Copyright is a constitutionally mandated protection given to creators of “original works of authorship.” In order to “promote the progress of science and the useful arts,” the United States Constitution empowers Congress to establish a system of copyrights “by securing for limited times to authors . . . the exclusive right to their respective writings.”
What Is Protected by Copyright?
A copyright provides the owner with protection for the particular expression of a thought or idea, including literary, artistic, musical, and electronically reproduced works but not for the idea itself. In other words, a copyrighted work is protected and cannot be copied, but the underlying ideas, functions or facts on which the expression is based can be freely copied or otherwise disseminated. Copyright owners have the “exclusive right to reproduce the copyrighted work, to prepare derivative works based on the copyrighted work, to distribute copies to the public by sale, rental or lease, the right to perform the work in public and the right to display the work in public.” For example, an author can receive copyright protection for a book which describes a scientific procedure. But this protection extends only to the unique expression embodied in the book, and not to the procedure described. The public is free to follow the procedure or use the scientific facts enumerated in the book, without infringing upon the author’s copyright.
The distinction between an idea or fact and the expression of that idea or fact is an important concept in copyright law. By protecting only expression, copyright law balances the interest in providing authors with protection for their creative works, while providing an equally strong interest in allowing a free exchange of information and ideas.
The current copyright statute protects a broad range of works. Specifically, copyright protection exists for original works of authorship fixed in a tangible medium of expression, including the following categories:
Many types of original expression are eligible for copyright protection within the enumerated categories. For example, copyright protection extends to items as diverse as silverware, symphonies, world globes, sculptures, books and computer programs.
Not All Forms of Expression Are Eligible for Copyright Protection
Though the scope of copyright coverage is broad, there are some boundaries. Purely utilitarian works are not copyrightable because “utility” is not considered expression. For example, the shape of a shovel cannot be copyrighted because both the handle and the blade serve only utilitarian purposes. However, to the extent any non-utilitarian features can be separable from utilitarian features, they are copyrightable. For example, while a belt buckle is a utilitarian item that cannot be copyrighted, the ornamental design of the belt buckle may be copyrighted, if it can be separated from the functional aspects of the belt buckle. Similarly, the unique creative expression in a computer program that is separable from the program’s utilitarian aspects is protectable by copyright. Copyright law’s emphasis on protecting creative expression also limits its protection for the underlying effort to produce that expression. For example, a writer’s research into news or historical facts for a nonfiction book about the Civil War is not protectable by copyright. Those facts can be used freely by others, even though the unique expression of those facts in the author’s nonfiction book are still protected by copyright.
In the case of derivative works, collections or compilations, whatever additional expression an author has added to such facts, can be copyrighted. For example, a computer database of demographic data, is protected by copyright to the extent of the particular original selection or display format.
Similarly, if an author has adapted or recast another, pre existing work, such as making a translation, arrangement or dramatization (with the copyright owner’s permission, if applicable), the unique expression contributed by the second author is copyrightable as a separate work. A translator could provide a Spanish version of Shakespeare, which could be separately copyrighted. Others are still free to make their own Spanish translations of Shakespeare, but they must not copy that particular copyrighted work. As with utilitarian objects, lists of facts are likewise not protectable since no originality has been added to publicly available information. Without the input of some original thought or an original arrangement, there is no benefit to the public and thus no exchange for the copyright. In these cases, no protection will be extended to the work.
Scope and Duration of Protection
An author is protected by copyright law as soon as a work is fixed in some concrete fashion. Protection for a work begins at its creation and lasts during the lifetime of the author plus 70 years. The prior 1909 Copyright Act established an initial term of 28 years, renewable for an additional 28 years. In most cases under current law, however, works created before the effective date of the current act (January 1, 1978), are eligible for a total term of 95 years.
Under the current law, in cases where the work is jointly created by two or more authors, the copyright endures for the life of the last surviving author, and for an additional 70 years after that author’s death. If the work was one “made for hire” (typically under a contractual relationship), anonymously, or pseudonymously, the copyright endures for a term of 95 years from the date of first publication, or for a term of 120 years from the date of creation, whichever expires first.
Rights of the Copyright Owner
Certain exclusive rights belong to the copyright owner, who may be the author, his or her assigns, or sometimes the employer if the work is one made for hire. The Copyright Act grants a copyright owner the exclusive right to:
Foreign protection is also available to U.S. authors. The U.S. participates in several international agreements whereby reciprocal protection is provided with certain foreign countries.
Copyright protection exists in a work from the moment it is first fixed in a tangible medium of expression. The creator of a work is the owner of the copyright. The copyright owner should include an appropriate copyright notice on all copies of the work to protect against innocent infringement. Even though under the 1976 Copyright Act no notice is required for work to receive copyright protection, a copyright notice is desirable to prevent an infringer from raising the defense that the work was innocently copied. Notice also allows potential licensees to more easily locate the owner of a work. A proper copyright notice contains three elements:
For example, if the copyright owner is John Smith and copies of the work were first published in 1985, the proper copyright notice is © 1985 John Smith. In the case of sound recordings, the symbol © is replaced by (P).
If one desires to take advantage of foreign copyright law protection, some additional precautions may be in order, depending on the countries in which protection is desired. To cover all situations arising from the various multilateral treaties and bilateral agreements, the copyright notice should always contain the symbols © (or (P) for sound recordings), rather than the words “copyright” or “copr.” In addition, the notice should also contain the notation “All Rights Reserved.”
Register the Copyright
In order to take advantage of statutory infringement damage remedies available under copyright law, where possible, a copyright owner should register the copyright with the U.S. Copyright Office within three months after first publication of the work. As registration is mandatory before initiating a suit for infringement, it is best to register the work as soon as possible.
Registration involves meeting the deposit requirements of the United States Copyright Office, properly completing and filing the appropriate copyright registration application, and submitting the required fee. When depositing a copy is impractical, an alternative form of deposit that provides an identifying, archival record of the work is satisfactory. For example, when registering computer programs, source code serves as an acceptable deposit format.
There are always issues that should be considered while preparing a copyright registration application and consultation with a qualified attorney is recommended.
Copyright Infringement & Remedies
The copyright owner has the exclusive right of reproduction, distribution, performance, display and preparation of derivative works based on the original. Unless permitted by one of the statutory exceptions to the copyright owner’s rights (explained below), the violation of any of these exclusive rights constitutes copyright infringement.
In order for a court to find that copyright infringement has occurred, it is not necessary that the infringer engage in exact copying, but only that the infringed work be “substantially similar” to a significant portion of the protected expression of the copyrighted work.
Many tests are employed to ascertain when copying has occurred, and what appears to an ordinary lay observer as copying might not be copying from a legal standpoint. For example, even a highly similar work might not be infringing, if it was independently created or had only unprotectable content in common. Thus, for infringement to be found, the plaintiff must first establish evidence of copying. Copying can be shown with direct evidence, or through circumstantial evidence demonstrating the opportunity to copy, namely access to the copyrighted work, coupled with a determination of the similarity of the two works.
Next, the amount of copying is determined by comparison of the protected content of the copyrighted work to the infringing work. If a copyright is being infringed, the copyright owner is usually entitled to obtain a court-ordered injunction prohibiting such infringement. The copyright owner may also be entitled to a court order impounding and disposing of the infringing articles, and may also be awarded money damages for the infringement. Because it is often difficult to show the exact amount of actual damages which result from copyright infringement, the copyright law provides for a standard amount of “statutory damages” for timely registered works that may be awarded without proof of any actual damages. The amounts of statutory damages typically range from $750 to $30,000 per work, at present. In cases of deliberate, “willful” infringement, however, the statutory damages can be as much as $150,000 per infringed work. These statutory damages are only available for infringing activity after the date of registration, unless the work was registered within three months of first publication.
If proof of actual damages is available, or if the copyright in the work was not registered until after substantial infringement occurred, the measure of damages is the lost profits of the copyright owner.
When Copying is Not Infringement
Certain limits to the copyright owner’s exclusive rights are provided by the copyright law. One of the most important exceptions to a copyright owner’s rights is the public’s right to make “fair use” of a copyrighted work. Fair use is a limited use of a copyrighted work without the copyright owner’s permission, yet without liability for infringement.
Fair use includes the use of a copyrighted work for purposes such as criticism, comment, parody, news reporting, teaching, scholarship or research. Determining whether a particular use is “fair” involves inquiry into the facts of the situation, and such determinations can often not be made with certainty and requires weighing the interests of the respective parties.
Digital Millennium Copyright Act
In 1998, the Digital Millennium Copyright Act (“DMCA”) was signed into law by President Clinton. The Act is designed to implement the treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva conference, but also contains additional provisions addressing various related matters, including: (i) making it a crime to circumvent anti-piracy or technological measures built into most commercial software; (ii) outlawing the manufacture, sale, or distribution of devices used to circumvent copy protection schemes to illegally copy software; (iii) providing various exemptions from anti-circumvention provisions under certain circumstances, such as for nonprofit libraries, archives, and educational institutions, encryption research, assessing product interoperability, and testing computer security systems; (iv) in general, limiting Internet service providers from copyright infringement liability for simply transmitting information over the Internet, provided that service providers are required to remove material from users’ web sites that appears to constitute copyright infringement; (v) limiting liability of nonprofit institutions of higher education that serve as online service providers for copyright infringement by faculty members or graduate students under certain circumstances; (vi) requiring that “webcasters” pay licensing fees to record companies; and (vii) requiring that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while “maintaining an appropriate balance between the rights of copyright owners and the needs of users.” Nevertheless, the DMCA states that “[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use . . . .”
Business Decisions That Affect Copyright
Another important restriction that copyright owners should be aware of is that once a copyrighted work is sold as opposed to merely being licensed, the purchaser and other subsequent purchasers are usually free to resell and use the work as desired. Visual artists are granted some limited control over how their work is displayed after sale. For this reason, copyright owners should seek to license the use of their work, if practicable. Distributors of copyrighted works should also be cautious that their activities do not infringe upon the other rights retained by the copyright owner after the sale is made, such as the right to public performance.
A person who commissions a work, such as a sculpture, should consider that copyright ownership of the work will reside in the hired author, unless specific provisions are made in the contract or an assignment is executed transferring the copyright to the commissioner. Contractual transfers should be in the form of a written agreement to assign ownership upon completion of the work. If the author is an employee hired to create such works, and the work is made in the regular course of business, the employer will probably own the copyright.
Other Laws Also Provide Protection
Many state laws augment copyright protection and provide additional or alternative avenues to seek redress. Such state protections as unfair competition, unfair trade practices, misappropriation, trade secrets, defamation, right of publicity, contract, and right of privacy can all bear on issues related to copyright interests. As long as the state law addresses rights separate from or additional to those rights protected by the federal copyright law, the law is valid and available to the plaintiff. Other federal laws also complement the copyright laws, such as the trademark and design patent protection laws.
Copyright protection differs from the protection provided by trademark and patent law in that it protects the expression of original works of authorship fixed in a tangible medium. Copyright does not protect the underlying ideas, facts or utilitarian features of a work, just the unique fixed expression. In this way, the free flow of information is maintained at the same time that authors are rewarded for their creative efforts.