Intellectual Property Copyrights   Securing Copyright Copyright protects creative expression from being copied, distributed, modified, performed or displayed without permission from the owner. What subject matter can be protected by copyright? Copyright protects creative expression in a wide variety of forms, including: literary works, computer software, musical works (the lyrics, the musical score, and the sound recording of the work), dramatic works, pantomimes and choreographic works, pictures, graphics of any type in any medium, sculptural works, photographs, videos, motion pictures, and architectural works, among many others. What cannot be protected under the copyright laws? Generally, only the expression of an idea or fact is copyrightable, and thus several categories of material are generally not eligible for federal copyright protection. These include, among others: Works that have not been fixed in a tangible form of expression, for example: choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded. Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. However, copyright protection may be available for logo art work that contains sufficient authorship, and, in some circumstances, an artistic logo may also be protected as a trademark. Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices (ideas, methods and systems not protected). Of course, the particular expression of an idea, (i.e., the particular explanation of the rules of a game) is protectable. 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. What must you do to create expression that is protected by copyright? The way in which copyright protection is secured is frequently misunderstood. For works that originate in the United States, copyright protection applies the moment the work is expressed in a tangible medium. No publication, registration or other action in the U.S. Copyright Office is required to secure copyright. There are, however, certain advantages to registration.   What Rights Apply Under the Copyright Law? Subject to a variety of limitations in the copyright law, the owner of a copyright has the following overlapping, exclusive rights: To reproduce the work in copies or phonorecords; To prepare derivative works based upon the work (derivative works are adaptations based upon the original work, such as a foreign language translation or an improved version of software); To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by renting, leasing or lending; To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; To display the copyrighted work publicly, 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; and In the case of sound recordings, to perform the work publicly by means of a digital audio transmission. In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.   Copyright Notice Form of Notice for Visually Perceptible Copies The notice for visually perceptible copies should usually contain all the following three elements: The symbol © (the letter C in a circle), or the word Copyright, or the abbreviation Copr.; and The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. Example: © 2000 Owner Name Recommended Additional Element It is recommended that the phrase All Rights Reserved be added at the end of the copyright notice. Although this phrase is not required in the United States, it provides some additional protection outside the United States, particularly in South America. The C in a circle notice is used only on visually perceptible copies. Certain kinds of works--for example, musical, dramatic, and literary works--may be fixed not in copies but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are phonorecords and not copies, the C in a circle notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded. Some copyright owners also include contact information (email address or telephone) for those seeking permissions relating to the work. Form of Notice for Phonorecords of Sound Recordings Sound recordings are defined in the law as works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work. Common examples include recordings of music, drama, or lectures. A sound recording is not the same as a phonorecord. A phonorecord is the physical object in which works of authorship are embodied. The word phonorecord includes cassette tapes, CDs, LPs, 45 rpm disks, as well as other formats. The notice for phonorecords embodying a sound recording should contain all the following three elements: The symbol (the letter P in a circle); and The year of first publication of the sound recording; and The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice. Example: (the letter P in a circle) 2000 A.B.C. Records Inc. Position of Notice The copyright notice should be affixed to copies or phonorecords in such a way as to give reasonable notice of the claim of copyright. The three elements of the notice should ordinarily appear together on the copies or phonorecords or on the phonorecord label or container. The Copyright Office has issued regulations concerning the form and position of the copyright notice in the Code of Federal Regulations (37 CFR Section 201.20).   Registering Copyrights - U.S. Registration Is registration necessary? No. In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. Registration is not a condition of copyright protection. Why bother registering? Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following: Registration establishes a public record of the copyright claim. Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin. If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorneys’ 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. 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. What is publication? Publication has a technical meaning in copyright law. According to the statute, Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication. Generally, publication occurs on the date on which copies of the work are first made available to the public. Publication is not necessary for copyright protection. What is involved in the registration process? Copyright registration involves: completing and filing the appropriate Application for Copyright Registration Form; payment of the appropriate filing fee; and submission of appropriate deposit materials. Registration may be made at any time within the life of the copyright. How long does the registration process take? The time the Copyright Office requires to process an application varies, depending on the amount of material the office is receiving. Generally, a certificate of registration issues within eight to twelve months of submission. Upon the payment of a rush fee, it is possible to obtain a registration certificate within five to ten business days. For more information contact us at (281) 486-7700. What is a deposit? A deposit is a sample of the work that is sought to be registered for copyright. The deposit is nonreturnable and deposit requirements vary in particular situations. If the work was first published in the United States on or after January 1, 1978, two complete copies or phonorecords of the best edition are required. If the work was first published in the United States before January 1, 1978, two complete copies or phonorecords of the work as first published are required. If the work is unpublished or was first published outside the United States, one complete copy or phonorecord of the work (as first published, if applicable) is required. If sending multiple works, all applications, deposits, and fees should be sent in the same package. If possible, applications should be attached to the appropriate deposit. Can I submit a CD-ROM of my work? Yes, you may. The deposit requirement consists of the best edition of the CD-ROM package of any work, including the accompanying operating software, instruction manual and a printed version, if included in the package. What if the deposit discloses trade secrets? Providing the standard deposit may disclose trade secrets, because the deposit becomes accessible to the public. In this case, the copyright owner has two options: Deposit object code instead of source code. In this case, the Copyright Office will only grant the copyright under a rule of doubt, which means that the Copyright Office is unable to verify that the submitted work is copyrightable. In a lawsuit, the copyright owner would have to prove this. Submit to the Copyright Office less source code and/or redact portions of the source code to prevent disclosure of trade secrets. How much does registration cost? The current fee filing fee is $30 per application. Generally, each work requires a separate application. Forms for Original Registration Form PA for published and unpublished works of the performing arts (musical and dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works) Form SE for serials: works issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely (periodicals, newspapers, magazines, newsletters, annuals, journals, etc.) Form SR for published and unpublished sound recordings Form TX for published and unpublished nondramatic literary works Form VA for published and unpublished works of the visual arts (pictorial, graphic, and sculptural works, including architectural works) Form G/DN, a specialized form to register a complete month’s issues of a daily newspaper when certain conditions are met Short Form/SE and Form SE/GROUP, specialized SE forms for use when certain requirements are met Short Forms TX, PA, and VA, short versions of applications for original registration. Form GATT and Form GATT/GRP, specialized forms to register a claim in a work or group of related works in which U.S. copyright was restored under the 1994 Uruguay Round Agreements Act (URAA). Forms for Renewal Registration Form RE for claims to renew copyright in works copyrighted under the law in effect through December 31, 1977 (1909 Copyright Act) and registered during the initial 28-year copyright term Form RE Addendum, accompanies Form RE for claims to renew copyright in works copyrighted under the 1909 Copyright Act but never registered during their initial 28-year copyright term Forms for Corrections and Amplifications Form CA for supplementary registration to correct or amplify information given in the Copyright Office record of an earlier registration For a Group of Contributions to Periodicals Form GR/CP, an adjunct application to be used for registration of a group of contributions to periodicals in addition to an application Form TX, PA, or VA   Who Owns Copyright? In any business relationship where creative expression will result, the parties should decide who will own the resulting copyright. For those seeking permission to use the work of others, it is important to understand the basic principles surrounding copyright ownership. Who owns the copyright, employees or employers, independent contractors or those who pay them? The general rule is that the author of the work owns the copyright. The author is the one who actually creates the work involved. This presumption is altered only when there is a written agreement signed by the author that assigns the copyright. In the case of work created by an employee in the course of employment, the presumption is generally that the employer, not the author, owns the resulting copyright. Again, this presumption can be altered by a written agreement. Who is an independent contractor? An independent contractor is a person who contracts to do work according to the contractor’s own methods and is subject to the engaging party's control only as to the final result of the work. Is the individual an employee? The key factor in determining whether the individual creator of a copyrighted work is an employee is the extent to which the employer has the right to direct or control the performance of the work. Other factors include where the work is performed, whether the employer's equipment is used, whether the individual maintains regular hours and the treatment of the individual compensation for tax purposes. Was the work created within the scope of his or her employment? Key factors in determining if the work was created within the scope of employment include: the degree to which the work is related to the employer's business; the extent that the employer's facilities and equipment are used to create the work; and the extent that the work is created on the employer's time. Can Copyright be jointly owned? When a work is prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole, then each of the authors jointly co-own the copyright in the work. That means each co-owner of a joint work has the authority to grant non-exclusive licenses to use the copyright of the work without the consent of the other co-owners. Any profits gained by a co-owner through such licenses must be shared equally with the other co-owners. The assignment of the entire copyright requires the consent of all the co-owners. Those entering into activities with others who may be considered joint owners should consider signing a written agreement defining the rights and obligations of each contributing author. Contact us at (281) 486-7700 for assistance.   Duration of Copyright How long do copyrights last? For works created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author's death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. For works created but not published or registered before January 1, 1978, the term endures for the life of the author plus 70 years, but in no case will the copyright expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047. For pre-1978 works still in their original or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured. For some works, this extended term is dependent upon whether a renewal was timely filed. Calculating the correct copyright term for pre-1978 works can be complicated. Contact us at (281) 486-7700. Must copyright on newer works be renewed? No. Works created on or after January 1, 1978, are not subject to renewal registration. As to works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.   International Copyright Protection Is there an international copyright? There is no such thing as an international copyright that will automatically protect an author’s works throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. Is your copyright good in other countries? Most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. The United States has copyright relations with more than 100 countries throughout the world and, as a result of these agreements, signatories honor each other's citizens copyrights. However, the United States does not have such copyright relationships with every country. Can foreigners register their works in the U.S.? Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty, or that are created by a citizen or domiciliary of a country with which we have a copyright treaty, are also protected and may therefore be registered with the U.S. Copyright Office.   Permissions How do I get permission to use someone's work? You can ask for it. If you know who the copyright owner is, you may contact the owner directly. If you are not certain about the ownership or have other related questions, you may wish to request that the Copyright Office conduct a search of its records for a fee. What is compulsory licensing? As a result of historic compromises involving the music recording industry, the Copyright Act contains compulsory licensing provisions governing the making and distribution of phonorecords of nondramatic musical works. Section 115 of the law provides that once phonorecords of a musical work have been publicly distributed in the United States with the copyright owner consent, anyone else may, under certain circumstances and subject to limited conditions, obtain a compulsory license to make and distribute phonorecords of the work without express permission from the copyright owner. The Copyright Office Regulations set out in detail the procedures that must be followed, while the Copyright Arbitration Royalty Panels determine the royalty fee that must be paid by the user under a compulsory license. How much of someone else's work can I use without getting permission? Under the fair use doctrine of the U.S. copyright laws, it is permissible to use limited portions of a work, including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. However, there are no bright line legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances. Could I be sued for using somebody else's work? How about quotes or samples? If you use a copyrighted work without authorization, the owner may bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. However, in cases of doubt, it is wise to obtain permission. How to find the copyright owner and seek permission. There are several ways to investigate whether a work is under copyright protection and to identify the copyright owner: Examine a copy of the work for such elements as a copyright notice, place and date of publication, author and publisher. If the work is a sound recording, examine the disk, tape cartridge, or cassette in which the recorded sound is fixed, or the album cover, sleeve, or container in which the recording is sold. Make a search of the Copyright Office catalogs and other records. For more information on searching copyrights and the limitations on copyright status investigations, call us at (281) 486-7700.  We can search the Copyright Office records for you. For cost estimates, contact us at (281) 486-7700. Searches of the Copyright Office catalogs and records can help determine the copyright status of a work, but they cannot be regarded as conclusive in all cases. The complete absence of any information about a work in the Office records does not mean that the work is unprotected. How can I obtain copies of someone else's work and/or registration certificate? The Copyright Office will not honor a request for a copy of registered work without written authorization from the owner, or from his or her designated agent if that work is still under copyright protection, unless the work is involved in litigation. Written permission from the copyright owner or a litigation statement is required before copies can be made available. A certificate of registration for any registered work can be obtained for a fee of $25. Caveat: Remember to search foreign works. Even if you conclude that a work is in the public domain in the United States, this does not necessarily mean that you are free to use it in other countries. Every nation has its own laws governing the length and scope of copyright protection, and these are applicable to uses of the work within that nation's borders. Thus, the expiration or loss of copyright protection in the United States may still leave the work fully protected against unauthorized use in other countries.   Copyright Issues on the Web What aspects of your site are protectable? Copyright protects original authorship fixed in tangible form. For works transmitted online, e.g., World Wide Web sites and homepages, FTP sites, Gopher sites, etc., the copyrightable authorship may consist of text, artwork, music, audiovisual material (including any sounds), sound recordings, etc. Revisions and updates Many works transmitted online are revised or updated frequently. For individual works, however, there is no blanket registration available to cover revisions published on multiple dates. A revised version for each daily revision may be registered separately, provided the revisions constitute copyrightable authorship. A separate application and filing fee would be required for each separately published update. Databases Under current U.S. copyright laws, copyright protection for databases is very limited. Unique and original displays and organizations of data can be protected, but the substantive information, the data itself, is not protected under current copyright law. The European Union, however, has taken steps to offer some additional database protections. Must permissions be obtained when you link to or frame another site? Generally, simply linking one web page to another does not infringe on any copyright that might attach to information on the linked page. Also, hyperlinking does not itself involve a violation of the Copyright Act because no copy is made merely as a result of the link. However, linking to or copying a web page that contains material known or suspected to be pirated from its copyrighted owner, without permission, may constitute contributory copyright infringement. On the other hand, copying and framing content created by another person into your site may well involve copyright infringement. Framing should not be undertaken without consulting a copyright lawyer and probably obtaining permission. Pitfalls in web site development agreements. As you develop your web site, we can help you avoid potential pitfalls in such areas as: Ownership of web site content, see work for hire doctrine; Liability for infringing materials/content supplied to developer or as supplied by third parties; Infringement via links to other internet resources and framing issues; Who has authority to revise or make derivative works? Licensing to use trademarks, copyrighted content, rights of publicity; Potential exposure to consumer protection laws in foreign jurisdictions; Misappropriations of person's likeness for a commercial purpose; Domain name and search engine registration and infringing metatags; Who will host and maintain the site? Electronic Communications Privacy Act; Federal Privacy Protection Act; and Children's Online Privacy Protection Act.   Copyright Fair Use and First Sale Doctrine What is fair use? Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work, including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. Fair use is a complete defense to copyright infringement; however, there are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances. When does it apply? Applying fair use is tricky and always involves some level of risk, because each circumstance is evaluated on the particular facts involved. In determining whether the fair use defense applies, courts must evaluate: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The cases are complicated and fact-intensive. For more information, call us at (281) 486-7700. What is the first sale doctrine? The first sale doctrine is a narrow limitation on an owner's copyright. Under this doctrine, an author's exclusive right to distribute the work publicly is cut off when the lawful owner of a copy or phonorecord sells or otherwise disposes of that copy. However, the right to distribute a copy purchased from the author (or someone else authorized to sell it) does not mean that the buyer has the right to make reproductions. The various exclusive rights enjoyed by the copyright holder are independent of each other. Thus, if a copy of a recording is distributed electronically, and both the original and a new copy exist, the right of reproduction is violated.   Artists and Authors Dealing with publishers and bidding a custom job. Remember to keep scope of use limited so that you may renegotiate license/use fees upon expansion of scope of use. Managing your copyrights and potential infringements. Use copyright notices to promote third-party contact for permission and licensing and to avoid potential innocent infringers. Also, document all potential infringing activities (e.g., screen shots of infringing online materials). Charging for your art: sources used to value works of authorship. See Licensing Royalty Rates by Gregory H. Battersby and Charles W. Grimes. How to collect royalties. The collection of royalties is usually a matter of private arrangements between an author and publisher or other users of the author's work. The Copyright Office plays no role in the execution of contractual terms or business practices. There are, however, copyright licensing organizations and publications rights clearinghouses that distribute royalties for their members. Copyright Licensing Organizations and Publications Rights Clearinghouses: ALCS (Authors Licensing and Collecting Society, United Kingdom) ASCAP (American Society of Composers, Authors and Publishers) The Authors Registry BMI (Broadcast Music Incorporated) CCC (Copyright Clearance Center) IMRO (Irish Music Rights Organization) MPLC (Motion Picture Licensing Corporation) National Writers Union Publications Rights Clearinghouse WATCH (Writers, Artists, and Their Copyright Holders) Related Government Agencies and International Organizations: European Copyright User Platform Federal Communications Commission U.S. Patent & Trademark Office WIPO (World Intellectual Property Organization)