Copyright 101

by | Apr 4, 2016 | Blog, Business Formation, Corporate Law

Copyright 101: Protecting Creator Rights and their Works

Original thoughts are valued by society. We encourage individuals to bring forth fresh, innovative ideas to the public sphere in order to entertain, inspire, and enlighten audiences everywhere. As more and more new ideas come into the world, problems of originality and mimicry arise between creators. Lawsuits are born from the turmoil between two creators, arguing over who owns the “rights” to their influential and inventive creation. This tumultuous environment often discourages many from revealing their ideas, for fear of being cheated or conned. As a result, creativity diminishes. Thankfully, laws have been established so new concepts and creations are accompanied by certain protections, known as copyrights.

Requirements for Copyright Protection

Unfortunately, not everything satisfies the necessary requirements in order to receive copyright protection. Copyrights protect original works that are “fixed in a tangible media.” The standard of originality requires that the work is original to the author, and that the alleged author has not infringed on the copyrights of another. In the event that two authors independently produce the same idea, established in the same manner, they are both entitled to copyrights, as there was no influence of one on the other.

The concept of the work being expressed in a “tangible medium” signifies that the work is contained within a format that is considered permanent or stable, so that the work can be “perceived, reproduced, or otherwise communicated for a period of more than transitory duration” (See US Code Section 101). Examples of mediums that satisfy the requirement of fixation can include a work that is written down or a musical presentation broadcasted through the radio. These are excellent examples of concrete methods of expression as opposed to the unrecorded, spoken words of a person. The fundamental idea of fixation is that the moment the original work manifests itself through a physical medium, is the moment copyright protections are granted to the author.

Eligible for Copyright Protection?

The list of intellectual properties that are entitled to copyright protections is vast, and includes but is not limited to:  literary works (software code included), musical works and lyrics, dramatic works as well as any accompanying music, pictorial, graphic, sculptural works such as portraits and photographs, choreographic works, audio visual works, such as motion pictures, architectural works, and sound recordings. Items such as compilations or collections of existing works, such as a group of articles within a scientific journal, also qualify for copyright protections, separate from the copyrights of the individual articles. Copyright safeguards the expression of the work, and not the ideas or facts within it.

Benefits of Exclusivity and Originality

It is wonderful that original works and ideas of creators are entrusted with a bundle of exclusive rights over their intellectual property. However, what good is it if one does not understand the true intrinsic value of these copyrights? The first of these rights is the right to copy right. As the name suggests, it is the right to copy the work; in other words, exclusive reproduction. The second of these rights is the right to prepare and create any derivative works based upon the copyrighted material, such as modifications and adaptations of the work. The third of these rights is the right to distribute copies of the work to the public, through the following methods: by sale, by transfer of ownership, by rental, lease, and/or lending of the right. If the copyrighted material is one that can be performed (i.e. musical, dramatic, choreographic, etc.), then the fourth and fifth rights protect the ability to publicly display and perform the work. The sixth of these rights, exclusively refers to sound recordings, and covers the right to perform the material publicly, through the use of digital audio transmission.

These rights are often described as a “bundle”, due to the creator’s ability to assign, distribute, and/or license one or many of these rights, while holding other rights in the sphere of their personal discretion. One can assign copyright rights only through a written assignment, while the licensing of certain non-exclusive rights may be oral and/or implied. Depending on the creator’s capabilities in exercising all of these rights, assigning or licensing some of them can help promote the work and increase profits and exposure for the creator. These rights do not last forever as determined by the US Code. Typically, the duration of copyrights is the entirety of the creator’s life plus an additional seventy years from the creator’s death.

Employer Copyrights and Commissions

Certain situations arise however, where the creator of the work does not retain the copyright, but rather the creator’s employer. A work made for fire is defined by the US code, as an employee’s work created within the scope of their employment, or a special type of commissioned work. These works that are specially ordered or commissioned are typically classified as being used for: a contribution to a collective work, a translation, a compilation, instructional text, a test or answer material for a test, or an atlas. As long as the parties clearly agree, in writing, that the work is to be considered as a work made for hire, the copyrights belong to the employer.

As a result, employers will ensure that they include this expressed language within the employment agreement which often states that all works of authorship made by its employees, within the scope of employment, are “works made for hire” along with a proper assignment clause of the rights of authorship. This serves as a solid defense mechanism from any potential court cases that may attempt to rule in favor of the employee in retaining their copyrights. “Works made for hire” copyrights usually last either 95 years from publication, or 120 years from creation.

Copyright Notices and Registration

In spite of the guaranteed rights one receives after fixing an original work, it is still highly recommended that they create a copyright notice and register their authored work with the US Copyright Office. You have probably seen the famous and well-known copyright notice on many works such as books, music, and even certain media on the internet. It is recommended that one display the notice on visual copies of their work in areas where potential copiers will see it. This prevents anyone from using the defense of “innocent infringement”, in the case of a lawsuit. Section 401 establishes that there are three essential elements to a proper copyright notice:

  1. The first is the symbol © or the word “Copyright”. In the event that the work is present on mediums such as the Internet or sold internationally, it is suggested the author place both the symbol and the word.
  2. The second element is the date of the first publication (if it will be or has already been published) or the date of creation (if the work will not be published), followed by any other publication or creation dates of different versions of the work.
  3. Lastly, the name of the owner of the copyright is the third and last element of a copyright notice.

If this format is followed correctly, the result will be the following:
© Copyright 2015 David E. Cruz.

Copyright registration is a more formal process and involves the act of registering with the US Copyright Office. Thankfully, this process can be initiated at any time within the term of copyright. In order to register the copyright claim, one must file the Copyright Office form along with a fee and a “specimen” of the copyrighted work. There are several reasons why one would want to register their work. The primary reason is that registration is a prerequisite to the filing of a lawsuit of copyright infringement. It helps build a stronger wall of protection, in the event of infringement. Furthermore, if registration is not made within three months of publication, or one month after infringement has been discovered, the copyright owner would be unable to receive statutory damages or attorneys’ fees. Another benefit of registration is the prevention of pirated and counterfeit goods from being imported into the US.

Remedies for Copyright Infringement

While the violations of copyright can result in criminal punishment, it is typically a civil matter. In the event a creator believes their copyrights have been infringed upon, they must prove three critical elements of infringement: ownership of a valid copyright; existence of the copying of original elements from the work; and the claim that the suspected infringing work is “substantially” similar to the copyrighted work. In other words, it should be determined whether an everyday person would view both works as exceptionally alike, while still taking into consideration if the infringing creator had access to the original work. If copying is proven, then the court will take into account whether or not the copying was “qualitatively important” to the work as a whole, and considering how much was copied.

In the event where the court rules that substantial infringement did indeed occur, the original author has several options in which they can receive damages from the infringer. Remedies range from prohibitory injunctions on the infringing work, monetary damages and additional profits from the infringer, and statutory damages ranging from a minimum of $750 to $30,000, for each work infringed.

Fair Use

The digital age has brought upon us a significant issue regarding the topic of fair use, the right to copy or use a part and/or all of a copyrighted work, without the copyright holder’s permission or objection. The Digital Millennium Copyright Act addresses this as it sets the standard by which fair use will be determined. These four elements are purpose, nature, amount, and effect on the potential market of the work. One must examine each thoroughly, and make an informed decision based upon the determination whether or not each section satisfies the “fair use” standard.

  1. The first element to consider is the “purpose and character of the use”. Instances where the work is used for works of criticism, comment, teaching, scholarship, news reporting, or research are not grounds for copyright infringement. This factor acknowledges that a transformed work that is based on the “infringed original” work is potentially fair use. Parodies are excellent examples, and are considered as an entirely new work, separate from the original so long as it does not constitute mere copying. Another detail examined is whether the new work is made for commercial, non-profit, educational, or even personal purpose. The fact that one may potentially be profiting by using another’s work is a significant issue for the courts, and severely undermines any argument for fair use.
  2. The second aspect involves the “nature of the copyrighted work”, or the creative value of the original. This category establishes that facts and ideas are not protected; only their expression is. This factor also proposes the idea that some works have “thin” copyright protection, such as documents or operation manuals that deal with mostly pure information.
  3. The third factor examines how much was used in relation to the original work as a whole. Minimal copying is, in most cases, seen as fair use, as opposed to the entire work being copied. The sole exception to this rule is whether the piece of work that was copied, no matter how small, is determined to be the most important part of the copyrighted work. This substantial analysis looks to preserve the “heart” and intent of original works.
  4. The fourth and final factor is an examination of the potential effect the “infringement” has on the market value of the copyrighted work. If the copied work is used in a way that acts as a substitute or lowers its value, even in the event that the original is free, then the case of fair use is weakened. Copied works that intend to serve a different audience or purpose, normally weigh in favor of fair use.

The Evolution of Copyright Enforcement

The discussion of copyrights has intensified with the rise of technological advancements and social media. Websites such as YouTube are pools of creativity and innovation. Each day, more and more people are uploading new works, as well as infringing on multiple copyrights on the false grounds of fair use. It is vital that copyrights are enforced within the internet community, but not to a degree where creativity and commentary are inhibited, despite fair use protections. Blind copyright claims and strikes have put copyright law in a negative light, in the eyes of the online community, but that is not to say that creators should not uphold their exclusive rights. Instead, a proper examination and open dialogue between creators and fair use supporters will help calm the tides of distrust and resentment, pushing for a world of perpetual creation and proper access to these works.

If you are a creator and would like to discuss copyright protections for your work, please contact the Law Office of Mark Smith, PLLC here.