Copyrights

What is copyright? Copyright is a form of intellectual property protection granted by the United States law for original works of authorship fixed in a tangible medium of expression. The works must be original to the author, and the fixation in a tangible medium must allow for later perception of the work. Examples of tangible mediums are books, manuscripts, sheet music, film, videotape, or microfilm.

Copyright attaches automatically when the work is created in a fixed form and immediately becomes the property of the author who created the work. Copyright protection is currently available to both published and unpublished works, provided the requisite conditions are met. I have advised various authors, artists and goods manufacturers on copyright procurement, licensing and copyright disputes.

What is protected by copyright? The original works of authorship may include literary, dramatic, musical, artistic, choreographic, pictorial, graphic, sculptural, motion pictures, sound recordings, architectural and certain other intellectual works. Even vessel hulls or well-developed fictional characters may be protected, such as Disney's animated characters. Copyrightable works include original poetry, novels, movies, songs, and computer software. Computer programs, for example, may be registered as literary works, and maps and architectural plans may be registered as pictorial, graphic, and sculptural works.

What is not protected by copyright? Copyright does not protect facts, ideas, systems, procedures, processes or methods of operation, but it may protect the way these things are expressed. Works that are generally not eligible for federal copyright protection include works that have not been fixed in a tangible medium (choreographic works, improvisational speeches or performances that have not been recorded); concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; titles, names, short phrases, and slogans; variations of typographic ornamentation, lettering, or coloring; listings of ingredients or contents; works consisting entirely of information that is in the public domain (calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

When can I use a copyright notice? When a work is published, it may include a copyright notice to inform the public that the work is protected by copyright and to identify the year of publication and the name of the copyright owner. Use of the notice on published copies is important in the event that the work is infringed. Someone who knows of copyright protection cannot claim “innocent” infringement of the work.

A proper copyright notice includes: (1) The symbol © , the word "Copyright," or the abbreviation "Copr."; (2) The year of the first publication of the work; and (3) The name of the owner of copyright in the work. Example: © 2010 Leo Mikityanskiy (for phonorecords of sound recordings, a "P" in a circle is used instead of a "C" in a circle).

What rights do I get if I copyright something? The owner of the copyright in a work has the exclusive rights to do the following (or authorize others to do so): (1) make copies or reproductions of the work; (2) create derivative works based on the work; (3) to distribute, sell, rent, lease, or lend copies of the work to the public; (4) to perform the work publicly; (5) to display the work publicly; and, (6) in the case of sound recordings, to perform the work publicly by a digital audio transmission (the DAT right).

Why register a copyright? Registration is not a requirement for copyright protection. In fact, registration may be made at any time within the life of the copyright. However, it is very useful to register works as soon as reasonably possible for a number of reasons. First, to file an action for copyright infringement in a federal district court, the owner must register works of U.S. origin. Second, certain copyright infringement damages may not be available to the copyright owner who registers only immediately before filing an infringement lawsuit. To receive statutory copyright damages and attorney's fees in an infringement action, the copyright registration must be made within three months after publication of the work or before the infringement of the work. Third, the copyright law provides several other significant advantages to copyright owners who register their works. These advantages include: (1) registration establishes a public record of the copyright claim; (2) registration is prima facie evidence in court of the validity of copyright and the facts stated in the registration certificate if registration is made before or within five years of publication; and (3) registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

How long is the duration of the copyright protection? Copyright of a work created today is protected from the moment of its creation, generally for the author's life plus an additional 70 years after the author's death (70 years after the last surviving author's death for joint works). Works made for hire receive the shorter of 95 years from publication or 120 years from creation. The ownership of copyright in works can be transferred just as any other property, and it passes to the author's heirs after the author's death.

Who can register a copyright in the United States? Anyone who is a citizen or resident of the United States, or citizen or resident of a country that has treaties or conventions with the United States concerning copyright protection can apply for copyright registration in the US. Some examples of these treaties and conventions include the Berne Convention for the Protection of Literary and Artistic Works, the World Intellectual Property Organization (WIPO) Copyright Treaty, and the Universal Copyright Convention.

If you wish to discuss your intellectual property matter, including patent, international patent, copyright, trademark, trade secret, or licensing, contact Leo Mikityanskiy today at 718-256-3210.