Copyright law can be confusing for individuals or businesses whether already embroiled in an infringement dispute or simply exploring their options for protecting their creative works. I am attorney Lawrence G. Townsend, and I can take the guesswork out of copyright-related issues.
Please read the information below for answers to frequently asked questions about copyright law. Otherwise, call my law office in at 415-906-2792 to schedule a meeting.
1. What Can Be Copyrighted?
Copyright is available under 17 U.S.C. Section 102 to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Works of authorship include:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
To be “original” means only that the work was created by the author, i.e., it was not copied from other works. Under Section 102(b), copyright does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” In short, copyright protects the expression of ideas, not ideas themselves.
2. What Exactly Are The Rights In Copyright?
Under 17 U.S.C. Section 106, the copyright owner has the exclusive right to do or authorize others to do any of the following:
- To reproduce the copyrighted work in copies or phonorecords
- To prepare derivative works based upon the copyrighted work
- To distribute copies or phonorecords of the copyrighted work to the public by sale or transfer of ownership, or by rental, lease, or lending
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform 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, to display the copyrighted work publicly
3. What Is A Work Made For Hire?
Under Section 101 of the Copyright Act (Title 17 of the U.S. Code), work made for hire is:
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to certain works that are collaborative in nature, e.g., as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, but only if the parties expressly agree in writing signed by them that the work shall be considered a work made for hire.
If it is a work made for hire, the copyright owner is the hiring party, and the hired party has no rights in the work. If, on the other hand, the hiring party has not complied with the strict requirements to make it a work made for hire, the creator of the work is the owner. Under such circumstances a work may only be acquired by the hiring party by an assignment from the author and payment of any agreed-upon consideration.
4. What Is Copyright Infringement?
Copyright infringement occurs when there is copying of a work by an infringer to the degree that the accused work is “substantially similar” to the infringed work. Copying occurs only when the infringer has had “access” to the infringed work, i.e., an opportunity to see, hear or otherwise perceive the infringed work. Absent such access, no copying can occur. For example, it is possible for two songwriters to write the same melody; if the second songwriter had never heard the first songwriter’s work, there could be no copyright infringement, even if the two works are indeed substantially similar.
5. What Are The Remedies For Copyright Infringement?
Under 17 U.S.C. Sections 503 and 504, a copyright owner may seek an injunction in federal court and a monetary recovery, including actual damages and/or the infringer’s profits, illicitly gained. Alternatively, a copyright owner may seek statutory damages for infringement that may reach up to $150,000 per infringed work. In addition, under Section 505, attorneys’ fees and costs may be awarded under certain circumstances.
6. Is It Necessary To Register A Copyright?
The author owns the copyright in a work from the moment of creation. Hence, registration is not necessary to perfect ownership. However, there are significant advantages to timely registration. Under Section 411, registration is necessary before any suit for copyright infringement can be filed. Also, if the registration has been obtained before the infringement commences, the copyright owner may be entitled to an award of statutory damages and attorneys’ fees under Section 412; without a pre-infringement registration, there can be no such award.