Copyrights

Copyright protects various types of original works of authorship, such as literary works (fiction or non-fiction prose, poetry, computer programs, catalogs and other advertisement text, computer software, etc.); musical works (instrumentals, songs, advertising jingles, etc.); dramatic works (plays, operas, skits, etc.), pictorial, graphic, and sculptural works (photographs, drawings, maps, cartoons, etc.); motion pictures and other audio-visual works (movies, television shows, games and other interactive media works, etc.); and sound recordings (recordings of words, music, or other sounds). A great deal of the works which appear on the Internet are combinations of these types of works. Such combined works are commonly referred to as “multi-media” works.

Copyright arises automatically when an “original” work is “fixed in a tangible medium of expression.” Originality means that the author created the work and didn’t copy it from anything else. Only minimal creativity is required. Novelty, uniqueness or artistic merit is not required. Moreover, a work can include some “preexisting” material(s) and still be considered to be original and hence copyrightable. However, the copyright on the new work only covers the original material added by the author, not any of the preexisting material(s). A work is “fixed in a tangible medium of expression” when made sufficiently stable to permit it to be perceived, reproduced or otherwise communicated for a period more than transitory duration. Thus, when the Hypertext Markup Computer Language used to create an Internet web page, is recorded on the hard drive of the server, it is fixed, and a copyright on that web page comes into being. In fact, even placing a work in a computer’s RAM is considered to be of sufficient duration to constitute fixing.

Any copyright created in the United States can be enforced in court if there is registration of the copyright claim in the U.S. Copyright Office. Only the author or the owner of the copyright is permitted to register the copyright. The registration of the copyright requires the filing of the appropriate copyright form, a payment of $30.00, a deposit of one copy of the work, if unpublished, and two copies of the work, if published, in the Copyright Office. Assuming that the formalities are met and it appears to the Copyright Office that the work is copyrightable subject matter, a Certificate of Registration will be issued to the copyright owner (the “claimant”).

Copyright protects against copying the “expression” in a work, as opposed to the “idea” of the work. “Expression” is not necessarily limited to the exact words, graphics or computer code used, but can be some level of abstraction below the mere concept of the work. Thus, the difference between “expression” and “idea” may be one of the most difficult concepts in copyright law to determine, and is particularly dependent upon the facts of the situation on a case-by-case basis.

The owner of a copyright has five exclusive rights in the work. Those rights are: the right to copy, duplicate, transcribe or imitate the work in a fixed medium (the “Reproduction” right); the right to modify the work to create a new work, called a “derivative work” (the “Modification” right); the right to distribute copies to the public by sale, rental, lease, or loan (the “Distribution” right); the right to recite, play, dance, act or show the work at a public place or to transmit it to the public (the “Public Performance” right); and the right to show a copy of the work directly or by means of film, slide, or television image at a public place or to transmit it to the public (the “Public Display” right). Anyone who violates any of the exclusive rights of the copyright owner during the term of the copyright is an infringer.

The (duration) term of a copyright depends upon who created the work, when it was created, and when it was first publicly distributed (i.e., “published”). The term for works created after January 1, 1978, is the life of the author plus seventy years, unless the work is a “work made for hire.” The term of a work made for hire is either 95 years from first publication or 120 years from the date of creation, whichever expires first. A work made for hire is generally deemed to be a work created by an employee within the scope of his or her employment. The employment relationship can be found to exist is various circumstances and is largely fact dependent.

Generally, the copyright is owned by the person(s) who authored the work, unless it is a work made for hire. In that case the author (and owner) of the work is the employer. The copyright law also includes another form of a work made for hire. This applies to nine specific types of specially commissioned works, e.g., a contribution to a collective work, an audio-visual work, a test, etc. Specially commissioned works will be deemed to be works made for hire and owned by the commissioning party if there is a written agreement stating that the work is to be so treated and is signed by the creator of the work.

A copyright owner whose work has been infringed can recover actual damages or, in some cases, statutory damages. Statutory damages may be in the range of $750 to $30,000. If the infringement is deemed innocent the damages may be reduced, but in no case less than $200. If, however, the infringement is deemed willful statutory damages may be assessed as high as $150,000 per infringement. In addition the courts can grant injunctions to prevent or restrain further infringement, and can order the impoundment and destruction of the infringing copies. If the work was registered in the Copyright Office prior to the infringement or within 90 days of first publication, the copyright owner may also be reimbursed for his/her/its counsel fees incurred in a successful suit against an infringer. Thus, infringement of a copyright bears potentially substantial liability for the infringer.

Securing ownership of the copyright(s) or a license to use a copyrighted work, will avoid the danger of infringement. Ownership in the copyright can be accomplished by virtue of a written document, called an “assignment.” This document must be signed by the transferor and can transfer all or only some of the intellectual property rights in the work. A license is merely the right to use the copyright and is typically much more limited than an assignment. A license need not be written, although it is certainly a good idea to have it memorialized in a document signed by both parties.

One doesn’t need a license to use a copyrighted work in three circumstances: (1) if the work is already in the public domain; (2) if the use is deemed to be “fair use”; or (3) if the material of the work used is factual or an idea. Works in the public domain are those works whose copyrights have already expired, or which have entered the public domain by failure of the copyright owner to include the required copyright notice. Under the 1909 Copyright Act copyrights had a term of 28 years, and could be renewed for another 28 years. After the expiration of the original term (or the renewal term, if applicable) the copyright expired and the work entered the public domain. Under the 1976 Copyright Act, and which is applicable now, the duration of a copyright, as noted above, is the life of the author plus seventy five years unless the work is a work made for hire. However, under the 1976 Act, publication of a work after January 1, 1978, (but prior to March 1, 1989) without the required copyright notice placed the work in the public domain, except for some very special circumstances excusing the failure. The required copyright notice consisted of three elements, © , the name of the copyright owner, and the year date of first publication. Since March 1, 1989, use of a copyright notice is optional, although still advisable. Thus, a work created after that date is covered by copyright, even if it doesn’t bear a copyright notice when published.

Fair use is a defense to copyright infringement and is frequently found to exist if the use is for critical, comment, news reporting, teaching, scholarship or research. The determination of whether the use is fair or not is accomplished on a case-by-case basis, taking into account the numerous factors. Those factors are: the purpose and character of the use (courts are more likely to find the use is fair where it is for non-commercial purposes); the nature of the copyright work (courts are more likely to find the use is fair where the copied work is factual); the amount and substantiality of the work copied (courts are more likely to find the use is fair where what is used is a small amount, qualitatively, of the protected work); and the effect on the potential market for the work (courts are more likely to find the use is fair where the new work doesn’t substantially reduce, e.g., act as a substitute for, the market for the copyrighted work).

So-called “moral rights” of artists are not protected by copyright. However, certain works of visual art are protected federally under the Visual Artists Rights Act (VARA). In particular, VARA limits modification of certain works of fine arts, e.g., a single work or no more than 200 consecutively numbered copies, and the use of the artist’s name without permission of the artist. VARA does not apply to “works made for hire.” An action for a violation of VARA can be brought by the artist, even if the artist no longer has copyright rights in the work, e.g., the artist has sold or otherwise transferred his/her rights in the work.

Caesar Rivise attorneys routinely assist clients in all aspects of U.S. and foreign copyright protection for a broad range of literary, computer software and artistic works. We draft commercial license agreements and assignments, as well as prepare opinions regarding copyright fair use and infringement. Clients rely upon us to protect their copyrights through litigation and defend against allegations of copyright infringement.