Copyright Lawyers: What You Need to Know Before Meeting One

Copyright law is one of the four major areas of intellectual property law. Intellectual property law generally concert the rights of the creator of some for for intangible (not physical) property.

Copyright specifically applies to creative expressions, sometimes referred to as “works of authorship”. Throughout this article, we refer to creating a work as “authoring” the work. Don’t let the word “author” fool you. Copyright covers things that are not necessarily physically written. Examples of things that may be the subject of copyright include: books, music, poems, plays, dance routines, graphic images, website design or content, photography, paintings, sculpture, patterns, drawings, etc.

There are several major requirements for an expression to be covered by copyright. The expression must be:

• Creative - It is important to remember that the ideas that someone expresses are not subject to copyright. It is the creative manner in which those ideas are expressed. For example, I can write a history book that is full of facts. The facts are original. How I present those facts in a creative manner to capture my audience’s attention is creative. Blank forms or recitations of facts (such as phonebook) would not be creative in nature.

• Original - This means that the creative expression was thought up and delivered by the individual claiming copyrights. If the ideas was previously disclosed by another creator, it may be either subject to copyright or open to the public. In either event, the originality is lost. The work cannot be subject to copyright protection.

• Transfixed to a tangible medium (such as written, recorded, painted, photographed, etc.).

Copyright is the subject of federal law. The current standards for copyright law came about through the Copyright Act of 1978. There are no state copyright laws. Though, there may be state laws that allow you to enforce your property rights as established under federal law.

How Do I Acquire Copyrights?

Pursuant to the Copyright Act, copyright protections apply to all works that meet the aforementioned requirements. There is no requirement for registration for works created after January 1, 1978,

The Copyright Act does provides various benefits for copyright owners who register their works, including:

• Legal Actions - The copyright holder must register her rights before bringing an infringement action against a third party.
• Damages in a Legal Action - Registering a copyright within five years will allow a plaintiff to recover statutory damages and attorneys fees in a later infringement action. This would be in addition to any actual damages or loss of profits.
• Registering within 5 years of publication creates a presumption that the copyright is valid. This reduces the complication of proving infringement later.

How Long Do Copyrights Last?

Since the passage of the Copyright Act in 1978, copyrighted works are protected for the lifetime of the creator plus 70 years. If the work is made-for-hire, the term is the shorter of 95 years from the date of first publication or 120 years from the date of creation.

The period of protection prior to 1978 was based upon whether the work was published or registered. The below diagram explains the rules:



This charge provides an overview of the various laws applicable during the various time period. If a copyright expires and is not renewed (if applicable under the existing law), the work falls into the public domain. This means that anyone is free to use or produce the work.

How Do I Register My Copyright?

The registration process requires the following steps with the United States Copyright Office:

• Complete copyright registration application,
• Pay the relevant filing fee,
• Submit two “best edition” copies of the work for deposit in the Library of Congress.

To complete the application, you will need:

• the title of the work;
• the name, birth year (or death year), and citizenship of the author;
• whether the work was work made for hire;
• what the author contributed to the work;
• the year the work was created; the date of publication (if published);
• The claimant’s name and address;
• whether the work (or a prior version of the work) has been registered; and
• whether the work is a derivative work or a compilation that incorporates preexisting work.

The Copyright Act requires two copies of the “best edition” of all published works within three months of publication.

Do I have to Give Notice of My Copyrights?

In summary, no. For works published after March 1, 1989, you need not give notice of your copyright in order for the copyright to be valid. One advantage, however, of giving notice is that an infringer will be unable to assert a defense of “innocent infringement.” The innocent infringement defense will reduce the damages you can recover in an infringement lawsuit.

Notice should reasonably make others understand that the work is subject to copyright claims. Here are the recommended elements:

1) Employ the symbol © or the word Copyright

2) Include the year the work was published, and

3) Include the name of the owner of copyrighted work.

Here is an example: Copyright 2018 Smith & Jane. Of course, this is just a recommendation. Anything that reasonably puts the public on notice that you are claiming copyrights in your authored work will be sufficient.

Who Has Copyrights in an Authored Work?

The holder of a copyright is the original creator of that work. There are, however, situations in which a non-creator can be the copyright holder.

One such situation is when the creator is hired to create the authored work on behalf of someone else. This is known as “work for hire”. The employer is considered the creator for purposes of copyrights on any work created within the scope or course of employment.

The phrase “course or scope of employment” can be ambiguous. If called to determine whether an employee or independent contractor’s creation is intellectual property of the employer, you should consider:

• How much direction and control did the employer have over the creation of the work?
• What level of skill is required to create the work?
• What is the status of the creator with regard to the employer (employee or independent contractor)?

Generally, the greater the control exercised by the employer, the more likely the work is to be subject to copyright.

The higher the level of skill required to create the work, the more likely it was that the work was a specialized service of the employer.

An employer will only own rights in a creation by an independent contractor if there is an explicit agreement concerning what the independent contractor is employed to create. Also, the created work must fit into one of the following categories:

• contribution to a collective work,
• part of a motion picture or other audiovisual work,
• a translation,
• a supplementary work, or
• a compilation,

It is possible for two or more creators to work together and jointly acquire copyrights in their creation. This is the case when the contributions to the ultimate creation are inseparable and interdependent. Each author must contribute to the original expression. Simply providing the inspiration is inadequate. In such a case, each author holds an undivided interest in the whole work.

If a copyright is jointly owned or held, each author can exploit the work without the consent of the other owners. Each co-owner would, however, be accountable to the other owner(s) for profits derived from that exploitation.

While the copyright interest is generally inseparable, the rights in a copyright can be passed on to one’s heirs or devises at death.

Issues of who is the rightful owner of copyrighted material is a common form of employer-employee legal action. 

What are the Benefits of Having a Copyright?

As the name states, copyrights provides the holder with specific rights.

Specifically, the copyright holder has the exclusive right to reproduce the work, distribute copies of the work, make adaptations based on the work (called “derivative works”) and perform or display the work publicly.

Having an exclusive right to do these things does not obligate an individual to actually do them. It simply prevents others from so doing without the permission of the copyright holder. In fact, the holder of a copyright oftentimes will transfer or license her copyrights to a third-party for the purpose of commercializing those rights.

Using or reproducing a copyrighted work without permission is known as “infringement”. Examples of infringement could the wholesale copying of the work (particularly for commercial purposes) or the production of derivative works that are not adequately distinguished from the original creation.

Copying the original work seems very obvious case for infringement. This can be done by photocopying, re-writing, photographing, or otherwise taking major portions of a creative expression and reproducing it.

Determining what is a derivative work is a bit more tricky. In this case, the derivative work does not have to be in the same creative medium as the original work. For example, painting a work that is drawn from an existing photograph could constitute copyright infringement. Use the key note sequence from one song to write another song can constitute infringement. In either event, the copyright holder has the legal right to seek recourse against the infringer to stop the infringement or to seek monetary damages.

The Fair Use Doctrine

Holding a copyright does not completely restrict the use of the copyrighted work for all purposes. There are limited set of circumstances under which a third party may employ copyrighted work. This is generally known as “Fair Use” of the copyrighted material.

Whether a third party’s use constitutes fair use is very subjective to the work and the situation. The generally categories of use that may qualify as fair use include:

• criticism,
• comment,
• parody/Satire,
• news reporting,
• teaching,
• scholarship or research.

If the use of the copyright falls into one of these categories, you must still examine certain aspects of the use further.

First, was the use commercial in nature? A commercial use of copyrighted work is far less likely to be fair use than use for a non-profit or public purpose. This makes it particularly difficult for for-profit businesses to employ a copyrighted work and defend that use as fair use.

Second, how much of the work was used? Wholesale copying of a work for any purpose is not likely to fall into fair use. Excerpts or small portions of a work for a specific purpose is far more likely to constitute fair use.

Lastly, what is the economic effect of the use? Will allowing the use of the work cause a negative economic or financial impact on the holder of the copyright?

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