Copyrights

The right by law to be the entity which determines who may publish, copy and distribute a piece of writing, music, picture or other work of authorship

Copyrights are a collection of rights that are granted to authors to protect their “original works of authorship”.  A “work of authorship” is anything that has some element of creativity, and includes such things as: literary works (including books and computer programs); musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works (including maps and architectural plans); motion pictures and other audiovisual works; sound recordings; and architectural works.

More specifically, under US Copyright law, authors are given the exclusive 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;
  • 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.

The general rule is that the “author” is the person that created the work.  Exceptions are “works made for hire”, in which case the employer or person commissioning the work is the author.  To classify as a “work made for hire”, the work must be either: (i) prepared by an employee within the scope of his or her employment, or (ii) specially commissioned and prepared by an independent contractor and subject to a written agreement.  Like any other property, copyrights can be assigned.

An author’s copyrights in the works come into existence automatically upon creation.  Registration of the copyrights with the US Copyright is not required to create the right, however, registration is required prior to instituting a lawsuit for copyright infringement.  Additionally, there are significant differences with regard to the remedies for copyright infringement depending on when the work is unlawfully copied.  In general, if the infringement occurs before registration, only actual damages can be recovered.  If the infringement occurs after registration, statutory damages of up to $150k and attorney fees are allowed.

It is important to note that the work does not have to be registered before using the copyright symbol “©”.  However, placing the symbol, along with the year of creation, and the artist’s name puts people on notice that the artist is claiming rights in the work.  Under certain circumstances, use of the copyright symbol on the work can cut off an infringer’s claim that the infringement was “innocent”.

Applications for copyright registration are inexpensive and filed directly with the US Copyright Office.  The application process typically lasts about nine months.  For works that have been published, two copies of the work must be submitted: one copy is used by the US Copyright Office and the other copy is sent to be included in the US Library of Congress.

Similar other intellectual property rights, you must have the permission of the copyright owner to use all – or even a portion – of the work.  There is public misconception about “fair use” of another’s work: many people incorrectly believe that you can use up to 10% of the material without obtaining the copyright owner’s permission.  The question is not of quantity but of quality, and the proper inquiry starts with resolving how much of the artistic creation is being used.  In addition to “fair use”, there are a number of other very narrow instances where permission from the copyright owner is not needed, including use of the material for commentary, criticism, news reporting, research, teaching or scholarship, archiving, or access by the visually impaired.

If you are interested in seeking protection for your work of authorship, or you have questions about your proposed use of another’s, you should contact an intellectual property attorney (such as Mr. DiBuduo) who is knowledgeable in copyright matters.