Intro To Copyrights

Copyrighting one’s work is a very important tool to protect the way that someone chooses to express an idea. Copyrighting does not protect the actual idea or the facts, but rather protects the person’s unique way of expressing those ideas or arranging those facts.

In order for an item to be qualified for copyrighting it must be:

  1. Original,
  2. Fixed in a tangible medium of expression, which means the ideas and facts must be put in a tangible form (book, poster, website, canvas), and
  3. Must contain at least a minimum amount of creativity

Unlike trademarks and patents, copyright protection attaches the second that the ideas and facts are placed in a tangible medium of expression. It is appropriate to place a small ©, the year that the idea was fixed, and the copyright owner’s name some place on the copyrighted material in order to put the world on notice of the protection.

In most instances, a work is copyright protected for the life of the author plus another 70 years, presuming that the work was fixed after 1978.

The U.S. Copyright Office, which is a branch of the Library of Congress, regulates and oversees federal copyright laws. The U.S. Copyright Office also manages applications for copyright protection. A person is not required to submit a formal copyright application in order to receive the copyright law protections. However, a person cannot commence litigation for copyright infringement unless and until it formally applies for the copyright protection with the U.S. Copyright Office.

A formal application for copyright protection may be done online at www.copyright.gov or it may be done in paper form. The fee is about $35.00 if submitted online and $65.00 if submitted in hard paper form. An applicant is required to fill out some general information about themselves and the thing they intend to copyright. They are also required to submit a copy of the copyrighted material and pay the fee before the application is complete.

The timeframe to get formal copyright registration approval varies depending on the material. The U.S. Copyright Office is charged with investigating whether the material meets the three-prong requirement to be eligible for copyright protection  1. Original, 2. fixed in tangible medium of expression, and 3. minimally creative.

As stated previously, formal copyright registration is a prerequisite to filing a suit for copyright infringement. In instances where a person has not registered for formal copyright protection and the person is worried about continued infringement, the U.S. Copyright Office offers expedited registration for $500.00.

Another benefit of formal copyright registration is that if done either within three months of the first time it was fixed or before the infringing activity occurred the copyright owner might be eligible for statutory damages and attorney’s fees, should the dispute end up in court. This is particularly attractive because it helps defer fees to the infringing party.

There are a few other important pieces of information to be aware of in regards to copyright infringement litigation. First of all, the copyright owner must be able to prove that the infringing party had a reasonable opportunity to view/hear the copyrighted material. This information is presumed if the infringing work is identical.

Also, it is important to make sure that if you know someone is infringing on your copyrighted material that you do not sit on your rights for too long. The statute of limitations for civil copyright cases is three years from the date that the copyright owner discovered the infringing work.

Generally speaking, there are some issues related to copyright that are usually an issue of contention in copyright infringement cases: permission, works for hire, derivative works, fair use, and public domain.

Permission and Consent

Permission and consent is always a defense to any copyright infringement claim.

Works for Hire

A person who is hired either as a contractor or as an employee to create a work for another entity or person is not considered the “owner” of the work. Therefore, any copyright protection would inure to the person or entity who paid for the work to be created.

Derivative Work

This is a term used for work that is based off of another work that is already exists and is fixed (i.e. making a movie out of a novel, making a short story out of a picture). The copyright owner of the preexisting work has free reign to make any type and as many derivative works as it wants. If another person wants to make a derivative work out of someone else’s preexisting work, it must first get permission to do so.

Fair Use

Fair use is also a defense to copyright infringement. Fair use is applicable if a person does not need permission from the copyright owner to use the copyrighted material because it is used:

  1. In connection with some sort of criticism or comment of the work
  2. The person is using the work to report the news
  3. The person is using the work for teaching purposes, or
  4. The person is using the work for research purposes

The courts look at four factors to determine whether a use of a work was fair use. The courts may use their discretion to consider other factors to determine fair use as well.

The first factor to consider is the purpose and character of the use. For instance, did the allegedly infringing party use the work for commercial gain or education or news reporting purposes. This prong requires the court to examine whether the work is “transformative”, which means that the allegedly infringing person changed the original in some way to add new or different meaning.

The second factor to consider is the nature of the work. In order to determine this factor, the court will consider what was copied. If the original work was fact driven (i.e. the news), then it’s more likely that the nature of work was fair use.

The third factor is the amount of work that was copied. If the allegedly infringing person copied a lot of the work then it’s less likely that fair use applies. If, however, it copied only a small part, then fair use is more likely to apply.

The final determination of fair use is the effect that the use had the on the value or potential market for the copyrighted work. If the fair use had a significant effect on the market value of the copyrighted work it is less likely that fair use would apply.

Public Domain

If work is within the public domain it means that anyone can use the work without seeking prior permission from the owner or fearing a copyright infringement action. A work could fall within the public domain if it consists of only facts or ideas that could not be copyright protected, if it was published during a period of time when copyright protection did not apply, if the owner put the work in public domain, or if the copyright protection term has run.

 

Copyright protection is a very easy and quick way to protect an expression of ideas and facts. If you have any other questions please feel free to e-mail me and I will try to answer your questions at least point you in the right direction.