WHAT DOES COPYRIGHT PROTECT?
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Copyright protects original works of
authorship. This includes literary, dramatic, musical and other artistic
works. Copyright DOES NOT extend to titles, names, or phrases, ideas,
systems, processes and information. In other words, a work of authorship
able to be fixed in a tangible medium is subject to copyright protection
provided there is some element of creativity to the work to be
protected.
Copyright protection gives the owner of a copyright the right to
reproduce a work, prepare derivative works based thereon, distribute the
copyrighted work, perform any copyrighted work publicly, and display the
copyrighted work publicly.
COPYRIGHT? TRADEMARK? OR
PATENT? (top)
As set forth above, copyright protects works of authorship fixed in a
tangible medium. However, copyright protection does not extend to all
intellectual property. Rather, your intellectual property may more
properly be protected through trademark or patent law. Trademarks
identify the source or origin of goods or services and protect the
goodwill associated therewith. Patents protect inventions. Further
information on these areas is available through the United States Patent
and Trademark Office.
WHAT IS PUBLICATION?
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The Copyright Act defines publication as the distribution of copies or
phonorecords of a work to the public by sale or other transfer of
ownership or by rental, lease or lending. The offering to distribute
copies or phonorecords to a group of persons for purposes of further
distribution, public performance, or public display constitutes
publication. A public performance or display of a work does not of
itself constitute publication.
Who cares?
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Before the Copyright Act was amended in 1978, copyright was general
secured by the act of publishing a work with notice of the copyright.
Since the notice requirement is no longer mandatory, publication is no
longer as significant in copyright law, but publication is still
relevant in a few respects, such as effecting the deposit requirement
for registration and effecting the date that copyright duration is
calculated. I have included this information because you will see the
publication concept referenced many times throughout this page.
WHEN DOES A COPYRIGHT ATTACH?
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Since the law was changed in 1978, copyright protection exists from the
time a work is fixed in a tangible form. Tangible form means a form that
is directly perceptible or perceptible with the aid of a machine or
devise. For instance, if you sing a song in the shower the song does not
garner copyright protection at this time, because it is not being fixed
in a tangible media, but if you sing it into a tape recorder it is fixed
in a tangible media and so copyright protection would attach.
SO WHY REGISTER?
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Although since 1978 copyright vests at the moment of fixation in a
tangible medium, registration of your copyright with the United States
Copyright Office is important for several reasons:
Registration establishes a public record of your copyright and puts the
world on notice thereof.
Registration is a prerequisite to filing an infringement suit in the
U.S.
If a work is registered within five years of first publication, the
registration certificate will serve as prima facie evidence of the
validity of the copyright and of the facts stated in the certificate.
If a work is registered before an act of infringement occurs, certain
additional damages and attorneys fees are available to a prevailing
litigant. Otherwise only an award of actual damages is available to the
copyright owner (but you still must register before filing your suit).
Copyright registration allows the owner of the copyright to file with
customs to prevent the importation of infringing copies of a work.
This may all seem trivial to you, but the $20 price of registration is,
in my opinion, a wise investment. You will be happy you registered if
your work is ever infringed.
What are you waiting for? Go register!
COPYRIGHT NOTICE
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(do I need to put that little "c" thing on my work?)
No. not anymore. Works published on or after March 1, 1989 are exempt
from the notice requirement, though notice is still highly recommended
as it puts the world on alert that you are claiming a copyright interest
in your work. Also, in the event of an infringement action, an infringer
will be precluded from claiming "innocent infringement" thereby
entitling the copyright owner to a higher damages award.
For works published before March 1, 1989, the use of notice (i.e. © 1988
John Doe) was mandatory. If you published a work without notice it would
revert to the public domain.
Proper form of notice for visually perceptible copies.
This requires The Symbol (©) or the word copyright or the abbreviation
Copr; and the year of first publication of the work and the name of the
owner of the copyright.
What's that P in a circle?
The P in a circle is the copyright notice for phonorecords of sounds
recordings (i.e., the recording itself as opposed to the underlying
composition).
DURATION (how
long does a copyright last?)
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This question is more simple for works created on or after January 1,
1978. The Sonny Bono Copyright Term Extension Act was signed into law on
October 27, 1998. This Act extends the term of copyright protection for
twenty years. Thus, for works created on or after January 1, 1978, the
duration of the copyright will last for the life of the author plus
seventy years (i.e., seventy years after the author's death.) The
copyright in a work created by one or more people lasts for seventy
years after the last surviving authors' death. For works for hire,
anonymous and pseudonymous works, the copyright term is ninety-five
years from first publication, or one hundred-twenty years from creation,
whichever is shorter.
Works published before 1978
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For works published before January 1, 1978, this question gets a little
trickier. Generally speaking under previous law, a copyright was secured
either on the date of publication or a work, or the date the work was
registered in unpublished form. In both instances, the term of copyright
was twenty eight years from the date the copyright was secured.
Thereafter, the copyright could be extended for a second term of twenty
eight years if a renewal was applied for within the last year of the
first term. If not renewed, the copyright expired at the end of the
first twenty-eight year term.
Works renewed before 1978
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Works that were originally copyrighted before 1950 and renewed before
1978 were granted an extension to their renewal term by an act of
Congress (recently again extended). Thus, the renewal term now lasts for
sixty-seven years (for a total of a ninety-five year copyright term.)
Things get tricky for works that were in their first term when the law
changed in 1978. Works copyrighted between January 1, 1950 and December
31, 1963 still had to be renewed in order to be protected for a second
term. If renewed, the second term was extended to sixty-seven years, for
a total of a ninety-five year term, see above.) If renewal was not
applied for, the copyright protection ended on December 31 of the twenty
eight year.
Works copyrighted between January 1, 1964 and December 31, 1977 were
automatically renewed for a second term. Thus, no registration of the
renewal was required.
Pre-1978 works that
remain unpublished (top)
Works that were created but not published or registered before January
1, 1978 are automatically given copyright protection. The term of
protection is calculated the same way as under the current law, i.e.,
life of the author plus seventy years (or the 95/120 year terms for
works for hire, anonymous and pseudonymous works). However, in no case
will a copyright in any pre-1978 unpublished work expire before December
31, 2002, and if the work is published before that date, the term will
extend for another forty five years (through 2047).
For more information on the extended copyright terms, please see the
Copyright Office Circular New Terms for Copyright Protection.
WHAT IS A WORK FOR HIRE?
(do I own it or does that guy who paid me?)
Generally speaking, the person that creates a work is the author, and
hence, the owner of that work. However, when a work is made for an
employer (within the scope of employment), the EMPLOYER, not the
employee is considered the author.
This seems relatively simple, but things can get a little sticky when
determining whether someone is an employee or not. The law of agency is
used to determine whether someone is an employee. For more information
on works for hire and determining whether a work is a work for hire,
please refer to Copyright Office Circular 9.
In addition, works that are not created by employees, but which are
commissioned, can qualify as a work for hire. In such a case the
commissioner receives the ownership interest in the work rather than the
artist. The Copyright Act defines a commissioned work as a work for hire
in situations when the work is "specially ordered or commissioned for
use as a contribution to a collective work, as part of a motion picture
or other audiovisual work, as a translation, as a supplementary work, as
a compilation, as an instructional test, as a test, as an answer
material for a test, or as an atlas." There must also be a written
agreement signed by the parties that the work shall be a work for hire.
Thus, only the foregoing types of commissioned works, when a written
agreement exists, can be deemed works for hire. Other types of
commissioned works cannot. (This type of situation frequently comes into
play in the motion picture industry with writers, directors, etc. The
producer becomes the owner of the copyright).
WHAT IS A DERIVATIVE WORK?
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A derivative work is a work that is based on, or incorporates, one or
more already existing works. Examples of derivative works include
multi-media works using preexisting elements, screenplays adapted from
books, new musical arrangements, art reproductions or any other work
that modifies, is derived from or elaborates upon a preexisting work. To
be copyrightable in its own right, a derivative work must contain enough
elements of originality to qualify as as new work. Further, a copyright
holder in a derivative work will only obtain a copyright interest in his
original contribution, not the underlying, preexisting elements.
It is extremely important to note that only the copyright owner of the
underlying work, or one who has been granted permission to do so, may
prepare derivative works. Unauthorized derivative works violate a
copyright holder's exclusive rights under the copyright act.
For more information on derivative works, please see Copyright Office
Circular 14.
HOW DO I REGISTER MY
COPYRIGHT?
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Click Here to send me an
email saying that you would like to hire me to be your attorney and
register your copyright for you.
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ALSO SEE:
WHAT'S LISTED:
OTHER AREAS: Wills, Trust & Estate Planning:
Trademarks:
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