Copyright Questions

What does copyright protect?

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The owner of a copyright has the exclusive right to do and to authorize any of the following:

  1. Reproduction of the copyrighted work in copies (material objects) and phonorecords
  2. Preparation of derivative works based upon the copyrighted work.
  3. Distribution of copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
  4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.
  5. 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, to display the copyrighted work publicly.

What can be protected by copyright?

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Copyright protection exists for original works of authorship when they become fixed in a tangible form or expression. Copyrightrable works include works in the following categories:

  1. Literary works including computer programs and most compilations.
  2. Musical works including any accompanying words.
  3. Dramatic works including any accompanying music.
  4. Pantomimes and choreographic works.
  5. Pictorial, graphic and sculptural works.
  6. Motion pictures and other audiovisual works.
  7. Sound recordings.

What is not protected by copyright?

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Titles, names, trademarks, lists of ingredients, and other short phrases and combinations of words, similar symbols and designs can not protected by copyright. For example, one court held the phrases “Telegram,” “Gift Check” and “Priority Message” on envelopes to lack the minimum creativity needed for copyright protection. Basic geometric shapes, such as circles, squares, rectangles and ellipses, are also not protected by copyright.

The format and typography of a work are not protected. Works not fixed in tangible form are not protected by copyright.

Copyright does not protect mere ideas, procedures, methods, systems, processes, concepts, principles or discoveries as distinguished from a description, explanation or illustration.

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.

Works consisting entirely of information that is common property and containing no original authorship, for example, standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources are also not protected by copyright.

Can a website be copyrighted?

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Original writings, artwork, photographs, and other forms of authorship appearing on a website can be protected by copyright.

Who owns a copyright?

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Copyright is owned by the author of a work unless there is a written agreement by which the author assigns the copyright to another person or entity. In cases of a work made for hire, the employer and not the employee is presumptively considered the author.

The authors of a joint work are co-owners of the copyright in the work unless there is an agreement to the contrary.

What is a work for hire?

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A work made for hire is:

  1. A work prepared by an employee within the scope of the employee’s employment. or
  2. A work specially ordered or commissioned for us as a contribution to a collective work, such as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Is copyright registration mandatory?

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No. Under present copyright law, an original work is protected by copyright as soon as it is created and fixed in any tangible medium of expression from which the work can be perceived, reproduced, or otherwise communicated, either directly, or indirectly, with the aid of a machine or device. Registration with the Copyright Office is not mandatory but there are certain significant legal benefits that arise from a timely registration.

What are the benefits of a copyright registration?

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Registration is ordinarily necessary before any infringement suits may be filed in court, except in the case of foreign owners. If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

How long does it take to obtain a copyright registration?

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The Copyright Office indicates that a copyright registration will ordinarily be issued in about 3-1/2 to 4-1/2 months in the case of online filing with an uploaded electronic deposit copy. Processing time for online filings with a mailed physical deposit copy takes about 4-1/2 to 7-1/2 months from the date of submission. Applications filed by mail are receiving a certificate of registration in about 18 to 20 months. All dates are approximate and may vary. In special circumstances, it is possible to further expedite the issuance of a copyright registration.

What is the duration of a copyright in the United States?

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For works that are created on or after January 1, 1978, copyright protection automatically begins when the work is actually created and fixed in a tangible form. The duration of copyright for a work created by a single author is the author’s life plus 70 years. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Under the law in effect before 1978, copyright was secured either on the date a work was published with notice of copyright or on the of registration if the work was registered in unpublished form. In either case, copyright lasted for a term of 28 years from the date on which it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The copyright law extends the renewal term from 28 years to 67 years for copyrights in existence on January 1, 1978.

Anything first “published” before 1925 is in the public domain.

What is publication?

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Publication is the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance or public display also constitutes publication. A public performance or display of a work does not itself constitute publication.

Is a copyright notice mandatory?

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The 1909 Copyright Act and the 1976 Copyright Act as originally enacted (effective January 1, 1978) required a notice of copyright on published works. Under the 1909 Copyright Act, publication in the United States or elsewhere with authority of the copyright owner without notice resulted in the work falling into the public domain. As originally enacted, the 1976 Copyright Act required that all visually perceptible published copies of a work, or published phonorecords of a sound recording, should bear a proper copyright notice. This applies to such works published before March 1, 1989. After March 1, 1989, notice of copyright on these works is optional. Use of a notice, however, is recommended.

Should a copyright notice be used?

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Yes. Although use of a notice is no longer mandatory, the failure to use a copyright notice may provide an infringer with an innocent user defense.

How should a copyright notice be used?

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The notice should include the symbol “©” (the letter “©” in a circle), or the word “Copyright” or the abbreviation “Copr.”, the year of first publication of the work, and the name of the owner of copyright in the work.Example: © 1999 John Doe

Can copyright protection be restored for works in the publicdomain?

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The North American Free Trade Agreement Implementation Act (NAFTA) and the Uruguay Round Agreements Act (URAA) may restore copyright in certain works of foreign origin that were in the public domain in the United States.

What is copyright infringement?

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Anyone who violates the exclusive rights of the copyright owner or who imports copies or phonorecords into the United States, without the authority of the copyright owner, is an infringer of the copyright.

What remedies are available for copyright infringement?

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An infringer is liable for either the copyright owner’s actual damages and any additional profits of the infringer or statutory damages. Recovery is alternative and for the copyright owner to elect. If statutory damages are elected, a court may award between $750 and $30,000. The amount may be increased to a maximum of $150,000 in cases of willful infringement or reduced, in cases of certain “innocent” infringements, to $200. The amount of statutory damages may be multiplied if separate works and/or separately liable infringers are involved. If a proper copyright notice is used, then no weight will be given to a defense by an infringer on innocent infringement in mitigation of actual or standing damages. The court may also award attorneys fees to the prevailing party. However, statutory damages and attorneys fees are not available if the copyright is not registered prior to infringement or within three months of publication.

What is fair use?

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Fair use is a use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research and is not an infringement of the copyright. due to the endless variety of situations and combinations of circumstances that can rise in particular cases, the distinction between “fair use” and infringement may be unclear and not easily decided. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

In determining whether a use is a fair use, the copyright law sets forth four factors to be considered:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

When it is impracticable to obtain permission to use a copyrighted work, use of copyrighted material should be avoided unless a competent legal opinion has been obtained indicating that the doctrine of “fair use” would clearly apply to the situation.

What is a derivative work?

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A derivative work is a work derived from another work. A translation, musical arrangement, and sound recording are some examples of a derivative work.  The term “derivative work,” also known as a new version, refers to additions, changes or other new material added to a preexisting, copyrighted work.  Examples of derivative works include translations of an existing work from one language into another language, a revision of a previously published book, the creation of abridgements, annotations or editorial revisions of prior stories, a drawing based on a photograph, a sculpture based on a drawing, a new version of an existing computer program, a revision of a website, remixing existing music, film sequels using characters and other elements from the original film, as well as other modifications which, as a whole, are original and copyrightable.  Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes.

Who Has The Right To Produce a Derivative Work?

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The copyright owner of the original work has the right to produce a derivative work.  However, the copyright owner can grant permission to others to make a derivative work.   Copyright protection will not extend to any art of a new version of a work in a case where copyrighted material is used unlawfully without permission of the copyrighted owner.  The unauthorized adaption of a work may constitute copyright infringement.