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A brief look at some of the basics of copyright protection

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Copyright protection is an important area of law for authors, artists, and others who regularly produce original works of authorship. Understanding some of the basics of copyright protection is important for such individuals, as is working with an experienced attorney when the author’s rights under copyright law are infringed.

First of all, copyright protection only applies to original works of authorship, which includes works of literature, drama, music and sound recordings, architecture, and certain other intellectual works. Copyright law does not protect works that don’t have a fixed, tangible form of expression or works that do not represent original authorship. To be clear, copyright ownership does not subsist in the physical expressions of a work, but in the authorship of that work. 

Ownership of a copyright gives its holder the exclusive right to reproduce the work, make derivative works based upon the original, perform or display the work publicly, and distribute the work publicly. Copyright protection is not unlimited, though. For instance, copyright protection is limited by the law of “fair use” and by compulsory licensing requirements.

One important point to understand about copyright protection is that it exists at the time a work is created in a definite form. Publication is not necessary, and no formal registration is required. Like trademark protection, though, copyright registration comes with certain benefits. Similarly, publication still remains important for various reasons.

Some of the benefits of copyright registration are: it is necessary to file an infringement suit in court; it is prima facie proof of the validity of the copyright if registration is made before or within five years of publication; it entitles the owner to receive statutory damages and attorney’s fees if made within three months of publication or before infringement of the work; and it helps protect against importation of works that infringe on the copyright.

Under federal law, copyright protection generally takes precedence over equivalent state law rights, such as right of publicity claims. In our next post, we’ll take a further look at this issue, particularly as it was dealt with in a recent California case. 

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