Copyright Technical Page
WHAT IS A COPYRIGHT? - A copyright is a limited grant by the federal government to an author or artist of the right to exclude others from reproducing or copying his entire work or any substantial parts of the work and thereby encourage the original expression of authors or artists in the form of words, pictures, music, etc. The creator basically is given the exclusive rights to reproduce the work, to distribute the reproductions, to display and perform it publicly, to revise and prepare derivative works based on it, and to license or authorize others to do any of these things.
Copyrightable works include: literary, musical and dramatic works; pantomimes and choreographic works, pictorial, graphic and sculptural works (including the non-utilitarian design features of useful articles); motion pictures and other audiovisual works; sound recordings; multimedia products; synchronization rights; and also compilations of works and derivative works.
WHAT IS PROTECTED? - Copyright protects only the original particular expressions of ideas, NOT the ideas themselves. The work must be original, i.e., not copied, and of sufficient creativity to be more than basic or elemental in nature. The United States Supreme Court held a few years ago in the case of Feist v. Rural Telephone that the Constitution requires "sufficient originality" in the work to grant protection and that the "sweat of the brow" in assembling information does not give a right to copyright protection. This case held that telephone white pages are not entitled to copyright protection. However original books, brochures, bulletins, catalogues, prints, labels, commercial package designs, some product designs, photographs, advertisements, movies, video tapes, sound recordings, etc., which are prepared by or for your company can be protected through copyright.
Since copyrights protect only the form of expression, the ideas presented in a work are available for others to use. In fact, if a work discloses your company's trade secret, publication of the work would constitute public disclosure of that secret and would terminate any proprietary rights the company might have had. If a new invention is revealed, publication might serve as a statutory bar to obtaining a valid patent.
Questions regarding any publication or public presentation which might be copyrightable should be discussed with a qualified patent attorney before the work is made public. The desirability of obtaining a copyright or the procedure for securing protection should also be determined by an attorney.
WHO OWNS A COPYRIGHT? - Individual or joint authors of an original work are deemed the owners of the copyright. However, an employer is deemed to be the "author" of a "work made for hire" when the work was done by an employee in the scope of his employment or when a work was specially ordered and is agreed to be a "work made for hire" in a written contract. A copyright owner may license any or all of its rights, thereby collecting royalties on the copyrighted material. The owner may even sell its rights and transfer ownership of the copyright. In these ways, your company can realize substantial benefits from this financial asset.
HOW COPYRIGHT PROTECTION IS OBTAINED - Whenever a copyrightable workhas been reduced to a tangible, copyable form, it is protected by federal copyright law.
WHAT CONSTITUTES COPYRIGHT INFRINGEMENT? - Any unauthorized use or copying of a copyrighted work is considered infringement. If a copyright owner can prove the infringer had access to the work and the infringing work is substantially similar to the original, an accused infringer bears the burden of proving his work to be an independent creation. Unauthorized importation also falls Into the category of infringement despite legality of production and distribution in other countries.
COPYRIGHTS GENERALLY
The 1976 Copyright Act completely overhauled copyright law in the United States. Its provisions are contained in Title 17 of the U.S. Code. All section references here are to Title 17. It is effective with respect to works created on or after January 1, 1978. Works copyrighted under the 1976 Copyright Act have duration of the author's life plus 50 years (Section 302(a)) and in the case of joint authors the duration is measured from the death of the last to die (Section 302(b)). Works copyrighted under the 1909 Copyright Act (the predecessor to the 1976 Act) have a term of 28 years and are subject to renewal for an additional term of 47 years (Section 303). Works created but not published or copyrighted before January 1, 1978 have the same duration as those created on or after January 1,1978 except that they also have a minimum term to December 31, 2002 and if published prior to such date the term shall not expire before December 31, 2027 (Section 302).
The federal statute preempts state law and common law with respect to that which may be copyrighted under the Act. State law and common law is not preempted with respect to subject matter that does not come within the subject matter of that which is copyrightable, including works of authorship not fixed in any tangible medium of expression. See Section 301. The process for registration of a work is set forth in Sections 407 through 412 of the Copyright Act. It involves deposit of copies of the work with the Copyright Office or the Library of Congress together with payment of a fee and completion of an application. Even though copyright protection exists absent registration a suit for copyright infringement may not be brought prior to registration. See Section 411.
TRANSFERS OF COPYRIGHTS
Section 101 of the Copyright Act contains a definition of 'transfer of copyright ownership', as follows: 'A 'transfer of copyright ownership' is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.' It is important to note that mortgages are expressly denominated as transfers of copyright ownership unlike under the patent statute or the trademark statute.
Section 205 of the Copyright Act provides for the recordation with the Copyright Office of transfers of copyright ownership and other documents pertaining to copyrights. Recordation provides constructive notice of the facts set forth therein and is a prerequisite for an infringement action brought with respect to a United States work under the Copyright Act (although suit may be brought after recordation on a cause of action which arose prior thereto).
Section 205 also provides for priority rules as to conflicting interests. These priority rules are as follows:--as between two conflicting transfers the transfer executed first has priority if (a) it is recorded within one-month of its execution in the United States or two months after its execution outside the United States or (b) it is recorded prior to the recordation in such manner of the later transfer or © the later transfer, even if recorded first, is not made for valuable consideration (determined under state law since the copyright law does not define valuable consideration) or on the basis of an agreement to pay royalties or the later transferee has notice of the prior transfer. --as between a nonexclusive license and a conflicting transfer of copyright ownership the nonexclusive license will prevail if it is in writing and signed and either (a) the license was taken before execution of the transfer or (b) the license was taken in good faith prior to recordation of the transfer and without notice of it.
All transfers of copyright ownership are subject to the right of the author and certain of his heirs to terminate the transfer. The termination right is not waivable and not transferable and may be effected notwithstanding any agreement to the contrary. The law regarding termination with respect to works created on or after January 1, 1978 is set forth in Section 203 of the Copyright Act, while for works prior to such date the applicable statutory section is Section 304(c). Generally, a five year termination period is established commencing at the end of 35 years from the date of grant with respect to works created on or after January 1,1978 and commencing at the end of 56 years from copyright date with respect to works created on or prior to January 1,1978
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