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WHAT IS A COPYRIGHT?

Copyright protects original works of authorship. This includes literary, dramatic, musical and other types of artistic work. Copyright does not apply to titles, names, phrases, ideas, systems, processes or information. In other words, a work of authorship able to be fixed in a tangible medium is subject to copyright protection, provided there is some element of creativity in the work to be protected. Copyright protection gives the owner of a copyright the right to reproduce a work, prepare derivative works based upon it, distribute the work, perform the work publicly, and/or display the work publicly.

COPYRIGHT? TRADEMARK? PATENT?

As stated above, copyright protects works of authorship fixed in a tangible medium. However, copyright protection does not extend to all intellectual property. Rather, your intellectual property may more properly be protected through trademark or patent law. Trademarks identify the source or origin of goods or services and protect the "goodwill" associated with it. Patents primarily protect inventions. Further information on these areas is available through the United States Patent and Trademark Office.

WHAT IS PUBLICATION?

The Copyright Act defines publication as the distribution of copies or phonographic records of a work to the public by sale, other transfer of ownership, or by rental, lease or lending. The offer to distribute copies or phonographic records 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.

WHO CARES?

Before the Copyright Act was amended in 1978, copyright was generally secured by the act of publishing a work with notice of the copyright. Since the notice requirement is no longer mandatory, publication is no longer as significant in copyright law, but publication is still relevant in a few respects, such as effecting the deposit requirement for registration and the date that copyright duration is calculated. You will see the publication concept referenced many times throughout this page.

WHEN DOES A COPYRIGHT BEGIN?

Since the law was changed in 1978, copyright protection exists from the time a work is fixed in a tangible form. Tangible form means a form that is directly perceptible or perceptible with the aid of a machine or device. For instance, if you sing a song in the shower the song is not copyrighted, because it is not being fixed in a tangible media, but if you sing it into a tape recorder, it is fixed in a tangible media and copyright protection would apply.

WHY REGISTER?

Although copyright vests at the moment of fixation in a tangible medium, registration of your copyright with the United States Copyright Office is important for several reasons:

COPYRIGHT NOTICE (DO I NEED TO PUT THAT LITTLE "©" THING ON MY WORK?)

No, not anymore. Works published on or after March 1, 1989 are exempt from the notice requirement, though notice is still highly recommended as it puts the world on alert that you are claiming a copyright interest in your work. Also, in the event of an infringement action, infringers will be precluded from claiming "innocent infringement," thereby entitling the copyright owner to be awarded higher damages. For works published before March 1, 1989, the use of notice (i.e. © 1988 John Doe) was mandatory. If you published a work without notice it would revert to the public domain.

PROPER FORM OF NOTICE FOR VISUALLY PERCEPTIBLE COPIES.

This requires The Symbol (©) or the word copyright or the abbreviation "Copr", the year of first publication of the work, and the name of the owner of the copyright.

WHAT'S THAT P IN A CIRCLE?

The P in a circle is the copyright notice for phonographic records of sounds recordings (i.e., the recording itself as opposed to the underlying composition).

DURATION (HOW LONG DOES A COPYRIGHT LAST?)

This question is simpler for works created on or after January 1, 1978. The Sonny Bono Copyright Term Extension Act was signed into law on October 27, 1998. This Act extends the term of copyright protection for twenty years. Thus, for works created on or after January 1, 1978, the duration of the copyright will last for the life of the author plus seventy years (i.e., seventy years after the author's death). The copyright in a work created by one or more people lasts for seventy years after the last surviving author's death. For works for hire, anonymous and pseudonymous works, the copyright term is ninety-five years from first publication, or one hundred-twenty years from creation, whichever is shorter.

WORKS PUBLISHED BEFORE 1978.

For works published before January 1, 1978, this question gets a little trickier. Generally speaking, under previous law, a copyright was secured either on the date of publication of a work or the date the work was registered in unpublished form. In both instances, the term of copyright was twenty eight years from the date the copyright was secured. Thereafter, the copyright could be extended for a second term of twenty eight years, if a renewal was applied for within the last year of the first term. If not renewed, the copyright expired at the end of the first twenty-eight year term.

WORKS RENEWED BEFORE 1978.

Works that were originally copyrighted before 1950 and renewed before 1978 were granted an extension to their renewal term by an act of Congress (recently again extended). Thus, the renewal term now lasts for sixty-seven years (for a total of a ninety-five year copyright term).

Things get tricky for works that were in their first term when the law changed in 1978. Works copyrighted between January 1, 1950 and December 31, 1963 still had to be renewed in order to be protected for a second term. If renewed, the second term was extended to sixty-seven years, for a total of a ninety-five year term (see above). If renewal was not applied for, the copyright protection ended on December 31st of the twenty-eighth year.

Works copyrighted between January 1, 1964, and December 31, 1977, were automatically renewed for a second term. Thus, no renewal of the registration was required.

PRE-1978 WORKS THAT REMAIN UNPUBLISHED.

Works that were created but not published or registered before January 1, 1978, are automatically given copyright protection. The term of protection is calculated the same way as under the current law, i.e., life of the author plus seventy years (or the 95/120 year terms for works for hire, anonymous and pseudonymous works). However, in no case will a copyright in any pre-1978 unpublished work expire before December 31, 2002, and if the work is published before that date, the term will extend for another forty five years (through 2047).

For more information on the extended copyright terms, please see the United States Copyright Office website or the Copyright Office Circular New Terms for Copyright Protection (PDF or Text).

WHAT IS A WORK FOR HIRE? (DO I OWN IT OR DOES THAT GUY WHO PAID ME?)

Generally speaking, the person that creates a work is the author, and hence, the owner of that work. However, when a work is made for an employer (within the scope of employment), the EMPLOYER, not the employee is considered the author.

This seems relatively simple, but things can get a little sticky when determining whether someone is an employee or not. The law of agency is used to determine whether someone is an employee. For more information on works for hire and determining whether a work is a work for hire, please refer to the Copyright Office Circular Work Made For Hire Under the 1976 Copyright Act (PDF or Text).

In addition, works that are not created by employees, but which are commissioned, can qualify as a work for hire. In such a case the commissioner receives the ownership interest in the work rather than the artist. The Copyright Act defines a commissioned work as a work for hire in situations when the work is "specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional test, as a test, as an answer material for a test, or as an atlas." There must also be a written agreement signed by the parties that the work shall be a work for hire. Thus, only the aforementioned types of commissioned works, when a written agreement exists, can be deemed works for hire. Other types of commissioned works cannot. (This type of situation frequently comes into play in the motion picture industry with writers, directors, etc. The producer becomes the owner of the copyright).

WHAT IS A DERIVATIVE WORK?

A derivative work is a work that is based on or incorporates one or more already existing works. Examples of derivative works include multi-media works using preexisting elements, screenplays adapted from books, new musical arrangements, art reproductions or any other work that modifies, is derived from, or elaborates upon a preexisting work. To be copyrightable in its own right, a derivative work must contain enough elements of originality to qualify as new work. Further, the copyright holder of a derivative work will only obtain a copyright interest in his original contribution, not the underlying, preexisting elements.

It is extremely important to note that only the copyright owner of the underlying work, or one who has been granted permission to do so, may prepare derivative works. Unauthorized derivative works violate a copyright holder's exclusive rights under the copyright act. For more information on derivative works, please see the Copyright Office Circular Copyright Registration for Derivative Works (PDF or Text).

If you would like additional basic copyright information, please visit the U.S. Copyright Office website.

DISCLAIMER

This page is for informational purposes only. I am not your lawyer. If you have a legal question or problem, please retain counsel. If you do not know of a good lawyer, feel free to email me. I will try to direct you to an appropriate referral source in your area.

Of course, if you want to hire me as your lawyer, or if you have additional questions you may send me email about that as well.