Copyright is a form of legal protection for original works of authorship that are fixed in a tangible medium of expression. Under the United States Copyright Act, original means that there must be some minimal degree of creativity. The threshold for meeting this requirement is low. It’s met as long as the work possesses some creativity “no matter how crude, humble or obvious it might be.”
Works Eligible for Copyright Protection
Works of authorship include:
- Literary, musical and dramatic works
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works
- Sound recordings
- Motion pictures and other audio-visual works
- Computer programs
- Compilations of works and derivative works
- Architectural works
The tangible medium of expression through which the works of authorship are fixed must be able to be “perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This includes, but isn’t limited to, any electronically readable formats (such as email or computer memory storage), audio recordings, video recordings, or articles in a newspaper or magazine.
Your work becomes copyrighted when you “fix” it in a tangible medium of expression. Once you do, the work immediately becomes your property without any further action on your part, including placing a copyright notice on the work. For works made for hire, the employer is considered the author and therefore holds the copyright to that work.
According to the U.S. Copyright Office, things that aren’t copyrightable include:
- Ideas, processes, systems, methods of operation, concepts, principles or discoveries incorporated into a work.
- Titles, names (including business names), short phrases and slogans, and product descriptions. However, these things may be protected with a trademark.
- Commonly known information such as facts, news, and research. Examples include standard calendars, height and weight charts, and telephone directories.
- Works that aren’t fixed in a tangible medium of expression. Examples include performances, choreographic works, and speeches that haven’t been recorded, notated or transcribed.
- Works in the public domain. Examples include works of U.S. government employees created in their capacity as employees.
- Fashion articles (i.e. articles of clothing and accessories). Although copyright law protects architectural design works and visual arts works, clothing and accessories are considered “useful articles” and thus not copyrightable. However, specific fabric patterns may be copyrightable and clothing designs may be patentable.
Rights as a Copyright Holder
As the owner of a copyright, you have the exclusive right to do any of the following, or to let others do any of the following:
- Copy your work.
- Distribute or sell your work to others in your discretion.
- Create “derivative works” of your work, including modifying, adapting, or making new uses of your work. An example includes making a movie adaptation of a novel.
- Display your work in public. Examples including showing a painting, statue, or other work of art in public.
- Perform your work publicly. An example includes playing your own music at a concert.
Your exclusive rights aren’t permanent. Copyright law lets you keep them for a defined period of time. This period of time depends on when you created the work:
- Works created after January 1, 1978 have a copyright for the life of the author plus 70 years. For a joint work of authorship, with two or more authors, copyright protection extends for 70 years after the death of the last surviving author.
- Works created before 1978 have a copyright which varies depending upon the year it was created.
- A work created anonymously, or as a work for hire (i.e. a work created by an employee as part of his/her job, or a work specially ordered or commissioned for use by another) has copyright protection for 95 years from its publication date, or 120 years after its creation date (if not published). “Publication” means that your work is made available to the world.
Once the period of copyright protection for your work ends, it falls into the public domain (i.e., the public owns your work), and you lose your rights to the work.
In addition to time limits, the exclusive rights to your copyrighted works are subject to certain exceptions which try to balance these rights against the interests of society in using them. The most important, and most often used, exception is the fair use doctrine. Under the fair use doctrine, limited use of a copyrighted work for news reporting, criticism or comment, teaching or research, is permitted without permission from or payment to the copyright holder. An example of fair use would be quoting a few lines from a movie in a movie review.
Registering Your Copyright
Although registration of your copyright is voluntary, it provides you with certain important benefits:
- It establishes a public record of the copyright claim to your work.
- It’s proof in court of your copyright as long as registration occurs within 5 years of publication.
- It’s necessary if you want to file a copyright infringement lawsuit in federal court. Also, if registration is made within 3 months prior to an infringement of the work, you’re entitled to seek statutory damages and attorney’s fees in your infringement action.
- Registration constitutes a public record of the copyright claim to your work.
To register your copyright, you must file an application with the U.S. Copyright Office and deposit a copy of your work with the Copyright Office.
While a copyright notice on your work isn’t required for that work to be considered copyrighted, using it is helpful in a number of ways:
- It informs the public that your work is protected by copyright.
- It identifies you as the copyright owner and shows the year of first publication.
- If your copyright is infringed, a copyright notice eliminates any claim of innocent infringement by the infringer (i.e. where the infringer claims ignorance about whether the work was protected by copyright).
A copyright notice for visually perceptible copies of a work should include these elements, together or in close proximity:
- The circle “c” symbol or the word “Copyright”.
- The year of first publication of your work.
- Your name as owner of the copyright. Example: “Copyright 2019 John Smith”).
Remedies for Copyright Infringement
If someone uses your copyrighted work without your permission (i.e. without a license, or where no exception to your exclusive rights exist, such as fair use), this is copyright infringement. Copyright infringement is a crime and it’s also the basis for a civil lawsuit by you against the infringer. To prove infringement, the court must find that (1) the infringing work is substantially similar to your work, and (2) the infringer had access to your work (i.e. they saw or heard it).
If you win a copyright infringement lawsuit, the infringer will have to pay you the money he/she made from using your work or that you would have made if there hadn’t been any infringement. As mentioned above, if you registered your copyright with the U.S. Copyright Office, the infringer may also have to pay you statutory damages. They will also be stopped from any further use of your copyright.
Becker Law LLC is committed to helping freelancers, creatives, and owners of small or medium businesses protect their intellectual property under copyright law. We provide assistance registering copyrights, as well as helping you determine whether you have a claim for copyright infringement. Schedule a consultation to learn more.