Copyright Basics

The term “intellectual property” generally means creations of the mind that are legally protected usually by copyrights, trademarks or patents but also may qualify for protection as trade secrets.[1]  In the United States, copyrights, trademarks and patents are generally the subject of federal laws and regulations, while trade secret protection is provided under the Uniform Trade Secrets Act as adopted by most of the states.  The nature and scope of protection afforded to the different forms of intellectual property differ. 

This paper provides a general description of the protections available in the United States under the Copyright Act of 1976 as amended (U.S. Code title 17), and how individuals and organizations can obtain and enforce rights in their copyrights. Copyright law can be complex and the paper is not intended, nor should it be relied upon, as a comprehensive statement of United States copyright law, or as legal advice. If you have a copyright issue, we advise you to consult with a lawyer.

            Subject Matter and Scope of Copyright

In the United States federal rights in copyrights are governed by the Copyright Act of 1976 as amended (U.S. Code title 17). Copyright protection covers original works of authorship fixed in any tangible medium of expression from which such works can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works (including software and automated databases);

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.[2]

Copyrights differ from trademarks and patents in that copyrights come into being without any filing with, or approval by, a government agency.  A copyright exists from the time the original work of authorship is fixed in a tangible medium of expression, which may include paper or various electronic media.  As discussed further below, a copyright may be registered with the Register of Copyrights and such registration conveys the right to enforce the registered copyright in a court of law.

Copyright in a work of authorship immediately becomes the property of the author or authors who created the work.  The authors of a joint work are co-owners of the copyright in the work, absent an agreement to the contrary. Only the author(s) or those deriving their rights through the author(s) can rightfully claim copyright.  However, a work prepared by an employee within the scope his or her employment is deemed a “work made for hire,” and immediately becomes the property of the author’s employer.  A work made for hire may also immediately come into being if the work is specially ordered or commissioned for use in any of nine categories[3] and the parties expressly agree in a signed written instrument that the work shall be considered a work made for hire.  The nine categories are much narrower than the eight categories of works of authorship set out in Section 102(a).  For example, stand alone literary works, including novels and software, would not generally fall into any of the nine categories, but any works for use as a contribution to a collective work or as a compilation would do so.

It is important to note that copyright protection for an original work does not extend to any idea, procedure, process, system, method of operation, concept, principle or discovery appearing in such work.[4]  In other words, copyright does not protect ideas or information per se, only the form or manner in which they are expressed.  Protection of novel inventions is the province of patent law, not copyright law.

Copyrighted works may include or be based on preexisting material.  This occurs with compilations and derivative works.  A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.[5] A special type of compilation is a “collective work,” defined as a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.[6]  In contrast, as the term suggests, a derivative work is one based on one or more preexisting works and involves the preexisting work(s) being recast, transformed or adapted. Examples include translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, and condensations. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”[7] The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. [8] 

Generally the owner of copyright has the exclusive rights to reproduce, prepare derivative works based on, and to distribute, copies of the copyrighted work, and where appropriate, to perform or display the copyrighted work publicly.[9]  The owner may authorize others to perform activities within the scope of his or her exclusive rights.[10] However there are limits on exclusive rights of a copyright owner which serve as defenses to infringement.[11]  The most frequently relied upon limit is the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.[12]

Copyright Ownership and Transfer

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.[13] Copyright in a work vests initially in the author or authors of the work.[14] The authors of a joint work are coowners of copyright in the work.[15] In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.[16]  Copyright in each separate contribution to a collective work vests initially in the author of the contribution.[17] In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.[18]  The ownership of a copyright, or any of the exclusive rights comprised in a copyright, may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.[19]


Preemption and Duration

Effective January 1, 1978, the Copyright Act preempts common law or statutes of the states with respect to legal or equitable copyright rights defined in the Act.[20]

Copyright in a work created on or after January 1, 1978, or in a work created before January 1, 1978 but not theretofore in the public domain or copyrighted, generally subsists from its creation and endures for a term consisting of the life of the author (or in the case of joint works, the last surviving author), and 70 years after the author’s death.[21] If the work was published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.[22]

Copyright Notice and Registration

Whenever a work protected under the Copyright Act is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.[23]  While a copyright notice on publications is not required to enforce a copyright, if a complaint notice appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then generally no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.[24]

At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office a statutorily required deposit,[25]together with the application[26] and fee[27]duly required by the Copyright Office.[28] Such registration is not a condition of copyright protection.[29]

In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.[30] The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.[31] The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office.[32]

Generally, no civil action for infringement of the copyright in any United States work[33] shall be instituted until preregistration or registration of the copyright claim has been made in accordance with the Copyright Act.[34] In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.[35]

A certificate of registration satisfies the requirements of the Copyright Act, regardless of whether the certificate contains any inaccurate information, unless the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.[36] In any case in which inaccurate information is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.[37]

Copyright Infringement and Civil Remedies

Generally, the legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of the Copyright Act, to institute a legal action for any infringement of that particular right committed while he or she is the owner of it.[38]  Civil remedies for infringement may include injunctions; impounding and disposition of infringing articles; damages and profits; and costs and attorneys’ fees.[39]  Generally, an infringer of copyright is liable for either (1) the copyright owner’s actual damages and any additional profits of the infringer; or (2) statutory damages.[40] 

The copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.[41] For the purposes of an award of statutory damages, all the parts of a compilation or derivative work constitute one work.[42]  For a case where the plaintiff proves willful infringement, the court in its discretion may increase the award of statutory damages (for any one work) to a sum of not more than $150,000. [43]In a case where the infringer proves that he or she was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages (for any one work) to a sum of not less than $200.[44]

In any civil action under the Copyright Act, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof.[45]Generally, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.[46]

However, no award of statutory damages or of attorney’s fees, shall be made for any infringement of copyright in an unpublished work commenced before the effective date of its registration; orany infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.[47]

© 2015 Richard S. Toikka, All rights reserved