Copyright Registration and Licensing

Definition. A copyright is a collection of six exclusive rights granted by federal statute to an "author" (the creator) of "original works of authorship" which are "fixed in a tangible medium or expression." Unlike patent or trade secret law, copyright law protects expression of ideas and not the ideas themselves. As soon as an author expresses an idea in a tangible medium the author has the following exclusive rights in that "work": (1) to reproduce it, (2) to create derivative works based on it, like a movie version of a novel, (3) to distribute copies of it, (4) to perform it publicly, (5) to display it publicly and, in the case of visual fine art, (6) to prevent intentional distortion or destruction of it.

Origin. Copyright law is also based in Article I, Section 8, Clause 8, of the U.S. Constitution. The current governing statute is the Copyright Act of 1976 found at 17 U.S.C. §§101-2319 (1988). Until this latest version of the Act, state law governed works until they were made public or "published."

Requirements. To be protected by the Copyright Act, an author needs to be the originator of the work, meaning the work does not have to be novel but only not copied from someone else, and the work must be "fixed" in a tangible medium of expression, meaning embodied in a copy that is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration" i.e., writing a poem on paper, recording a song, videotaping a performance, painting a picture, or programming software code. An author does not need to register his or her work with the Copyright Office to be protected, however, an author cannot enforce the exclusive rights by bringing an infringement lawsuit, until the work is registered.

Subject Matter. The Act includes an non-exhaustive list of the major categories of protected works: musical compositions, drama, pantomime and choreography, photographs, graphic and sculptural works, motion pictures, sound recordings and literary works which is broadly defined to include "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols" like software. In our digital world, copyright law governs content. Essentially, if it’s on the Internet, it’s protected (or was) by copyright. Recognizing this, the Copyright Act was amended to include the Digital Millennium Copyright Act (DMCA) that includes provides mechanisms from directing service providers to take down copyrighted elements that are used without the owner’s permission, for example, product photos and descriptions and video. Some of practice includes entertainment law, and much of that revolves around copyrights. I have represented publishers, authors, bands, visual artists, TV and film producers, comic book artists and illustrators and photographers in a variety of transactions including merchandising agreements and film options for books.

Limitations. The Act specifically does not cover "any idea, procedure, process, system, method of operation, concept, principle or discovery" nor short phrases, slogans or titles. The Act also describes “fair use” as an affirmative defense to a claim of infringement. Determining whether use of another author’s work is fair use involves analyzing many factors, none of which is more important than any other. For example, the Act identifies examples of fair use such as criticism of the work, comment on the work, news reporting, teaching, scholarship, and research. But the even with these types of use, a court also considers the nature of the work, how much of it was used, and effect of that use on the potential market for or current value of the work.

Notice. Since March 1, 1989, the Act no longer requires the formality of using copyright notice on works to preserve rights. Although not required, most authors use the © symbol, year of first publication and name of rights owner anyway. Registration is not required to use the copyright symbol.

Duration. The exclusive rights granted by the Act last for the author's lifetime plus 70 years. If the author is a corporation or anonymous, the rights continue for 95 years from the year of publication (first public release) or 120 years from creation, whichever is shorter. Works created before January 1, 1978 (under the Copyright Act of 1909) have different durations depending on a variety of factors.

What’s the Point. I can help you understand the role copyright plays in your business, how to best use the protections the law creates (like being able to seek attorney’s fees from an infringer), and structure license agreements that allow you to get the highest continuing value from your creativity.