Learning the Basics of Copyright Law

     A copyright is a federal right granted to fixed, original works of authorship. In order for a work to be eligible for copyright protection, the work must contain an expression, have originality and possess a modicum of creativity.

     A copyright confers to the owner the exclusive right to exploit the work in specified ways. In essence a copyright gives its owner, subject to certain exclusions, a legal  monopoly. However, the monopoly is for the expression of an idea, but not the idea itself.

     The exclusive rights granted by a copyright are the right to reproduce the work, to prepare alternate variations or adaptations (also known as derivative works), the right to distribute copies, or the right to publicly perform or display the work.

      Copyright protection extends only to the specific concrete expression in a work. Expression is most commonly found as precise words, colors, or an arrangement of elements.  However, expression can encompass for instance the details of a book’s plot. Things that are not expression, and therefore cannot be copyrighted, include ideas, blank forms, individual facts, words and short phrases. Compilations of facts can be copyrighted in many situations. Words and short phrases while afforded copyright protection, can often be protected by Trademark law.

     The two remaining requirements for a copyright are originality and creativity. Originality simply means that the author of the work independently created it and did not just copy from another work. Originality does not mean though that the work must be new, novel or unusual. Creativity, on the other hand, imposes a standard that the work must contain a minimal level of artistic or literary ingenuity. Generally, the courts have been very liberal in applying the creativity standard.

     A major change in the copyright laws took place with the passing of the “Digital Millenium Copyright Act” in 1998. The act modernized copyright laws to take into account new digital technologies, particularly the ability to digitally transmit and reproduce works. The main features of the DMCA are (1) to protect works published on the internet in the digital environment and (2) safe harbor provisions for internet service providers to insulate them from liability as a contributory infringer for acts committed by their subscribers.

     The copyright attaches but as soon as the expression is fixed in some tangible or perceptible form, such as writing, performance of music or dance, sound, drawing, or on the Internet. You do not have to wait until the work is registered While copyright attaches immediately, you must first register the copyright with the Library of Congress before you can sue someone who has copied or is infringing the work. Generally, if the infringement commenced prior to the registration date, then you are limited to recovering only your lost profits. However, if the work was registered prior to the commencement of infringement, then you can elect “statutory damages” instead of lost profits. Statutory damages can provide $30,000 per infraction which can be doubled by the courts in the case of willful, intentional infringement and also allows for the recovery by the owner of its attorney’s fees.

     Registration of a copyright is rather inexpensive and easy to complete. There is a $30 fee, a specific form to be filled out, and two copies of the work submitted with the application. Typically six months after submission of the application, if everything is in order, you will receive your registration certificate. The certificate will carry a registration date that coincides with the date your application was received at the Copyright Office.

     Ownership in a copyright is granted to the author or creator in most instances. The major exception is employees who create the work in the course of their employment. In those cases, the copyright in a work will rest with the employer. But in the case of non-employees, like independent contractors, the contractor will own the copyright unless the parties have an agreement granting the copyright to the company. To prevent such a situation, businesses should be certain that they have a written agreement with the contractor which designates any work as a “work for hire”.

     The concept of “work for hire” is extremely important for businesses. Any logos, brochures, packaging designs, websites, or advertisements prepared by an independent contractor will not be owned by the company unless it can obtain assignment through a “work for hire” agreement. This can also include software development completed for a company by a software contractor.

In general it should be the standard practice of all businesses to affirmatively state their rights for all intellectual property created by employees and contractors. This can be best accomplished by having written employment agreements or consulting contracts that are mandatory documents which are signed by the parties before engaging the services of any individual or vendor.

     We are happy to provide a fee-based consultation to help you assess your current copyright protection, to prepare assignment of intellectual property agreements and employment agreements or to just answer your individual questions on copyright law. Simply select the “Contact Us” option on the left hand menu bar to reach us and arrange an appointment to discuss your individual needs.