How to Protect Your Copyright

In order to promote the progress of science and useful arts and give the people incentive to create and commercially leverage their works, U.S. Copyright law protects the exclusive rights of the creators of the work, which is subject to copyright.

 

Copyright law protects the “original work of authorship fixed in tangible mediums of expression”. So in order to be protected the work must be 1) created by the author seeking to register it (created independently); 2) original (not copied from somewhere in whole or in part); 3) creative (not a plain compilation of information); 4) fixed in a tangible mediums of expression (not merely an idea or plan to create in the future); and 5) non-utilitarian in nature (copyright protects only expression, not function. Functions are protected by Patent law).

 

An idea itself is not protectable until it is put into a tangible form. The works protected by Copyright law include:

 

·        Literary works

·        Musical works

·        Dramatic works

·        Pantomimes and choreographic works

·        Pictorial, graphic and sculptural works

·        Motion pictures and other audiovisual works

·        Sound recordings

·        Architectural works

·        Vessel hulls

 

Who can claim copyright?

 

      Author or those deriving their rights through the author, unless

      Exception – Work for Hire - a work prepared by an employee within the scope of his/her employment or a work specially ordered for certain uses if the parties expressly agreed in writing that the work shall be considered a work made for hire

      Joint ownership – when there are two or more authors

      Collective work – ownership of the part of the work

      Ownership of the medium, such as a book or painting, does not give the possessor the copyright to the original work

 

Copyright law grants and protects only certain rights of the original author, listed below:

 

·        Right to reproduce the work

·        Right to prepare derivative works

·        Right to distribute copies of the work to public (sell, rent)

·        Right to perform the work publicly

·        Right to display the right publicly

·        For sound recordings: right to perform the work by means of a digital audio transmission

 

Copyright Term

 

      Known author and his/her heirs - author’s lifetime plus 70 years after

      Corporate author, work for hire, anonymous -  95 years from the moment of its first display or 120 years from its creation, whichever is shorter

      Before the expiration of the original term of protection the heirs can renew and prolong their ownership rights

      If no renewal action is made, the copyrighted work becomes public domain and is available for public use

 

Federal Registration of copyright confers several significant advantages to copyright owners:

 

·        Creates public record of owner’s copyrights

·        Without proper registration it can be challenging for the owner to prove anywhere that the initial creation of the work belongs to him/her

·        Registration is required to bring a lawsuit in U.S. Federal court

·     If registration is made within five years of public display of the work, it establishes prima facie evidence of copyright validity and facts stated in the registration certificate

·       In case of infringement the claimant must have a duly registered work to qualify for statutory damages and attorney’s fees. While in case of violation of somebody’s copyrights the actual damages may not be significant (if the claimant did not lose big profits from his work being unlawfully used by others) the statutory damages are significant and the threat of them can stop many parties from unfair business practices. For example, provided that the claimant did not sustain a great loss, the statutory damages awarded under normal circumstances may be up to $30,000 and $30,000-150,000-for willful infringement

·        Registration allows copyright owner to have U.S. customs prohibit importation of infringing copies of the work.

 

The copyright owner cannot stop others from using his/her work all together. There are certain exceptions to the copyright infringement.

 

      “First Sale” doctrine – an owner of a particular copy of the work can sell or dispose that copy without the copyrights owner’s permission (e.g. a person who bought one book or disc, can later resell that same book or disc without being considered an infringer)

 

      “Fair Use” doctrine - the copyrighted work of others is not infringed if it is used for fair purpose

 

-         Criticism

-         Commentary

-         News reporting

-         Teaching

-         Scholarship

-         Research

-         Religious performance

-         Nonprofit performance

 

Factors to consider when determining whether the work was used under the “Fair Use” doctrine:

 

      Purpose and character of the use (commercial vs. not-for-profit, e.g. a book was used for education)

      Nature of copyrighted work (published vs. unpublished)

      Amount and substantiality of the portion used in relation to copyrighted work as a whole (was the main part of the work used or just a short excerpt)

      Impact of the use on the market value of the work (how much the unauthorized use influences the ability of the owner to distribute his/her work at the marker and its price)

 

The owner should use reasonable means to indicate to others his/her copyright. The good way to do it is to display a copyright symbol © followed by the date of creation and the owner’s name on each piece of the displayed work. This notice informs the public that the work is protected by copyright, shows when it was first created, identifies the copyright owner and defeats the defense of innocent infringement.

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