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Intellectual Property Basics - Copyrights

Posted by attorney Tyson Snow


a.Definition. Federal copyright law allows protection of "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." 17 U.S.C. § 102(a). All copyright protection is provided at the federal level. The states do not get involved in copyright regulation or protection. Federal copyright laws give the owner of the copyright the exclusive right to make copies of the copyrighted material, together with the exclusive right to make derivative works (e.g. revisions, sequels, etc.) of copyrighted material. A copyright protects the expression of an idea only. It does not give the owner a proprietary right in the idea itself.

b.Requirements for Federal Copyright Protections. To be copyrighted, the work must be fixed in some medium. A work that resides solely in the head of the creator cannot be copyrighted. In addition, the work must be original. The originality requirement has a very low threshold, and is usually interpreted to mean simply that the work must be the creator's own product, not just copied from another source in the public domain.

c.Creation, Maintenance and Effect of Copyright Protection. A work does not need to be registered in order to be protected under federal copyright law. A copyright comes into existence when a work that meets the requirements for copyright protection is first created. The moment a person creates such a work, that person is automatically and immediately vested with a federal statutory copyright protecting that work. Although no longer required, it is a good idea to put a copyright notice (“© 2008 Tyson Snow" or “© 2008 Manning Curtis Bradshaw & Bednar") on copyrighted material. This copyright notice will prevent an infringer from defending its infringement by arguing that it was accidental.

d.Extent of Copyright Protection.

i.Independent Works. A copyright protects only against copying a work. It does not protect against the possibility that someone may independently create a work identical to the copyrighted work. For example, if an author independently creates a written work copyrighted by someone else, the subsequent author will not have infringed upon the earlier author’s copyright if he or she can prove that the subsequent work was independently created and was not copied from the original work.

ii.Underlying Expression. In addition, a copyright gives the owner the exclusive right to copy a work, but does not give the owner an exclusive right to the expression contained in the work. For example, obtaining a copyright on word processing software means that a competitor cannot copy that program and sell it as its own. The copyright does not prevent a competitor from developing its own word processing software.

e.Fair Use Doctrine. The so-called “fair use" doctrine provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright. Some of the factors used to determine whether the use made of a work in any particular case is a fair use include the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work.

f.Federal Copyright Registration.

i.Benefits. Registering a copyright is not a prerequisite for obtaining a copyright. Registering the copyright with the United States Copyright Office does, however, give the creator certain procedural benefits if the copyright is infringed. For example, the creator cannot commence legal action for infringement of a its copyright until the copyright is federally registered. This requirement does not preclude an action for an infringement that occurred prior to registration. Such registration is simply a procedural formality that must be completed in order to allow commencement of the action. Also, if a work is registered with the United States Copyright Office before or within five years of its first publication, the Certificate of Registration constitutes prima facie evidence of the validity of the copyright and of the facts stated in the Certificate of Registration, including the identity of the author and the date of first publication. Finally, registering a copyright with the United States Copyright Office allows the holder of the copyright to recover statutory damages and attorney's fees in an infringement, in lieu of having to prove actual damages. These benefits can decrease the creator's litigation costs in an infringement suit.

ii.Registration Requirements. Registering a copyright is fairly simple and inexpensive. An application form together with one or two (depending upon the type of work being copyrighted), copies of the work to be copyrighted must be filed with the United States Copyright Office together with a $35.00 filing fee. A Certificate of Registration is issued within eight months of filing of the application.

g.Works for Hire. The copyright for a work created by an employee is presumed to be vested in the employer. If the creator is not a true employee (e.g., the creator is an independent contractor or was commissioned) the "work for hire" test depends on the following factors:

i. The hiring party's right to control the manner and means of doing the work. ii. The amount and degree of skill required to create the work. iii. Who provided instruments and tools. iv. The location of the work. v. The duration of the relationship between the hiring party and the creator. vi. Whether the hiring party may assign other projects to a third party. vii. The hiring party's discretion over when and how long the creator should work. viii. The method of payment. ix. The creator's role in hiring and paying assistants. x. Whether the work is created in the regular course of the hiring party's business.

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