following three formats are proper:
© 2004, Kevin Wildenstein
Copr. 2004, Wildenstein
(C) 2004, K. Wildenstein
Notice of copyright should be affixed to copies of the work in such a manner as to give reasonable notice to a consumer or user to the claim of copyright. If this placement is impractical, notice should be affixed in any manner necessary to place a consumer or user on notice of the copyright.
The Copyright Registration Process and Related Cost
Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, before an infringement suit can be filed, registration is necessary for works originating in the United States. If registration is made within three months of the first publication, statutory damages (ranging from $750 to $150,000) and attorney’s fees may be awarded to the copyright owner. If registration is not made within three months of the first publication, awards of provable actual damages and/or profits are the only remedies provided under the copyright laws. As you can see, obtaining a copyright registration within the first three months of publication has significant advantages should litigation arise.
In order to register a work with the United States Copyright Office, you must file a properly completed application form, together with a non-refundable fee of $30.00 for each application and a non-returnable “best edition” specimen of the work sought to be registered. The deposit requirement varies with the type of subject matter covered by the registration and whether the work has been published. Some examples include one complete copy of an unpublished work or two complete copies of a published book. In the case of works reproduced in three-dimensional copies (such as a sculpture), the deposit is usually in the form of a photograph or drawing. Generally, registration occurs within three to six months from the date of the application, but the registration is effective from the date the application is received in the Copyright Office.
In addition to the filing fee, preparation and filing of the application fee, one must also consider attorney’s fees. These fees, which include client counseling and advice, usually ranges from $150 to $250 per hour. This firm charges a flat fee rate of $100.00 per application filed, which does include the $30.00 filing fee, but does not include copying fees, applicable tax or postage.
Transferring Your Copyright
Copyright is personal property and is subject to various state and federal laws relating to property ownership, including contracts, inheritance and the transfer of personal property. Similar to the local country clerk, the Copyright Office provides a method for recording a transfer of a copyright. It is recommended that you consult an attorney if a transfer is contemplated.
While this article is quite general in describing copyrights, it serves to inform you of the general principals surrounding the copyright right. Southwest Intellectual Property Services is committed to serving individuals,. small businesses and the corporate community in attaining their business objectives regarding intellectual property law. We look forward to assisting you with the protection of your intellectual property assets.