Copyright Law

A copyright, thought of most generally, is simply that, the right to copy. More specifically, the owner of a copyright in a work has the exclusive right to do or authorize the following:

• reproduce the copyrighted work
• prepare derivative works based on the copyrighted work
• distribute copies of the copyrighted work
• publicly perform the work
• publicly display the work (excluding architectural works and sound recordings), and
• in the case of sound recordings, to perform the copyrighted work
• publicly by means of a digital audio transmission

The Copyright Act of 1976 protects “original works of authorship” that authors fix in a tangible form of expression. The law does not require the fixation to be directly perceptible, as long as a machine or device can communicate it. Copyrightable works include the following categories:

• Literary Works
• Musical Works, Including any Accompanying Words
• Dramatic Works, Including any Accompanying Music
• Pantomimes and Choreographic Works
• Pictorial, Graphic, and Sculptural Works
• Motion Pictures and Other Audiovisual Works
• Sound Recordings, and
• Architectural Works

These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”

Businesses often pay close attention to works made for hire, where the law considers the employer—not the employee—the author. Section 101 of the Copyright Act defines a “work made for hire” as either a work that an employee creates within the scope of their employment, or a work that an independent contractor creates under a written agreement—signed by both parties—that designates the work as a work made for hire.

In general, copyright registration makes a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies

A work that is created after January 1, 1978, is automatically protected from the moment of its creation and is given a term lasting for the author’s life, plus an additional 70 years after the author’s death. For works made for hire the duration of copyright will be 95 years from first publication or 120 years from creation, whichever is shorter.

Notice

The notice for visually perceptible copies should contain all the following three elements:

1. Symbol

The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.” The “C in a circle11 notice is used only on “visually perceptible copies.” The notice for phonorecords embodying a sound recording should contain the symbol ® (the letter P in a circle).

Example: © 2002 John Doe
Example: 02002 A. B. C. Records Inc

2. First Year of Publication

The year of first publication of the work. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article.

3. Name of Copyright Owner

The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

A list of all copyrightable works of the business should be generated. This might include:

• Sales and promotional materials and advertisements
• Product packaging
• Website design and content
• Company logos that are graphic designs
• Ornamental design of company products
• Company manuals
• Other expressive or creative works in fixed form
• Works made for hire by independent contractors

Communicate with an attorney experienced in copyright matters to determine whether any critically important copyrights should be registered with the Copyright Office of the Library of Congress or visit www.loc.gov.

• Immediately and routinely include copyright notices on all copyrightable materials.
• Routinely enter into ’’Work for Hire” agreements for all eligible works created by independent contractors before work begins.
• Have independent contractors assign their copyright in all copyrightable works created for your business that are not otherwise “Works for Hire.”