Basic Information about U.S. Copyrights
- What is a Copyright?
- A copyright is really a number of rights, but is generally the right to make
copies of a literary, musical, artistic or other work which involves creative effort.
In addition to the right to make copies, copyright includes (as applicable) the rights
to perform, display, sell, rent, or otherwise distribute the protected work. Moreover,
copyright protects "derivative works", that is another work directly based
on the protected work, e.g. a film based on a novel.
__ It is important to distinguish between the copyright
and the work protected by the copyright. I may buy an original painting and own it,
but the artist retains the copyright. My ownership of the painting does not give
me the right to make photographs of it or to otherwise copy it. Another example often
given is that the author of a letter owns the copyright to the letter, but the recipient
of the letter owns the letter.
- How is a Copyright Acquired?
- According to U.S. law, a copyright attaches to all "original works of authorship"
once they are "fixed in tangible form," whether published or unpublished.
The fixation does not need to be directly perceptible, so long as it may be communicated
with the aid of a machine or device. Ideas, methods, or principles are not protected
by copyright, but their tangible expression can be protected by copyright. Moreover,
copyright protects the tangible expression only, not the idea or principle.
__ Works of authorship include the following: literary,
musical, and dramatic works; pantomimes and choreographic works; pictorial, graphic,
and sculptural works; motion pictures and other audiovisual works; and sound recordings.
Computer programs and their visual displays can be protected if they are "original
works of authorship".
__ Some works of authorship are generally not eligible
for copyright protection. These include: works that have not been fixed in a tangible
form of expression, e.g., choreographic works that have not been noted or recorded;
titles, names, short phrases, and slogans; familiar symbols or designs; mere variations
of typographic ornamentation, lettering, or coloring; mere listings of ingredients
or contents; ideas, procedures, methods, systems, processes, concepts, principles,
discoveries, or devices, as distinguished from a description, explanation, or illustration;
works consisting entirely of information that is common property and containing no
original authorship, e.g. standard calendars, height and weight charts, tape measures
and lists or tables taken from public documents or other common sources.
__ Normally, the author retains the copyright. However,
under certain circumstances called "works for hire", the author's employer
owns the copyright.
- How Long Does a Copyright Last?
- The duration of the copyright is for the life of the author plus 50 years, for
works created on or after Jan. 1, 1978. In the case of joint authors, the life of
the last surviving author plus 50 years. In the case of works for hire, anonymous
and pseudonymous works, 75 years from publication or 100 years from creation, whichever
is longer. When a copyright expires, the work enters the public domain.
- What is the Copyright Notice?
- Until March 1, 1989, all publicly distributed copies of a work had to contain
a copyright notice (e.g., © 1989 Thomas A. Gallagher) or the copyright could
be lost to the public domain. Although the law has been amended with regard to this
notice, it is still a good idea to use the notice on all published copies.
- Publication is not necessary to obtain copyright protection, but once the work
is published, it must be deposited in the Copyright Office within 3 months.
__ If deposited and registered 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; and if deposited and registered
within 3 months after publication 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
- How is a Copyright Enforced?
- In order to enforce a copyright in the U.S., the protected work must be deposited
and registered with the Copyright Office. Moreover, since the right is essentially
the right to make copies, to establish infringement of copyright, the copyright owner
must prove that the substantial similarity between the protected work and that of
the infringer is the result of a deliberate copying.
- To register a work, send the following three elements in the same envelope or
package to the Register of Copyrights, Copyright Office, Library of Congress, Washington,
D.C. 20559: 1. A properly completed application form; 2. A non-refundable filing
fee of $10 for each application; 3. A non-returnable deposit of the work being registered.
THOMAS A. GALLAGHER, ESQ.
Registered Patent Attorney
30-605 NEWPORT PARKWAY • JERSEY CITY • NJ • 07310
TELEPHONE: 201-653-4269 • FAX: 201-653-4364
TELEX: 6504023049 • MCI MAIL: 402-3049
- The above is not intended to be legal advice, but is merely informative
of the copyright laws. Anyone interested in obtaining information about copyright
protection should seek the advice of a qualified attorney.