A copyright protects only original works of “authorship” included in the
following seven categories:
(1) Literary works (including computer programs)
(2) Musical works, including any
(3) Dramatic works including any
accompanying musicality thereof
(4) Pantomimes and choreographic works
(5) Pictorial graphic, and sculptural works
(6) Motion pictures and other audiovisual
(7) Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds
(8) Architectural works
The 1976 Copyright Act abolished common law copyright and provided express protection for computer programs and databases. A copyright can be claimed for either published or unpublished works and exists at the time the work is created. The 1989 Amendment to the Copyright Act added Architectural Works.
Copyright protects original works of
authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
The owner of a copyright has the
exclusive rights to do and authorize:
(1) the reproduction of the
copyrighted work in copies or
(2) the preparation of derivative works;
(3) the distribution of copies or phono records 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, the
performance of the copyrighted work
(5) in the case of literary, musical,
dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including individual images of a motion picture or other audiovisual work, the display of the copyrighted work publicly; and (6) in the case of a sound recording, perform the work publicly by means of a digital audio transmission.
The term of copyright is the life of the author plus 70 years after the author’s death. If the work is a joint work with multiple authors, the term lasts for seventy years after the last surviving author’s death. For works made for hire and anonymous or pseudonymous works, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.
It is important to distinguish the ownership of a copyright and the ownership of the material object in which the copyrighted work is embodied. Simply put, you may own
a book, but unless you have the permission of the copyright owner, you have no right to make copies of the book.
Initial ownership in a copyright resides in the author or authors. In the case of a “work made for hire” (see Circular 30,
https://www.copyright.gov/circs/circ30.pdf), the employer or other person for whom the work was prepared is considered the author. Note: whether a work is a work made for hire is determined by facts in existence at the time the work is created. There are two situations in which a work made for hire is produced:
(1) when the work is created by an employee as part of the employee’s regular duties and
(2) when a certain type of work is created as a result of an express written agreement between the creator and a party specially ordering or commissioning the work. A copyright may be assigned, and the assignment may be recorded in the Copyright Office. Recordation serves as constructive notice.
Although not the strict requirement it once was after the U.S. became a signatory to the Berne Convention in 1989, it is recommended that the Statutory notice be applied to published works. The notice should be provided in the form of (1) either
the symbol ©, “copyright” or “copr.”, (2) the year, and (3) the name of the owner of the copyright.
Registration is not a prerequisite to a claim of copyright. You should,
however, register your copyright
within five years of first publication since a registration within five years is considered prima facie evidence of the validity of the registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation.
Registration is a simple process requiring only that you file an application with the required deposit and payment of the fee. An application for copyright registration contains three essential elements: a completed application form, a non-refundable filing fee, and a nonreturnable deposit—that is, a copy or copies of the work being registered and “deposited” with the Copyright Office. The Copyright Office encourages online registration which offers the benefits of lower filing fees and faster examination. The registration form for Class TX, nondramatic literary works, is used for computer programs as well as technical manuals. The deposit requirement for a computer program which is fixed or published only in the form of machine-readable copies is one copy of
identifying portions of the program,
reproduced in a form visually perceptible, either on paper or in microform. The Copyright Office prefers source code but will accept object code. If source code is deposited, it is possible to delete portions of it that are considered to be a trade secret.
© 2019 Whitham & Cook, P.C.