Answers to Frequent Asked Questions
1. Copyright (CR) protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture.
2. CR does NOT protect facts, ideas, systems, or methods of operation
3. CR may protect the way things are expressed.
4. Copies of all works under CR protection that have been published in the U.S. are required to be deposited in the Copyright Office within three months of the date of first publication.
5. Reasons to Register CR
a. To have facts on public record and certificate of registration.
b. Eligible for statutory damages and attorney’s fees.
c. Prima facie evidence if registered w/in 5 years of publication.
6. Registering CR
a. Application Form
b. $30 fee
7. Deposit
a. Unpublished – one copy
b. Published – two copies
c. Photographs for visual works
8. Works created after January 1, 1978 are not subject to renewal.
9. Architectural works became subject to CR protection on December 1, 1990.
10. Only the transferee (by will, by inheritance) can register CR in a diary. CR is the right of the author of the work or the author’s heirs or assignees, not the one who owns the physical work itself.
11. The creator of an original expression in a work is the author. The author is also the owner of CR unless there is a written agreement by which the author assigns the CR to another person or entity, such as a publisher. In cases of works made for hire the employer or commissioning party is considered to be the author.
12. Publication
a. The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a works does not itself constitute a publication.
b. Publication occurs on the date on which copies of the work are made available to the public.
c. Publication is not necessary for CR protection.
d. Publication occurs at the discretion and initiative of the CR owner.
13. The owner may transfer all or part of the rights in a CR work to another.
14. Not copyrightable:
a. Names
b. Titles
c. Slogans
d. Short phrases
e. Ideas
f. Concepts
g. Systems
h. Methods
15. Fair Use for commentary, criticism, news reporting, and scholarly reports.
16. Change in own work to make a new claim of copyright:
a. Substantial and creative
b. More than just editorial or minor changes
c. New derivative work
17. You cannot claim CR to another’s work unless you have the owner’s consent.
18. CR notice is now optional.
19. Royalties
a. Private arrangement between author and publisher
b. Copyright licensing organizations
c. Publications rights clearinghouses
20. CR protects the original photograph, not the subject of the photo.
I. What Is Copyright
Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
· To reproduce the work in copies or phonorecords;
· To prepare derivative works based upon the work;
· To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
· To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
· To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
· In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.
*Note: Sound recordings are defined in the law as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Common examples include recordings of music, drama, or lectures. A sound recording is not the same as a phonorecord. A phonorecord is the physical object in which works of authorship are embodied. The word “phonorecord” includes cassette tapes, CDs, LPs, 45 r.p.m. disks, as well as other formats.
II. Who Can Claim Copyright?
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
o a contribution to a collective work
o a part of a motion picture or other audiovisual work
o a translation
o a supplementary work
o a compilation
o an instructional text
o a test
o answer material for a test
o an atlas
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
Two General Principles
· Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
· Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors.
III. Copyright and National Origin of the Work
Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author. Published works are eligible for copyright protection in the United States if any one of the following conditions is met:
· On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party,* or is a stateless person wherever that person may be domiciled; or
· The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
· The work is a sound recording that was first fixed in a treaty party; or
· The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
· The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
· The work is a foreign work that was in the public domain in the U.S prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA).
The work comes within the scope of a Presidential proclamation.
IV. What Works Are Protected?
Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
1. literary works;
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
8. architectural works
These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
V. What Is Not Protected by Copyright?
Several categories of material are generally not eligible for federal copyright protection. These include among others:
· Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
· Titles, names, short phrases, slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; 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 (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
VI. How to Secure a Copyright
Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advantages to registration. See “Copyright Registration.”
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
VII. Publication
Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909. However, publication remains important to copyright owners.
The 1976 Copyright Act defines publication as follows:
“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
The legislative reports define “to the public” as distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents. The reports state that the definition makes it clear that the sale of phonorecords constitutes publication of the underlying work, for example, the musical, dramatic, or literary work embodied in a phonorecord. The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phonorecords are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display.
Publication is an important concept in the copyright law for several reasons:
· Works that are published in the United States are subject to mandatory deposit with the Library of Congress.
· Publication of a work can affect the limitations on the exclusive rights of the copyright owner that are set forth in sections 107 through 121 of the law.
· The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works (when the author’s identity is not revealed in the records of the Copyright Office) and for works made for
automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office. Public Law 102-307 makes renewal registration optional. Thus, filing for renewal registration is no longer required to extend the original 28-year copyright term to the full 95 years. However, some benefits accrue to renewal registrations that were made during the 28th year.
X. Transfer of Copyright
Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.
A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.
Transfers of copyright are normally made by contract. The Copyright Office does not have any forms for such transfers. The law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.
Termination of Transfers
Under the previous law, the copyright in a work reverted to the author, if living, or if the author was not living, to other specified beneficiaries, provided a renewal claim was registered in the 28th year of the original term.* The present law drops the renewal feature except for works already in the first term of statutory protection when the present law took effect. Instead, the present law permits termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits. For works already under statutory copyright protection
For works already under statutory copyright protection before 1978, the present law provides a similar right of termination covering the newly added years that extended the former maximum term of the copyright from 56 to 95 years. For further information, request Circulars 15a and 15t.
*Note: The copyright in works eligible for renewal on or after June 26, 1992, will vest in the name of the renewal claimant on the effective date of any renewal registration made during the 28th year of the original term. Otherwise, the renewal copyright will vest in the party entitled to claim renewal as of December 31st of the 28th year.
XI. International Copyright Protection
There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions
XII. Copyright Registration
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
Registration establishes a public record of the copyright claim.
Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
If made before or 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.
If registration is made within 3 months after publication of the work 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 owner.
Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.
1. Physical Separability
The most simple and straightforward test for separability is physical separability — whether the artistic elements can be physically separated from the useful elements. This is illustrated best by the example in Mazer v. Stein. In that case, the artistic element was a statuette of a human figure and the useful element was the lamp itself. Since the artistic statuette could simply be detached from the light bulb and shade above it, the statuette was clearly physically separable.
2. Conceptual Separability
The test for conceptual separability has been far more confusing than the test for physical separability. If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists. Conversely, when the design of a useful article is “as much
