Songs, pictures, paintings and drawings are only a few of the types of creations covered by copyright law. Accessibility of the Internet makes it easier for original creative works to be used without the creator’s permission. Unless these works are registered with the United States Copyright Office, owners are not entitled to statutory damages for copyright infringement. Caseiro Burke’s copyright attorneys help clients analyze their copyright options and the process of registration with the US Copyright Office. If necessary, we assist clients in the enforcement, defense and licensing of copyrights.
Copyright in a “work” allows the owner of that work to exclude others from the unauthorized reproduction, display or performance of the work. Copyrights can be established in the nonfunctional features of the work. Novels, paintings and dance performances are just three examples of works that are copyright protectable. Software can also be covered by copyright, although it is something of a hybrid as there are certainly functional aspects of software that are better protected by patent rather than copyright.
Copyrights are established when the work is created. That is, as soon as the author has completed the novel, for example, the copyright exists. Prior to 1976, the work had to be federally registered before copyright was established. Federal registration remains an essential aspect of copyright protection as it is required for filing an infringement lawsuit and to collect monetary damages for infringement. Copyright law is a matter of federal law rather than state law. Most countries have established copyright laws and there are treaties among countries to provide reciprocal copyrights.
What is a copyright?
A copyright grants the exclusive right to reproduce, distribute, perform, or display the work covered. It also confers the exclusive right to create “derivative” works; for example, a movie adaptation of a novel is a derivative work. A work is eligible for copyright protection provided it is an original work of authorship that is fixed in a tangible medium of expression, such as a painting or a recorded song.
To be an original work, it must be an independent creation with a relatively modest level of creativity. Thus, a copy of another work may be copyright infringement rather than a new copyright protectable work. The author of the work may be an individual, a group of people or an employer. Copyrights may be assigned but the identified author remains unchanged. The work must be fixed in a tangible medium of expression, such as when a novel has been typed on paper or stored on a computing device, or when the painting is applied to a canvas or the wall of a building, for example.
The term of copyright is not unlimited. It is determined by the life of the author. Currently, when the author is an individual or individuals, the term is the life of the author plus 70 years. When the author is a juristic entity, such as a corporation, the term is 90 years from the origination of the work.
How to protect your copyright.
The first thing the copyright owner should do is register the work with the federal Copyright Office through a copyright attorney. As noted, registration of the work with the US Copyright Office is required to assert infringement and to maintain the option to seek statutory damages. It is also suggested, but not required, to “mark” the existence of the copyright, such as with a notation containing the copyright identifier, the name of the owner and the year the work was created. An example of that is “© Company ABC 2015”. The copyright owner should not “sit” on its rights when potential infringement is discovered.
What to do if you are accused of copyright infringement.
The first thing a party accused of copyright infringement should do is determine whether the asserted work has been registered. If it has not been registered, damages are severely limited. Beyond that, defenses to consider are that the work is not original enough to warrant the protection, that the asserting owner is not the true owner, or that any reproduction was a “fair use” such as exists when a passage has been copied as part of a review.
Caseiro Burke helps its clients analyze their copyright options and in the process of registration with the US Copyright Office. We assist clients in the enforcement, defense and licensing of copyrights.