Copyrights are exclusive federal rights that protect an artist’s expressive means. Copyrights do not protect ideas, only the manner in which an artists expresses ideas.
Copyrighted Subject Matter
The Copyright Act provides that a copyright exists “in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The first requirement, originality, has been explained as “The author must have engaged in an original activity of creativity”. In other words, the work cannot have been copied. The next requirement, fixation, means the work must be in a form that is capable of perception or reproduction.
Categories of Copyrightable Material
The following are the categories of copyrightable works:
- Literary works
- Musical works, including 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
- Architectural works
Rights Available to a Holder of a Copyright
- Reproduce the copyrighted work
- Prepare derivative works based upon the copyrighted work
- Distribute copies or phonorecords of the copyrighted work to the public
- Publicly perform the work
- Publicly displaying the work
In addition to the physical rights associated with copyrighted material, there are what are called “Moral Rights“. These moral rights pertain primarily with works of visual art. Only the artist may avail themselves of the following rights:
- To Claim Authorship in the Work
- To prevent use of her name as the author of works she did not create
- To prevent use of her name as the author of her own work if the work has be distorted, mutilated or otherwise modified so that the use would be prejudicial to her honor or reputation
- To prevent any intentional distortion, mutilation or other modification of her work which would be prejudicial to her name or reputation
- To prevent the intentional or grossly negligent destruction of the work if it is of recognized stature.
- Joint Works – Works that were produced by more than one author are co-owned by each of the contributing authors. The contribution must have been expression, not ideas or capital.
- Works for Hire – There are two methods in which a work may be considered a “work for hire.” First, if the work was prepared by an employee in the course of employment. And second, Works created by independent contractors if: 1) the parties have expressly contracted that the work be considered a work for hire; and 2) if the work is one of the following:
- A contribution to a collective work
- A part of a motion picture or other audiovisual work
- A translation
- A supplementary work
- A compilation
- An instructional text
- A test
- Answer material for a test
- An atlas.
- Collective Works – The author of each separate component, absent a transfer of copyright in writing, is the owner of the copyright in that separate component.
Divisibility of Ownership Transfer of Ownership
Copyright Notice, the © symbol
The form of the copyright notice consists of three elements:
- The word copyright, the abbreviation copr. or ©
- The year of the first publication
- The name of the owner of the copyright.
Prior to 1989, authors who published their works without the copyright notice lost their copyrights. The loss of copyright could be cured only if one of the following occurred:
- If only a small number of copies were distributed to the public without notice
- If the owner registered the copyright with the Copyright Office within five years of the public distribution and the owner makes reasonable efforts to place notice on the distributed copies
- If the omission of the copyright notice were in violation of a contractual agreement by the owner that the copyright notice be included as a condition of authorizing the public distribution.
After 1989, the Copyright Act no longer requires notice be placed upon a work for public distribution.
Registration of a copyrighted work is not required. But, registration of a copyrighted work affords many benefits not available in the absence of copyright registration.
- Registration of a work that was obtain within five years of publication is very good evidence of the validity of the copyright.
- Registration, or the attempt at registration is a prerequisite to a copyright infringement suit. The registration of the copyright need not occur before the infringing activity.
- If a work is not registered there are two situations in which certain remedies are not available:
- Statutory damages and/or attorney fees for infringement activities of an unpublished work that occurred prior to registration;
- Statutory damages and/or attorney fees for infringement activities of a work after publication but prior to registration. If the copyright were registered within three months of publication these remedies are available.
The requirements for registration of a copyrighted work are fairly simple.
- Complete an application
- Mail the application with the required fee with a designated number of copies of the work (usually two) to the Copyright Office.
There are three different ways of measuring the duration of copyrighted material. These depend on when the work was created and when the work was published. Below is a breakdown of different measuring systems. If a work was created, but not published prior to January 1, 1978, then the duration of the copyright is the life of the author plus 50 years or until December 31, 2002 whichever is longer. If a work was created and published prior to January 1, 1978, then a work that was still under federal copyright protection, and renewed if necessary, had its duration extended to 75 years. Works created on or after January 1, 1978 have a copyright duration of the life of the author plus 50 years. For works of joint authorship the term is life of the last surviving author plus 50 years. Works that were created anonymously or pseudonomously were given a duration of 75 year after first publication or 100 years after creation, whichever expired first.
Direct Infringement is the violation of any of the exclusive rights listed above. Contributory Infringement occurs when one knowingly induces, causes or materially contributes to the infringing conduct of a third party. Vicarious Infringement occurs when an employee or someone under one’s direct supervision infringes a copyright.
Defenses to Infringement
Some of the defenses to copyright infringement are invalidity of the copyright and the fair use defense. The fair use defense is the most commonly used defense to infringement. Some examples of uses that are found to be fair are for purposes such as: criticism, comment, news reporting, teaching, scholarship, or research. This list is not an exhaustive but an inclusive one. Just stating that the use falls under one of the fair use categories is not sufficient. The court will also look to four factors to aide in the determination of fair use.
- The purpose and character of the use, including the commercial nature of the use.
- The nature of the copyrighted work.
- The amount and substantiality of the copied portion.
- The effect of the use on the potential marked or the value of the copyrighted work.
Remedies to Infringement
The following is a list of potential remedies to copyright infringement. The remedies applied is dependent upon the facts of each case.
- Disposal of infringing articles
- Damages or profits
- Costs and Attorney fees