This document is provided for informational purposes only. The contents of this document do not constitute legal advice.
What is copyright?
The exclusive legal right given to the creator or originator to reproduce, publish, distribute, record, film, perform or broadcast an original creative work (literary, musical, artistic) and to authorize others to do so.
Who does copyright protect?
Original works of authorship, including literary, dramatic, musical and artistic works. Originality does not require quality, skill or artistic merit, as long as the work was created by the author and not copied from another source.
What are examples of original works?
What types of works are not protected by copyright?
NOT PROTECTED BY COPYRIGHT
- Unfixed works not recorded in tangible form, facts, concepts
- Names, short phrases, familiar symbols or designs, numbers
- Processes, systems (e.g., Dewey decimal system).
Who owns the copyright?
Generally, the author or creator owns the copyright. Creators of a joint work automatically share the copyright absent an agreement providing otherwise. An employer owns the copyright to a work if the work is created under a “work made for hire” agreement with the creator. A publisher or a record company may own the copyright if the work is given in exchange for a publishing or recording contract.
Who owns the “creative work” in the employment and independent contractor situations?
Under the “work for hire” legal doctrine, an employer owns the copyright to creative works prepared by an employee.
An independent contractor who produces a creative work for a company owns the copyright even if the company paid for it unless there is an explicit (written) agreement to the contrary.
Whether the creator is considered to be an “employee” or an “independent contractor” depends principally on the degree of control exercised by the “employer”.
How is copyright ownership transferred?
The ownership of a copyright is transferable by (written) assignment, executed by the owner.
What if a company commissions and pays for work to be performed but there is no written assignment?
In the absence of a written “work for hire” assignment, the copyright ownership may remain with the creator, although the company may have an implied license to use the work.
How can a company not own a work it paid for?
Under the U.S. Copyright Statute (17 U.S.C. § 101 et seq.) it is the creator or author of the work who owns the copyright to it. Only the creator has the right to make copies, modifications, changes to the work (“derivative works”). What the company purchases is the one and only one copy of the original work unless it has a written agreement in with the independent contractor-creator which assigns all of the copyrights to that particular work to the company. NB Only certain kind of work qualify as “work for hire” under the copyright statute. For example, it is a common misunderstanding that computer software qualifies as work for hire. Therefore, a company’s agreement with the independent contract should 1) provide that the work is work for hire, and 2) also assign the copyrights to the company.
What is the difference between an assignment and a license?
You transfer your ownership of the copyright to a work to another party. You have no right to publish the work after the assignment.
You retain ownership of the copyright to your work but you give another party permission to use some or all of your copyrights. A license can be exclusive or non-exclusive, time-limited or perpetual.
What is copyright infringement?
Copyright infringement occurs when someone other than the copyright owner “uses” the copyrighted work without permission. Infringement occurs when 1 of the copyright owner’s 5 rights is violated:
1. right to reproduce the work
2. right to derivative works
3. right to distribute the work
4. right to display and publish the work
5. right to perform the work
What if part of the work is used or the work is modified?
Infringement occurs when someone copies the “expression” of a work without permission. The illicit copy need not be exact. There is infringement if the illicit work is “substantially similar” to the copyrighted work.
What acts do not constitute copyright infringement?
- Under the “fair use” doctrine, a copyrighted work can be reproduced for the limited purpose of teaching, review, criticism.
- Use of works considered to be in the “public domain” because the copyright has expired.
- Copyright ineligible works, such as facts, ideas cannot be infringed.
What is the length of copyright protection?
Works published before 1923 are in the public domain. Works published with copyright notice after 1922 but before 1978 are protected for 95 years from the date of publication. If work was created but not published before January 1, 1978, the copyright lasts for the life of the owner plus 70 years.
May I copy a work after its copyright protection has ended?
You are free to republish the original work, add new material to create a new work, recast the work in a new media, remix the work with other works, translate the work into a different language. However, if someone creates a derivative work based on a public domain work, he/she can claim copyright in non-trivial changes made to the original work (e.g., annotations to book in the public domain). You can copy the original public domain material the derivative work is based on, but not the new material which has been added.
Am I required to register a copyright?
Registration of copyrights is not required in order to obtain copyright protection. However, registration is advisable.
What advantages does registration confer?
Advantages Of Copyright Registration
- Established a public record of the copyright holder’s ownership
- Enables the copyright holder to sue infringers in U.S. federal court
- If registration is made before or within 5 years of the work’s publication, registration is evidence supporting the validity of the copyright and the facts stated in the copyright certificate.
- If registration is made within 90 days of publication or prior to infringement of the work, the copyright holder can seek statutory damages and attorneys fees in court. Without registration, award is limited to actual damages and profits.
- Allows copyright holder to record the registration with U.S. Customs to protect against entry of infringing copies into the U.S.
Is a U.S. copyright enforceable outside the U.S.?
Yes. The U.S. belongs to the Berne Convention for the Protection of Literary and Artistic Works, and the Universal Copyright Convention. However, in practice, enforcement of copyright protection via litigation in foreign countries can be difficult; time-consuming, costly.
How is a copyright registered in the U.S.?
You can register a copyright with U.S. Copyright Office through the electronic Copyright Office (eCO) by completing the online application: http://copyright.gov/eco/
You can also register a copyright by submitting a paper application using the Copyright Office’s fill-in forms. The forms are available at: http://www.copyright.gov/forms/