What is a Copyright?
A copyright protects “original works of authorship.” Most writings and artistic creations are subject to copyright protection including books, photographs, musical recordings and computer programs. Copyright arises automatically as soon as a work is fixed in a tangible medium of expression; that is, written down, painted, filmed, recorded, etc. Copyright gives the author of a work a bundle of exclusive rights, including the right:
- 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, and in the case of sound recordings, to perform the work publicly by means of a digital audio transmission; and
- To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works.
Copyright does not protect the ideas that are expressed in a work; it is the tangible expression of the idea that is protected. However, the line between “idea” and “expression” is not always easy to identify.
Who Owns the Copyright in a Work?
Many copyright disputes involve competing claims of ownership of a copyright. Your attorney can help you make sure you own or have a right to use the copyrighted works such as photographs, illustrations, designs, software, or other items that your business may purchase, commission from freelancers, use or supply to others.
Generally, the person who actually creates a work owns its copyright. This is the case even if the work was commissioned and the creator was paid to create it. However, there are exceptions. As a general matter, employers own the copyrights in the works that their employees create within the scope of their employment. Special rules are applied to determine who qualifies as an “employee” for this purpose. In addition, with respect to a limited number of types of works – such as encyclopedias, tests, audiovisual works, and compilations – the party that commissions a non-employee (e.g., freelancer) to create the work pursuant to a written work-for-hire agreement signed by both parties will be considered the “author” and owner of the copyright. Ownership of a copyright can also be acquired through a written assignment from the author.
How Long Does Copyright Protection Last?
For most works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright term is 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. Your attorney can help you to determine the length of copyright protection for works that predate 1978.
Copyrights are registered with the Copyright Office of the Library of Congress by submitting an application to the Registrar of Copyrights along with a modest fee and a “deposit” of the work being registered. The particular application form that must be used and the deposit requirements vary depending on the type of work being registered. Registration is not required to own a copyright. However, the cost of registering a copyright is fairly modest and the benefits from registration can be significant. In most cases, registration is a prerequisite to filing a lawsuit to enforce the copyright. Furthermore, with some exceptions, certain infringement remedies, such as statutory damages and attorney’s fees, are only available if the copyright is registered before the infringement begins.
Enforcement of Rights in a Copyright
A copyright is infringed when someone violates one of the exclusive rights of the copyright owner; for example, by using a photograph in an ad campaign without the photographer’s permission, installing software on more than one computer that is licensed only for use on a single computer, or creating a derivative work (such as a sequel) based on a copyrighted work. Any lawsuit asserting claims of copyright infringement must be brought in federal court. Remedies include injunctive relief and recovery of damages.