The creation of a work in a fixed tangible medium that encompasses literary, dramatic, musical, artistic, motion pictures, screen plays, computer programs, novels, sculptures, songs, sculptures, songs, fabric designs, photographs, paintings, sculptures, dolls, jewelry, sound recordings, brochures, leaflets, and generally most items that are not solely functional or utilitarian in nature.  

A copyright can also be a compilation of items in the public domain, or of copyrighted items (with permission from the owner) or a combination of public domain items and copyrighted items in the compilation.

 

Copyright protection does not cover any underlying ideas or facts, only the expression in a fixed tangible form.  Also if the creative work is very short i.e.; initials, a word, a slogan, or a phrase, the creative content is to minimal to be copyrightable.  Also, methods, systems, principals, layouts, coloring, and lettering are not copyrightable.     

 

Also, copyright is not available for ideas or procedures for doing, making, or building things, nor scientific or technical methods, or discoveries, business operations, or procedures, mathematical or other formulas, some of which may qualify for patent protection that have a definite functional end result.   However, a series of phrases for instance may qualify under copyright law to be a “compilation” as defined above, in addition, initials, words, phrases, or slogans may qualify for trademark protection.

 

Copyright protection is strongest where the creative content is distinctive and unique and more fiction based versus fact based creations, which have a lower level of protection.  For instance, a drawing that is more abstract or cartoonish, (more creative content), i.e. not closely representing what exists in nature, or a photo that has unique settings, lighting, backgrounds, poses, and the like (again more creative content) is stronger than a plain photo of something that exists in nature.  Another example is a book that is pure fiction (high creative content) has a stronger copyright than a book that is mostly factual based.

 

A fixed tangible medium is work that is in a form that may be communicated to another, such as:  written down, recorded, books, manuscripts, paintings, discs, and films.   

 

Like trademarks and patents a copyright is only protected on a country-by-country basis.  There is a later question on foreign copyrights that will answer how to obtain foreign copyright protection.  

  

The creator of the work can be an individual, who is the owner, however, a work created by an individual within the scope of their employment is considered a “work for hire” where the employer is the owner.

 

Once a work has been created, a title may be chosen to identify the work.  Depending on the nature of the work the title can have varying importance, for example on a movie, a title can be significant for its sales and marketing value and it will be important to make sure that no legal conflicts arise from the use of the title name.  Thus a title search can be done to “Clear” the title name to minimize the future infringement claims risk as no one wants to have to change a title halfway through their promotional scheme.

 

This applies if existing copyrights are used as a basis for creating new works, otherwise known as “Derivative” works, with the existing copyright known as an “Underlying” work.  As an example, if someone wanted to make a movie based on a book, the derivative work is the movie and the underlying work is the book.  Or a drawing that is put into another medium, such as putting the drawings that was originally on paper onto a ceramic tile, or putting a book into an online internet format (new medium), or in the case of a song wherein the notes and lyrics are on paper there is a “performance right” for singing the song (again a new medium), or even a “performance right” for a book, wherein the book is used to teach a class based on the book, or likewise a “performance right” for a written play.  All of the derivative rights require separate permissions from the copyright owner.

This would require a search of who owned what rights to the affected underlying copyrights to enable the seeking of the required permissions, licenses, etc.  This type of search also helps prevent fraudulent representations as to ownership of copyright rights.  As an example, if someone wanted to make a movie based upon a given book, a search would have to be done to ascertain if prior movie rights to the book had been granted and conversely once a copyright is created the owner would have to decide the nature and granting of derivative rights in their own copyright.

 

Although in United States law you have an automatic copyright on a work you create at the moment it is created, federal copyright registration prior to publication (putting the copyrighted material into the public domain) or at least within 3 months after publication is highly recommended for the following reasons:

 

Provides documentation of ownership by you making a public record of your work and who owns it, this also applies to ownership changes through time, meaning that all transfers of rights should be recorded in the copyright office, much the same as real property publicly records the chain of title ownership.

 

Federal copyright registration is mandatory prior to initiating an infringement action. If you wait to register when an infringement action is imminent, it will cost you more to register on an expedited basis.

 

Registration at the time of creation, prior to publication, gives another important bonus in an infringement action, as additional recovery damages are allowed being statutory damages and possibly attorney’s fees and court costs if you win.  Compare this to a late federal registration of copyright (when an infringement action is imminent) where you are only entitled to actual damages, which can be difficult to prove that you suffered from the infringer. The actual damages may be substantially less than the statutory damages, attorney’s fees and court costs that you may be entitled to if you are successful in the infringement action for early federal copyright registration.  

 

The result of all this is that it may be uneconomical to bring an infringement action if you had a late federal copyright registration, thus allowing the infringer to essentially steal your copyright with no consequences and could result in you losing derivative rights in that copyright.

 

Federal copyright registration also means that your copyright and its ownership will show up in others search efforts at the copyright office, thus putting them on public notice that you own a particular copyright.

In addition, others searching and who find your federally registered copyright may result in them desiring to pay you for permission to use your copyright, thus federal copyright registration is a potential way to generate business opportunities.

 

Federal copyright registration is relatively easy and inexpensive compared to patents or trademarks.

 

The criteria for accepting copyright registration by the U.S. Copyright Office is to check for matters of proper form in your completing the application requirements and that your creative work deposit is copyrightable subject matter, note that there is no search and examination at the Copyright Office for a similar previously federally registered copyright, thus your federally registered copyright could be close to another federal copyright registration.  Similar federal copyright registrations can co-exist if they were both independently created, however, if one of the federal copyright registrations had access to the other copyright prior to creation, then a misappropriation could have occurred causing potential invalidation of the federal copyright registration that used the other copyrighted materials.   

An unfavorable decision by the Copyright Office on matters of form or copyrightable subject matter is appealable at 2 levels within the Copyright Office, and then to the federal court system. 

Response time to Copyright Office actions in normally 120 days.

 

For works published after March 1, 1989 a notice has been optional, however there are many reasons to have a proper notice on all copyrightable works.  Note that the notice should be put on the work immediately after its creation, even prior to registration. 

 

The reasons for a proper notice are as follows:

Gives proper legal notice to possible infringers of your copyright, and helps to eliminate the infringer defense of innocent infringement meaning that there was no notice that the work was copyrighted and has a deterrent effect on potential infringers.

The notice gives better international protection, as the notice is required in some countries and not in others, so it is best to have the notice always in place.

The burden on the copyright owner is minimal to put a notice on the work.

 

The minimal requirements for the actual notice are:
The familiar circle “c”  ©
The year the work was published.
The name of the author or copyright owner.

It is a good idea to also include in the notice the following for better international protection.
Add the word “Copyright”
Add “All Rights Reserved”

 

A statement about the rights associated with the copyright notice to reinforce the non-copyright owner’s obligations to the work as follows:

“Except as permitted under the Copyright act of 1976, no part of this work may be reproduced in any form or by any electronic or mechanical means, including the use of information storage and retrieval systems, without permission in writing from the copyright owner.  Requests for permission should be addressed in writing to [copyright owners name and address].”

 

Yes, to avoid handling excessive requests for written permission for using the copyright, the owner can grant in this same note a “conditional” permission for a specified use.  An example would be: “Permission is granted to reprint the [portion] of this work to [who can reprint] for the sole use of [limitation of use] with the above copyright notice included on the reprint.”

 

Once the copyright term is extinguished the work has entered into the public domain, anyone is free to use the work without permission.  Note that whether a copyright is in the public domain is determined on a country be country basis, meaning that a copyright could be in the public domain in some countries but not others.  A search is required to ascertain the copyrights status at any given time.   
However, even if the copyright has expired, proper source credit must always be given for the materials published, or you could be committing plagiarism.

 

The rights to copy, reproduce, publish, publicly perform, record, display, and make new versions of the work.

 

A copyright work is original if it is not copied from another, in other words if two individuals completely separately and independently created the same work, they would both have a valid copyright in theory, of course for two people to create an identical work independently is unlikely.  The key issue in proving copyright infringement is that the infringing party had access to the original copyrighted work.  Compare this to the broader scope of patent protection wherein if an infringer makes the same product that is patented, they are infringing even if they completely created the product independently.

 

Definitions:
Plagiarist-one who copies works that are in the public domain under their own name and publishes as such.   A plagiarist is not normally liable for copyright infringement unless a separate contractual issue precludes it. 

Infringement-one who publishes another’s copyrighted work under the copyright owners name without permission.   

 

Requirements for infringement:

Valid copyright on the work.

Actual copying of the work, shown by access to the copyrighted work by the infringer and substantial similarity.  Note that you can insert tracers, for example unique errors only you know about into the material.

Improper use of the work

Cause of action brought within 3 years of knowledge of.

 

Infringement defenses:
Merger-this is where a semi factual copyrighted work must be used in a new work for a new expression.  In other words there is no other way to get a point across other than to use another’s copyrighted material, however this would only apply to a fact based copyright, hence the weaker protection.  In the case of highly fictional works, there is always another way to state an expression, and thus the Merger doctrine would not apply.

Fair use-is use of the copyrighted material for educational, scholarly, or non-profit purposes, see following question for more detail.

Independent creation of the work.

Material copied was in the public domain.

 

Authorization was given.

 

This is one of a group of copyright infringement defenses, fair use-is use of the copyrighted material for educational, scholarly, criticism, commentary, news reporting, research, parody or satire (that is highly obvious), or non-profit purposes, which is allowable depending upon other conditions such as; purpose and character of the alleged “fair use” (commercial or non commercial), the strength of the copyrighted material (being high if fictional in nature or being low if factual in nature), how much of the copyrighted work in used, how similar the alleged fair use work is to the copyrighted work, and the commercial effect of the alleged fair use work upon the copyrighted work. 

 

If you are in doubt about whether your use is fair use, it is always best to seek permission first, to help prevent litigation and always give source credits.

 

This is another copyright infringer defense called “Merger”-this is where a semi factual copyrighted work must be used in a new work for a new expression.  In other words there is no other way to get a point across other than to use another’s copyrighted material, however this would only apply to a fact based copyright, hence the weaker protection.  In the case of highly fictional works, there is always another way to state an expression, and thus the Merger doctrine would not apply.

 

A United States (U.S.) Copyright registration protection stops at the U.S. borders, however, there are several international treaties such as the “Berne Convention”, General Agreement on Tariffs and Trade (GATT) relating to Trade Aspects of International Property Rights (TRIPS), and the “Universal Copyright Convention” (UCC) that help ensure industrialized country copyright protection. 

 

Berne Convention
The Berne Convention was joined by the U.S. on March 1, 1989, and is the most important copyright treaty as it covers the U.S., Canada, Mexico, most of Western Europe, Japan, and Australia, and basically provides for reciprocal rights on copyrights between countries. For works published before March 1, 1989, a simultaneous publication was required in a Berne Convention country, for example Canada, to obtain the benefit of the Berne Convention.   The Berne Convention provides minimal copyright protection, in every member country for someone having a copyright in one member country. 

Some countries have special rules regarding specific notices, registrations, and other requirements that can result in added protections.  The best method of compliance is to determine the desired countries for protection and use a local agent in that country to understand if the added protections would be worth the extra effort and cost.  

The minimal Berne Convention protections include:

 

Copyright duration of at least the author’s life plus 70 years.

 

Granting of “Moral” rights, this is basically giving the original author control over the work even if it is sold or licensed to prevent any distortion or mutilation of the work the could damage the authors reputation.  Note that “Moral Rights” in copyright law do not exist in the U.S., except for the visual arts. 

 

Fair use exception covering education and  newsworthy events.

 

Universal Copyright Convention

The U.S. joined the UCC on September 16, 1955 and applies to works published from this date to the signing of the Berne Convention, which takes priority over the UCC.  The UCC allows member countries to impose formalities on copyright registration unless a proper notice (supra) is given, and only gives a copyright duration of the author’s life plus 25 years.

 

Trade Related Aspects of Intellectual Property Rights

TRIPS basically requires GATT member countries to comply with the Berne Convention, however, not including Moral Rights. 

 

A number of third world countries such as Iran, Iraq, Ethiopia, etc. have no copyright agreements and would require individual copyright registration in those countries.  Note that more countries are signing these treaties through time, thus an updated check in the countries desired for registration is always required at the time of registration.

 

See budget portion of the website for copyright costs.