Copyright

What is copyright?

Copyright is a form of intellectual property protection derived from the U.S. Constitution. Copyright protect original works of authorship fixed in a tangible medium of expression, whether published or unpublished. The work must exist in some physical form. Virtually any form of expression will qualify as a tangible medium.

“Original” means that the work must be independently created by the author. There is no requirement that the work be different, even if it is lacking in quality, ingenuity or aesthetic merit The work requires only a minimum level of creativity attributable to the author claiming the copyright interest.

Protected works include literary, dramatic, musical, and artistic works, such as music, lyrics, printed text, poetry, movies, CD-ROMs, video games, videos, plays, paintings, recorded music performances, novels, software code, sculptures, photographs, choreography and architectural designs. Copyright protection does not extend to facts, ideas, systems, or methods of operation, unless protection of the expression of such things is sought.

What rights does copyright protection offer?

In the United States, copyright protection gives the owner the following rights:

  • the right to reproduce or copy the work;
  • the right to produce derivative works;
  • the right to distribute copies;
  • the right to publicly perform the work; and
  • the right to publicly display the work;

However, not all of these rights apply to all types of copyrighted works.

Can those rights be transferred?

The owner of a copyright may transfer his or her rights in a copyrighted work. The owner may place restrictions on the transfer or may transfer a subset of his or her rights in the work. As examples, the owner may limit the transfer to a specific period of time, or allow the right to be exercised only in a specific part of the country or world, or require that the right be exercised only through certain media, such as hardcover books, audiotapes, magazines or computers.

A copyright owner’s transfer of rights requires a signed written assignment or license. In an assignment, the copyright owner transfers all of his rights unconditionally. In a license,  only some of the rights associated with the copyright are transferred. An exclusive license exists when the transferred rights may be exercised only by the owner of the license. If the license allows others to exercise the same rights being transferred in the license, the license is said to be non-exclusive. The Copyright Office allows buyers of exclusive and non-exclusive copyright rights to record the transfers in the Copyright Office. Interestingly, authors or their heirs have the right to terminate any transfer of copyright ownership 35 to 40 years after the transfer was executed.

When is the work protected?

Copyright protection commences at the moment the work is created and fixed in a tangible form. Registration with the Copyright Office and publication are not conditions for protection. However, registration is necessary if the author wishes to bring suit for infringement. In certain instances, damages and attorneys fees are provided by statute if the copyright owner registers the work within three months of first publication.

What is the extent of protection?

Copyright protection exists in the U.S. and also in foreign countries with which the United States has copyright treaty relationships. The United States does not have copyrights relationships with every country.

Why register a work with the U.S. Copyright Office?

Authors register their original works to make the fact of their copyright a public record.  An author must register the copyright with the Copyright Office before he or she is legally permitted to bring a lawsuit in federal court against an infringer. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Otherwise it is necessary to prove actual damages from the infringment.

How is a work registered with the U.S. Copyright Office?

Registration requires submission of a completed application form, payment of a nonrefundable filing fee of $45, and submission of a nonreturnable copy or copies of the work to be registered. There are different application forms for different types of works. Online registration is not available at this time. However, application forms and instructions are available on the Copyright Office website.  Depending on the particular work, receipt of a Certificate of Registration may occur within 4-6 months of submission.

How long does a copyright last? Does it need to be renewed?

The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. Generally, for works created in 1978 or later, a copyright lasts for 70 years beyond the life of the author, after which the copyright lapses into public domain. If the work is prepared by two or more authors, its copyright lasts for 50 years after the last surviving author dies. For anonymous and pseudonymous works, and for works made for hire, copyright exists for 120 years from the date of creation, or 95 years from the date of first publication, whichever expires first. No renewal is necessary or permitted.

All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. Determining copyright duration for works created before 1978 can be quite complex.

Who owns a copyright?

Generally, copyrights are owned by the authors who create the works. Exceptions exist for works created in the course of employment, works created by an independent contractor that are “made for hire,” and works where the author has sold the entire copyright.

Who owns a copyright in a joint work?

A joint work exists where two or more authors create a work with the intent to combine their contributions into inseparable or interdependent parts. The Copyright Office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyrighted work.

Is it possible to find out who owns a copyright?

The Copyright Office will conduct a search of the registrations, renewals, and recorded transfers of ownership for a fee or a person may conduct a search in person at the Copyright Office for free. Additionally, copyright registrations and documents recorded from 1978 to date are available online.