Intellectual Property: Copyrights

February 28, 2022

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Intellectual property (IP) is the general term for diverse categories of intangibles that are subject to ownership (legal title) and other rights under state and federal laws in the US, and most other jurisdictions throughout the world. This series discusses the principal categories of IP protected by US law, the nature and scope of the protection afforded, and related procedural considerations.

This series provides an overview of the principal categories of intellectual property (IP) under US law and related practice considerations. It discusses patents, trademarks, copyrights, mask works, and trade secrets. For each of these categories of IP, the series describes the legal authority governing protection, protected subject matter and the scope of protection, the acquisition and maintenance of rights, and enforcement considerations, including for claims of infringement, misappropriation, and dilution

Copyrights

  1. Legal and Regulatory Authority for Copyrights
  2. Copyrightable Subject Matter
  3. How Copyrights are Secured and Maintained
  4. Scope of Copyright Protection
  5. Copyright Enforcement
  1. Legal and Regulatory Authority for Copyrights

Copyrights are regulated in the US by the US Copyright Office under the authority of the federal Copyright Act. The Copyright Office website provides legal and regulatory information, as well as procedural guidance, relating to copyright protection.

  1. Copyrightable Subject Matter

Copyrights attach to original works of intellectual and artistic expression in multiple categories, including:

  • Books and magazines.
  • Photographs.
  • Movies.
  • Music.
  • Software programs.
  • Drawings.
  • Graphic designs.
  • Business plans and charts.
  • Websites.
  • Paintings.
  • Sculpture.
  • Fashion.
  • Architecture.
  • Live performances.

Copyright law can also protect a company’s data or databases that qualify as compilations. The underlying facts of data that make up a data set are not copyright protectable, but the selection and arrangement of the data can be protected if the compilation meets the required minimum level of originality.

Courts have established that the standard of originality required for copyright protection is low. For example, similar photographs of the same scene are each protected by copyright. In addition, the extent or lack of intellectual effort or creativity is irrelevant. The Copyright Act expressly excludes from copyright protection works of the US government, for example, the text of statutes, court opinions, and census reports.

  1. How Copyrights are Secured and Maintained

Copyrights arise, by operation of law, immediately on a work being committed to paper, film, computer memory or disk, or other medium. The Copyright Act describes this as “fixed in any tangible medium of expression” (17 U.S.C. § 102). Publication of the work is not required.

Ownership of a copyright automatically vests in the author (or authors) of the work (depending on the type of work, this might be a writer, artist, musician, or programmer) or, if the work qualifies as a work made for hire, the employer of the creator or the commissioning party. To qualify as a work made for hire, the work must be either:

  • Created by an employee in the scope of his or her employment.
  • Specially commissioned, where:
  • the creator of the work and the commissioning party agree in writing that the work is a work made for hire and
  • the work falls within one of nine limited statutory categories.

Copyrights may be registered in the Copyright Office, but registration is not required for rights to attach.

For registered and unregistered works first published on and after March 1, 1989, use of a traditional copyright notice is optional. Ho wever, use of the copyright notice is beneficial to discourage infringement and may provide evidentiary advantages in litigation.

3a. Registered and Unregistered Copyrights

Copyright registration is accomplished by filing an application with the Copyright Office, paying the specified filing fee, and, in most cases, depositing a copy (or excerpt) of the work with the Library of Congress.

In practice, copyrights are not always registered by their owners, merely by default or for various reasons. The registration process can be cumbersome and expensive, especially for businesses with many copyrighted works in certain categories (such as dynamic websites). No general blanket registration process exists (except in limited cases, for example, for serial works, such as newspapers and other periodicals), so each individual work, and each new version and edition, generally must be separately registered.

Furthermore, because registration requires at least partial public disclosure of the work, copyright owners often decide not to register certain kinds of works in the interest of confidentiality and to preserve any independent protection of the work as a trade secret. For example, registration of software programs requires a deposit of source code with

limitations on the copyright owner’s ability to block out portions containing trade secrets.

A copyright owner must generally register a copyright before bringing a related copyright infringement action in federal court.

3b. Transfer of Copyright Ownership

The owner of a copyright can transfer title or grant a security interest in the copyright in a written document signed by the owner

, and documents evidencing transfers and grants can be recorded in the Copyright Office.

The Copyright Act gives authors, and for deceased authors certain of their family members, the right to terminate copyright transfers under certain conditions.

  1. Scope of Copyright Protection

The owner of a copyright enjoys certain exclusive rights with respect to the protected work, including the right to:

  • Reproduce the work (including making electronic copies).
  • Create adaptations (derivative works) based on the work.
  • Distribute copies (by sale or rental).
  • Display or perform the work publicly.

Any or all of these exclusive rights can be individually licensed by the copyright owner on an exclusive or non-exclusive basis. The duration of copyright protection is limited and varies depending on:

  • The nature of the work.
  • The date, place, and circumstances of its creation.
  • Whether and when it was first published.
  • Whether renewal was available and sought.

For works created on or after January 1, 1978, the term of copyright generally is:

  • 70 years after the author’s death, for a work created by a single author and not as a work made for hire.
  • 70 years after the last author’s death, for a work of joint authorship that is not a work made for hire.
  • For works made for hire, and pseudonymous and anonymous works, the earlier of:
  • 120 years after creation or
  • 95 years after first publication.

Copyright protects only original expressions of ideas from unauthorized copying, not the ideas or concepts being expressed (though ideas might be protected as trade secrets or be embodied in a patentable invention). For example, plot devices in a book generally can be freely appropriated in a second, similar book, if the text of the later book is original. Similarly, even if a new work happens to be similar or identical to an earlier work, there is no copyright infringement unless the earlier work was actually copied by the author of the new work.

  1. Copyright Enforcement

A copyright owner has grounds to bring a copyright infringement action in federal district court against a defendant that exercis es any of the owner’s exclusive rights without permission.

A copyright owner must generally register a copyright before bringing a related copyright infringement action in federal court. However, if registration is refused after the application, deposit, and fee are delivered to the US Copyright Office, the applicant can still file an infringement action if notice of the action and a copy of the complaint are served on the Register of Copyrights. (17 U.S.C. § 411.)

Causes of action are also available for:

  • Contributory infringement. A defendant that causes, induces, or materially contributes to an infringing act, and knew or should have known of an infringement, may be liable for contributory infringement.
  • Vicarious infringement. A defendant with control over the actions of a direct infringer and a financial stake in the infringement can be charged with vicarious infringement.

The defendant in an infringement action has several affirmative defenses, depending on the facts in the case, including:

  • The defendant’s work was created independently or without copying protected elements of the plaintiff’s work.
  • The copying of the plaintiff’s work was not substantial.
  • A statutory fair use exception applies. For more on the fair use doctrine, see Practice Note, Copyright Fair Use.
  • The defendant did not know or have reason to know that it was infringing. This may result in a reduction of statutory damages, but will be unavailable if the defendant had notice of the plaintiff’s copyright.

Judicial remedies that can be awarded for copyright infringement include:

  • Injunctive relief (preliminary or permanent).
  • Monetary damages, which may take the form of:
  • the copyright owner’s lost profits and an accounting of the infringer’s profits or
  • statutory damages, which the copyright owner may elect to recover instead of direct damages, but only if the copyright was timely registered.
  • Costs and attorneys’ fees, which may be awarded in the court’s discretion, but only if the copyright was timely registered.

In addition to civil liability, the Copyright Act provides for criminal prosecution of certain acts of willful infringement.

Founded by attorneys Andreas Koutsoudakis and Michael Iakovou, KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum as it relates to their business including day-to-day operations and compliance, litigation and transactional matters.

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