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Copyright Protection: A Closer Look
So, your creative juices have percolated to the surface and you have created your opus. Now you want to publish it and enjoy the royalties and recognition you rightfully deserve. What do you do about the people who will recognize your genius, and, instead of giving you credit, plagiarize or incorporate your work into their own without your permission?
Answer: register your copyright with the U.S. Copyright Office (www.copyright.gov) prior to publication.
What may be copyrighted?
First of all, some examples of works which may be protected by copyright include: computer programs, menus, graphics, advertisements, television or radio commercials, brochures, videos, web sites, jingles, style guides, operating manuals, recipes, choreography, fabric designs, music, sculptures, jewelry designs, architectural works, sketches, literature, crafts, poetry, flow charts, movies, photography, etc. Essentially, if you create it, you may copyright it.
Second of all, with three exceptions, the author of the work is the copyright owner. Authors are the creators of works: writers, poets, musicians, choreographers, composers, artists, software designers, sculptors, photographers, movie producers, architects, etc. The three exceptions to the general rule that the author owns the copyright are:
- If the author is an employee and creates the work in the course of employment, the employer owns the copyright;
- If someone other than the author commissions the work, and the parties sign a work made for hire agreement, the commissioning party will own the copyright if the work falls within a category recognized by federal law as qualifying for works made for hire; and
- If the author sells the copyright, the buyer owns the copyright.
It is important to note that copyright protection applies automatically to all types of original expression. Three crucial things to recognize: (1) copyright only applies when your original expression is "fixed in tangible form," for example you might fix it on audio or video tape, computer disk, clay, canvas, or paper; (2) it must be original, i.e. not copied; and (3) it must have an element of creativity. For example, the first white pages, although original in that they, for the first time, listed available names and corresponding telephone numbers in one place, were not creative because the only process was to arrange the names alphabetically next to the right phone number - not very creative. While no threshold amount of "creativity" is recognized, at least some intellectual processing must have informed the creation.
Registering the copyright
While copyright protection does automatically attach to your original creative work once you have fixed it in tangible form, registering the work with the U.S. Copyright Office has several advantages, discussed below. Notably, the ideas behind the work are not available to copyright, only the expression of the idea. For example, you may incorporate the ideas contained in books into your work, but if you use the actual expressions contained in the book (i.e., the book's phrases, pictures or other original expressions), you must adhere to copyright laws and ask permission of the copyright owner. For another example, if you write a book about a particular accounting principle, you may obtain a copyright to protect your book, but not the accounting principle about which the book relates (although you might be able to patent the particular accounting process if sufficiently novel and non-obvious; see the page on patent protection for more information).
Registering a copyright requires simply filing a form with a sample (not an original) of your work with the U.S. Copyright Office. Currently, it costs $45 per work to register, or $35 if you register online. All registration forms are available at the U.S. Copyright Office website: www.copyright.gov. In the U.S., you must register your copyright before you may bring a lawsuit against an infringer.
Federal law (17 U.S.C. § 106) grants the copyright owner the exclusive right to (1) reproduce, (2) distribute, (3) display, and (4) translate or make derivatives of the work. A copyright owner may independently transfer each of these four rights to different people or organizations. This independent transfer of the rights granted by registration is known as licensing; you may grant a license to one company to reproduce your work, a separate license to another company to distribute it, and so on.
A folio of work may be registered as an unpublished collection with one form and one fee if (1) assembled in an orderly form; (2) the combined elements bear one title identifying the collection as a whole; (3) the copyright claimant for the collection as a whole and the individual elements is the same; and (4) the individual elements are by the same author or, if by different authors, at least one of the authors has contributed copyrightable authorship to each element.
Benefits of registration
One advantage of timely registration (either within three months of publication or before someone infringes on your copyright by copying or using your work) is the greater ease in suing and recovering from the infringer.
There are two types of copyright infringement: innocent and willful. Innocent copyright infringement happens when someone uses your work without notice that you have copyrighted it. Placing copyright notice in the form of " (year of publication) (author or copyright owner's name)" conspicuously on your work puts the world on notice that you are the copyright owner of the work. For example, a typical copyright notice would be " 2009 Thoreau" placed at the beginning of a book where it is easily seen and noticed. Without such notice, potential infringers might assume that your work is in the public domain and "innocently" infringe on your rights to exclusive control over the work. For such innocent infringement, timely registration makes available to you damages arising from federal law ranging from $750 to $30,000 for each work which is innocently infringed.
Infringement is presumptively willful when your work conspicuously displays the copyright notice described above and you have timely registered it with the U.S. Copyright Office. In other words, with conspicuous display of the copyright notice and timely registration, a court will assume that another's wrongful use of your work is willful and they must prove that it was not willful. In that case, registration gives rise to a presumption that your copyright is valid and allows you to recover up to $150,000 for each work infringed, and possibly attorney fees, without proving actual monetary harm.
Duration of copyright protection
Once registered, a copyright is generally valid for the life of the author plus 70 years. For anonymous works and works for hire, the term is 95 years from the year of first publication, or 120 years from the date of creation, whichever expires first. Upon expiration of the copyright term, the work enters the public domain and anyone may freely use it.
A note on "fair use"
Federal law allows use of copyrighted material for various purposes which do not violate the law. Such uses include criticism of the work, comments on the work, news reporting relating to the work, using the work for teaching or educational purposes, scholarship or study of the work, parody of the work, and researching the work. Federal law (17 U.S.C. § 107) sets out four factors to be considered in determining whether or not a particular use is "fair use":
- The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
There is no clear demarcation between fair use and infringing use - no set number of words, lines or notes that may be used without permission. Furthermore, simply acknowledging the source of the copyrighted material does not substitute for obtaining permission of the copyright owner. To be safe: if in doubt, seek permission.
Note that this page and the other pages on copyright, trademark, and patent protection are intended not as legal advice, but, rather, as jumping off points to aid your decision to retain an attorney or do further research on your own. Now go be creative!